Morning all. I've read so much stuff on this subject and I've read that if you pay the relevant council for the PCN after the bailiffs have been instructed that the enforcement power ceases to be bound. Has anyone done this? if so was the clamp removed when the bailiffs were advised of the same? Our issue isn't against Marston but Bristow and Sutor.
Our car is on HP (3yrs to go on a 4yr HP plan) no deposit was paid when we bought the car, £150 trade in for our old beat up car so there is absolutely no beneficial interest to us in the car as it's worth less now than when we bought it. Hubby did appeal the PCN and then lockdown happened and he never heard anything further (he has the emails he sent to the council). Bailiff's came and demanded a large sum of money or they would clamp the car. Hubby managed to agree a payment plan which was adhered to fully until he missed 1 payment in August (mind on other things, our daughter who is disabled and lives at home is in and out of hospital and has had to undergo various medical procedures. She is actually having further surgery next week. The car is also essential to his work. He is employed as a live in carer working 3 days on, 3 days off and it is part of the terms of his employment that he has to have a vehicle. Due to the missed payment the Bailiff came back on Wednesday and clamped the car. Refused to discuss options to pay demanding a huge amount of money to remove the clamp. He is now refusing to discuss with husband terms to remove the clamp. Hubby has phoned Bristow and Sutor numerous times to try and resolve the issue and they just keep telling him that they can't discuss it until the Bailiff has reported back to them.
Sorry if this is a bit disjointed, at our wits end, hubby is due home this morning from his 3 days away and is going to try and speak with Marston and Sutor again. Any advice as to what we can do would be greatly appreciated.
Thank you.
Bristow and Sutor Refusing To Remove Clamp
Re: Bristow and Sutor Refusing To Remove Clamp
Bailiffs cannot clamp cars on hire purchase.
Hire purchase goods are never "bound" under the enforcement power because it’s not owned by the debtor.
There is a lot of disinformation posted on certain individuals' websites stating bailiffs can clamp cars on HP. The case law that stated car on hire purchaser cannot be taken into control by bailiffs is: Mulwanyi v Newlyn Plc on 7 April 2017.
It was a case involving a bailiff company, Newlyn Plc, who clamped a VW minivan that was on hire purchase, and he came to me and got an injunction at the Central London County Court to return his vehicle.
During the hearing, the solicitor for Newlyn Plc Peter Felton Gerber of Feltons Law tried to persuade the court that the enforcement agent should be able to discharge to the finance company the amount outstanding on the finance agreement, by selling the vehicle and paying the finance company out of the proceeds and with the balance remunerating themselves and the creditor by apportioning the proceeds according to regulation 13 of the Taking Control of Goods (Fees) Regulations 2014 and then paying any remaining monies to the debtor. This argument failed since the car is subject to an HP agreement, it is not 'goods of the debtor' and accordingly, are not bound goods under Paragraph 3 of Schedule 12 of the Tribunals Courts and Enforcement Act 2007 and cannot be taken according to Paragraph 10 of Schedule 12 of the Tribunals Courts and Enforcement Act 2007.
During his effort, the solicitor representing Newlyn Plc at the hearing made personal attacks on me, which I thought was very unprofessional, and accordingly, the judge took a very dim view.
My client, Mulwayi was given a replacement hire-purchase car (minivan) from VW Finance because his hire one being held by Newlyn Plc was involved in a road accident being back-ended. Its onboard tracker located the vehicle moving across London on the back of a truck. VW Finance then re-took the original vehicle after someone tried to get a replacement V5 from the DVLA.
Mulwayni got his damages and costs paid. Despite this, Newlyn Plc, and other member firms of their trade association, CIVEA (https://www.civea.co.uk/) continue to allow its members to clamp hire-purchase vehicles.
The Hire purchase agreement states the goods belong to the lender until the option to purchase is exercised, until then your rights to the vehicle are only that of a hirer - or words similar to effect.
The only way to get a clamp off a hire purchase car is to get an injunction against the creditor or council instructing the bailiffs.
