Taking a council (or a creditor) to court for illegal enforcement action (under £10.000)

 

I offer a low cost claims drafting service.

 

Familiarise yourself with this official guide.

The authority is always responsible for enforcement agents (bailiffs) acting on their behalf. Paragraph 7 of the Taking Control of Goods: National Standards 2014.

If the debt is a high Court writ, the creditor is liable if they knew the bailiff was taking an unlawful enforcement step.

 

This template is used in conjunction with this page

 

 

Bringing a claim in four steps.

 

1. Send the Council (or creditor) a "Letter Before Action". Saying why the money is owed and how much. Give the means o pay into your account and set a deadline.

2. Wait about 4 calendar days, then file the claim at your local county court using a Form N1 with brief simplified claim particulars using the example template above. If you prefer, you can file your claim online at moneyclaimonline.co.uk

3. When the court asks, complete the given form N149 Allocation Questionnaire and allocate your claim to the "small claims track". Look over your opponents defence statement and start work prepare your witness statement, affidavits, gather your evidence.

- Meanwhile, ignore all nonsense and threat letters from the bailiffs or their solicitor. These usually include long essays chronicling the history of the debt. Do not go into "mediation". They will mess you about.

 

4. Attend the hearing and give a copy of your witness statements, affidavits and evidence to the court usher. If you made one, give a copy of the Skeleton Arguments (I can draft this for you) ask for them to be placed before the judge. Make a spare copy for the defendant. At your hearing, NEVER concede to a Tomlin Order.

- et voila! job done!

 

 

If your claim is more than £5000 then you can recover solicitors fees in bringing your claim, and it costs you absolutely nothing. Contact me and I can say whether your claim is a winnable one, and make a referral to a specialist solicitor experienced in bailiff redress.

If your claim is under £5000, then you cannot recover solicitors fees, but you can claim a prescribed hourly rate for administrating your claim. You can use that allowance to instruct me to prepare your claim documents, witness statements, legal arguments and assemble your supporting evidence. (fixed fee £150).

This is to assist the court to determine the outcome of your claim and you can reclaim this sum as part of your claim.

 

 

If you are confident to go DIY in the small claims court, dive right in!

Tactics commonly employed by bailiffs and their solicitors to scupper your claim

Experience has taught us that following a private company's or its trade association's complaints procedure accomplishes nothing. It absorbs energy better used elsewhere. There is no point getting into a protracted volley of correspondence. Bailiff companies are obfuscous. You may as well start proceedings at the earliest point and let legal machinery do its job.

Even when the bailiff company is not a party to the proceedings, they may write to you. This is usually to frustrate the proceedings, or simply to cause annoyance. Some bailiff companies write long essays chronicling a the history of the debt. This can be given in evidence of culpable refusal to comply with enforcement regulations.

They may try and cajole you to close your claim. These may include saying your claim;

i) is an "abuse of process"

ii) "you will be liable for our costs"

iii) Your claim "does not plead a proper cause of action"

iv) "The Claimant lacks locus standi"

 

You cannot be made to pay the fees of another party unless your conduct is unreasonable. Just place their correspondence on file unless it encloses full payment, then close your claim once the funds are cleared to your account.

The most common complaint about solicitors representing bailiff companies is they try to make a gain by making false interpretations of Part 27.14 of the Civil Procedure Rules. It is fraud by abuse of position if a solicitor endangers a litigant in person by making a false statement about court rules to obtain money not sanctioned by the court. This type of behaviour is also not compatible with principles 1, 6 & 7 of the Solicitors Regulation Authority Code of Conduct 2011.

 

Before starting your claim:

If your creditor (whom you are claiming damages from) is an authority, the court, in particular, lower ranking judges have a perceived obligation to come down on the side of the creditor

They may even go to extraordinary length to rebuke your grounds. You must plan, and be prepared, to escalate your claim to an appeal before starting your claim.

You must support the grounds of your claim;

i) with evidence, and

ii) by making a sworn statement

iii) Have witnesses make statements and have them attend court to give evidence.

 

 

Above all, your claim must be irrefutable.

Make a detailed statement on plain A4, in your own words, giving a first-person account saying what happened, dates, names, everything starting from the beginning. Keep it to one paragraph per event. Write your name in CAPS at the bottom. You can have this sworn in by a solicitor before giving it to the court.

DO NOT rely on un-sworn statements. The court will NOT treat them as fact.

Run this compliance checklist to determine if there are further grounds to add to your claim. Your claim must be supported by legislation or parliamentary intention. A court cannot rebuke a point of law. Consider having a telephone consultation to establish the points of law you are bringing your claim.

If you are claiming loss of income, damages or disbursements, you need EVIDENCE!

Find a friendly accountant to make a loss adjustment report. Just giving an estimate of your losses might not be enough to persuade a court to order your opponent to pay them. Use this policy to your advantage. Collect lots of receipts, taxi chits, invoices, bills everything right down to postage stamps and 0845 telephone calls. That way, it leaves nothing to discretion of the court.