We do not injunct bailiffs or their firms because they get lawyers to frustrate the process as our experience with the Mulwayi case taught us.
When the clamp is off, the council pays the legal fees and your damages.
Damages come in two subsets. They are Special Damages and General Damages.
Special damages include and continue for each day the car remains clamped.
You may recover your loss of earnings if the car is used in someone’s work.
Your wasted hire purchase payments,
Wasted insurance and car tax.
All taxi receipts, but you must exhibit them.
Hire car costs.
£35 one-off charge for removing a Warning of Immobilisation notice attached to the car using a non-removable adhesive.
General damages are at the discretion of the court and are £100 for the first day they clamped the car, then £35 a day for each subsequent day continuing until they released the car.
The council pays your costs, and they can sort it out with the bailiff company later.
It makes it financially toxic for the bailiff and his firm to continue enforcement, but it doesn't mean you are off the hook for the debt.
Do not phone the bailiff company. They will mess you about.
Hire purchase goods are never "bound" under the enforcement power because it’s not owned by the debtor.
There is a lot of disinformation posted on certain individuals' websites stating bailiffs can clamp cars on HP. The case law that stated car on hire purchaser cannot be taken into control by bailiffs is: Mulwanyi v Newlyn Plc on 7 April 2017.
It was a case involving a bailiff company, Newlyn Plc, who clamped a VW minivan that was on hire purchase, and he came to me and got an injunction at the Central London County Court to return his vehicle.
During the hearing, the solicitor for Newlyn Plc Peter Felton Gerber of Feltons Law tried to persuade the court that the enforcement agent should be able to discharge to the finance company the amount outstanding on the finance agreement, by selling the vehicle and paying the finance company out of the proceeds and with the balance remunerating themselves and the creditor by apportioning the proceeds according to regulation 13 of the Taking Control of Goods (Fees) Regulations 2014 and then paying any remaining monies to the debtor. This argument failed since the car is subject to an HP agreement, it is not 'goods of the debtor' and accordingly, are not bound goods under Paragraph 3 of Schedule 12 of the Tribunals Courts and Enforcement Act 2007 and cannot be taken according to Paragraph 10 of Schedule 12 of the Tribunals Courts and Enforcement Act 2007.
During his effort, the solicitor representing Newlyn Plc at the hearing made personal attacks on me, which I thought was very unprofessional, and accordingly, the judge took a very dim view.
My client, Mulwayi was given a replacement hire-purchase car (minivan) from VW Finance because his hire one being held by Newlyn Plc was involved in a road accident being back-ended. Its onboard tracker located the vehicle moving across London on the back of a truck. VW Finance then re-took the original vehicle after someone tried to get a replacement V5 from the DVLA.
Mulwayni got his damages and costs paid. Despite this, Newlyn Plc, and other member firms of their trade association, CIVEA (https://www.civea.co.uk/) continue to allow its members to clamp hire-purchase vehicles.
The Hire purchase agreement states the goods belong to the lender until the option to purchase is exercised, until then your rights to the vehicle are only that of a hirer - or words similar to effect.
The only way to get a clamp off a hire purchase car is to get an injunction against the creditor or council instructing the bailiffs.
We do not injunct bailiffs or their firms because they get lawyers to frustrate the process as our experience with the Mulwayi case taught us.
When the clamp is off, the council pays the legal fees and your damages.
Damages come in two subsets. They are Special Damages and General Damages.
Special damages include and continue for each day the car remains clamped.
You may recover your loss of earnings if the car is used in someone’s work.
Your wasted hire purchase payments,
Wasted insurance and car tax.
All taxi receipts, but you must exhibit them.
Hire car costs.
£35 one-off charge for removing a Warning of Immobilisation notice attached to the car using a non-removable adhesive.
General damages are at the discretion of the court and are £100 for the first day they clamped the car, then £35 a day for each subsequent day continuing until they released the car.
The council pays your costs, and they can sort it out with the bailiff company later.
It makes it financially toxic for the bailiff and his firm to continue enforcement, but it doesn't mean you are off the hook for the debt.
Do not phone the bailiff company. They will mess you about.
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Susan Smith
- Posts: 3
- Joined: 12 Sep 2021 07:58
Re: Bristow and Sutor Refusing To Remove Clamp
Thanks for that it's most helpful. Will look at the Judgement and will contact the Council tomorrow before we do anything else. Will post any updates.
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Susan Smith
- Posts: 3
- Joined: 12 Sep 2021 07:58
Re: Bristow and Sutor Refusing To Remove Clamp
Just a quick question, should we make a formal complaint about the Bailiff's, is there a governing body we should contact ?
Re: Bristow and Sutor Refusing To Remove Clamp
Don't. It will get nowhere.
Hit them where it hurts. In the pocket!
Hit them where it hurts. In the pocket!
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Susan Smith
- Posts: 3
- Joined: 12 Sep 2021 07:58
Re: Bristow and Sutor Refusing To Remove Clamp
Thanks for that. How long does it take from making the Application to get the injunction order to have the clamp removed? Due back at work on Wednesday morning
Re: Bristow and Sutor Refusing To Remove Clamp
Usually A few days in Central London, a bit longer for country-bumpkin local courts.
Local judges don't see a CPR 84.13 application very often and don't know how to deal with them.
Some local judges don't like making orders against bailiffs, which can delay things, but the creditor/council instructing the bailiff only ends up shelling out more damages and legal costs.
We recently had a judge dismiss a CPR 84.13 because he said it was on the wrong form (N244) and stated it should be a claim on a form N1 claim form in the small claims track. Someone got egg on his face.
Another judge became unstuck by dismissing a hire-purchase clamp injunction, and stated the words: Whether it’s owned or not is all trivial, bailiffs do this to force the keeper's hand and make them pay up. They know a keeper is not going to let go of a car, whether it is actually legally theirs or it's leased. The bailiff usually doesn’t actually expect to obtain full legal rights over the car.
The hirer appealed, added another £5,500 to his costs and the clamp was off without further ado.
For the most part, injunctions are uneventful and the clamp comes off, and the council settles the claim and recovers it from the errant bailiff company,
There will be a further hearing to claim your damages and costs once the date the car was released is known and your damages have been evaluated.
You don't need to attend, the solicitor represents you.
If you don't get your car back by Wednesday, you are allowed a hire car and the council it paying for it. Make use of all that free mileage! plus, you get £35 a day.
Local judges don't see a CPR 84.13 application very often and don't know how to deal with them.
Some local judges don't like making orders against bailiffs, which can delay things, but the creditor/council instructing the bailiff only ends up shelling out more damages and legal costs.
We recently had a judge dismiss a CPR 84.13 because he said it was on the wrong form (N244) and stated it should be a claim on a form N1 claim form in the small claims track. Someone got egg on his face.
Another judge became unstuck by dismissing a hire-purchase clamp injunction, and stated the words: Whether it’s owned or not is all trivial, bailiffs do this to force the keeper's hand and make them pay up. They know a keeper is not going to let go of a car, whether it is actually legally theirs or it's leased. The bailiff usually doesn’t actually expect to obtain full legal rights over the car.
The hirer appealed, added another £5,500 to his costs and the clamp was off without further ado.
For the most part, injunctions are uneventful and the clamp comes off, and the council settles the claim and recovers it from the errant bailiff company,
There will be a further hearing to claim your damages and costs once the date the car was released is known and your damages have been evaluated.
You don't need to attend, the solicitor represents you.
If you don't get your car back by Wednesday, you are allowed a hire car and the council it paying for it. Make use of all that free mileage! plus, you get £35 a day.
-
Susan Smith
- Posts: 3
- Joined: 12 Sep 2021 07:58
Re: Bristow and Sutor Refusing To Remove Clamp
OK thank you, so we need to instruct a solicitor to all this? thats going to be expensive 
Re: Bristow and Sutor Refusing To Remove Clamp
It's usually free. The council pays.
Re: Bristow and Sutor Refusing To Remove Clamp
Hi. I have had my car clamped on HP in my driveway and they won’t remove clamp until I pay £394. How do I go about this please help