You can also claim an hourly rate for your time and research later, currently at £19 an hour.

You can claim damage to your business reputation. Any accountant (acting as loss-adjuster) can validate how much damage and losses you have incurred, and provided he can make a statement. Its all recoverable including your accountants fee.

Make a list of all your losses, expenses, disbursements, payments and goods seized. Charge them by the REPLACEMENT COST of the goods on a new for old basis. That includes replacing a car on a like-for-like basis at showroom or forecourt price. Add the replacement cost of its contents, fuel, tax and unused insurance.

There is no such thing as "betterment" because this only applies to insurance policies. With unlawfully interfered vehicles, you recover the replacement cost of the vehicle on a like for like basis. There is an allowance for improvement. Include all your consequential expenses described here:

 

 

"marston holdings "

Get the defendants name right. If the bailiff company involved is stylised "marston holdings". Its legal name is MARSTON GROUP LIMITED.

 

 

PO Box addresses

If a bailiff company is hiding behind a PO Box address, then use it. It is GUARANTEED DELIVERY. Provided you have a proof of posting, they cannot say to the court they did not receive it. If you need to take enforcement against a PO Box company, you can still use a Part 72 3rd Party Debt Order with their bank who makes over the money owed.

 

 

Proving your losses

Here is that magic word again, EVIDENCE!

If you are recovering damages for unlawfully seized motor vehicles, damages can include:

Rental cars

Taxis

Use of public transport

Anything else you paid or lost as a result of the loss of use of your car

Loss of Road Fund License, including DVLA surrender and renewal charges

Unused motor insurance on the vehicle, including cancellation and amendment fees

£25-£250 for each day, (which can be professionally loss-adjusted), you were denied the use of your vehicle

Getting it valeted/serviced/repaired/MOTd to return it to road use

Vehicle depreciation and the cost of estimating the depreciation amount professionally

Legal consultation fees.

 

If you cannot documentarily prove a disbursement, then make a sworn affidavit. Otherwise you will not be awarded. Even the £5 fee to swear an affidavit is recoverable.

Note: Everything claimed, except court fees and interest must not exceed £10,000, otherwise you could be ordered to pay your opponents solicitors costs if your claim is unsuccessful.

If your claim is more than £10,000 then consider a telephone consultation and see if your claim can be handled professionally under a no-win no-fee agreement..

 

 

Getting your vehicle back

If you want your original vehicle back, the judge has a power at the hearing to order the defendant to deliver up your vehicle to you, but this will not happen until your hearing, so this is not imminent. Keep totting up your daily expenses in connection with the deprivation of the use of the vehicle. Or see how to make an interpleader claim or deploy Pay & Reclaim.

If your vehicle is sold during the course of the proceedings, then you recover the replacement cost, including interest and fees on any finance taken out to buy it. There is an allowance for improvements to your vehicle, so you can optimise your replacement vehicle and pass the cost to the liable creditor in your claim. This route is preferred for older run-down vehicles. If someone else owns the vehicle, they must make a separate claim against the same creditor, otherwise you add the replacement cost to your existing claim.

Check here to see if your vehicle is up for sale on the internet. Check to see it was recently sold.

When your original vehicle is returned, NEVER EVER sign a document, especially a disclaimer waivering your right to claim damages. This document is usually disguised as a"RECEIPT". If you are forced, then "sign" the document with the word - Declined! - instead of your usual signature and quietly hand the form back to the bailiff.

Your vehicle may well have been damaged after it has been held by a bailiff company.

Before driving the vehicle, make a detailed list and photograph close-up using your mobile, all damage to the vehicle that was not there before it was removed. Make a sworn affidavit listing all the particulars of damage. Get two estimates for the repairs, and recover them from the creditor in the small claims court whom the enforcement agent was acting for. The law is paragraph 35 of Schedule 12 of the Tribunals Courts and Enforcement Act 2007 which creates a liability for the care of controlled goods.

 

Take a copy of this checklist with you when you go to the bailiffs compound to collect your vehicle.

 

 

 

Cost of bringing the claim

There are court fees to pay unless you qualify for fee remission. Complete a Form EX160a, and read the guidance notes and Forms EX160b and c and make sure your income fits inside the "stated amount" on page 9, otherwise you will not get any fee remission.

You cannot be made to pay the solicitors fees for the defendant in a small claims proceeding. The defendant will have to pay their own solicitors fees regardless of the outcome of your claim.

 

 

Starting your claim

Prepare a draft witness statement and letter before action from the templates. You might need professional help with this because good presentation is everything. Say clearly what went wrong, and tell them how much the defendants should pay you and set a deadline. Always copy in the bailiff company.

Prepare "a Schedule of Damages". An itemised list of losses and damages relating to your claim. Include loss of income, and time spent on preparing your claim. You don't need to file this at court yet, but use it to calculate the total value of your claim. You can add further damages later for continuing expenses while you are deprived of your goods of vehicle.

You may get interim excuse letters, but on your deadline date, file the claim at court on the Form N1 using simplified claim particulars.

The court will send you an acknowledgment of service within 14 days and a further 14 days you will receive a copy of the councils defence statements

Use their defence response statements to strengthen your claim and answer any issues they have raised against your dispute. Re-draft your witness statement. Do bear in mind most defence statements you receive will be a chronology of the history of the debt being enforced, and rarely answer the dispute itself. That is intentional.

You may receive correspondence from the bailiff company even if they are not a party to the claim. DO NOT REPLY TO IT. Their policy is to obfuscate the proceedings. They know the creditor will be coming after them if you win your claim.

If the bailiff or council "places you on strict proof" of a particular allegation you have made, then you can prove the allegation by making a sworn statement of truth and the court will treat is as a fact.

If the council decide to 'lawyer-up', they will send you a "statement of costs". See an example. You can ignore this because you are not ordered to pay their costs in the small claims court. This is only if you have acted "unreasonably". The council will have to settle their own solicitors fees themselves regardless the outcome of the proceedings.

Bailiffs solicitors may try and bully you into withdrawing your claim. They say things like "it's the wrong procedure" and may even quote irrelevant legislation to confuse you. DO NOT respond to these letters, just place them in the corresponding file and continue with your claim. You have a fundamental legal right to seek redress in the small claims court under the Civil Procedure Rules.

NEVER accept Caulderbank offers from a bailiff company. They are not to be trusted! This procedure does not apply to small claims proceedings. Ignore threats about their "costs" or "legal fees" it is virtually unknown for claimants to be ordered pay a defendants costs if the claim fails! If the bailiff company is represented by a £800-an-hour barrister, they will have to pay for that themselves.

When the court directs, complete a form N149 Allocation Questionnaire form which the court will send you. If requested, file your witness statement and evidence, and send copies to the defendant. The claim is allocated to the Small Claims Track.

If you get any "without prejudice" correspondence, ignore it - unless they are offering to pay you in full sum you are claiming - including your court fee - and ONLY close the claim with the court when you are IN POSSESSION OF CLEARED FUNDS. If the bailiff or his solicitor is sending you nuisance mail, just place it on the correspondence bundle.

It is the practice of bailiffs and councils not to turn up at hearings, then say they "forgot". They then apply for a set aside on your judgment. To prevent this, send a simple letter by post and by email and telephone the bailiffs and council. remind them of the:

i) Trial date

ii) Court location

iii). Claim number

 

This removes any doubt a defendant simply forgot about attending your claim hearing. Any clandestine attempt to get your judgment set aside will be struck out if you can show the court your reminder letter.

As a litigant in person, you can ask the court for £19 per hour you have spent on preparing your case. Bump up the hours according to the level of resistance put up by your opponent-but please don't go mad with the number of hours worked.

 

 

Was the bailiff wearing a bodycam?

Many bailiffs wear bodycams, and you are entitled to see the footage. You can also use this to your advantage because many bailiff companies frustrate you seeing or obtaining it because they know it will be used in evidence against them in a claim.

ALWAYS ask the bailiff company for the bodycam footage, and give their "data protection act" excuse letter in evidence. If a defendant bailiff company conceals evidence, or obfuscates you obtaining it, which would otherwise prove your claim or assist the court to determine the outcome of your claim, the judge can strike out the bailiff company's defence under Civil Procedure Rule 16a(1).

Alternatively the court may make an order under CPR 31.12 to force the bailiff company to disclose the bodycam footage. However, that will result in the hearing being adjourned and the bailiff being given an "unless order" which strikes out their defence unless the bailiff company produces the footage.

 

 

 

Attend the hearing

Print out and follow this guidance for attending court.

DO NOT ALLOW THE OPPONENTS SOLICITOR TO START CONVERSATION WITH YOU OUTSIDE COURT and DO NOT ACCEPT DOCUMENT BUNDLES THEY TRY TO THRUST INTO YOUR HAND.

During the hearing and, if your claim involves a bailiff breaching a regulation or statutory provision, ask the judge to make a "finding of fact" against the bailiff that he breaches a specified regulation or statutory provision. You can use this to make an EAC2 complaint against the bailiff. The court hearing the complaint cannot go behind a finding of fact.

 

 

What if you lose your claim?

You can APPEAL the decision to a circuit judge on a Form N164 saying why you want to appeal within 21 days

You cannot add new evidence previously undisclosed. This is why it is do important to have your claim professionally prepared at the outset.

Contact me if you would like a telephone consultation and referral to a barrister represent you in your appeal. You can recover barristers fees in an appeal regardless which track your claim was made.

You cannot appeal or make a complaint about a judge simply because you disagree with his decision. Rules of court provides the judge the right to make decisions.

If the judge refuses permission to appeal at the hearing, you can make an application to the Court of Appeal, which sits in London at the Royal Courts of Justice (nearest tube, Temple), under Civil Procedure Rule 52.3 sub-rule 3. See court Form 202 on how to appeal from the HM Court service form finder.