Advice - Legal or Realistic?

I post this with some reluctance as I don't want to start an argument, but it would be good, in my opinion, to have a calm, rational discussion about this.

Over the past months on the site I've noticed an increasing tendency toward advising posters to pursue a formal, legal solution to their problem. In my opinion, many of these issues would best be resolved by an informal or less formal approach. In fact fairly often I think (again only my opinion) the legal route being advised is simply unrealistic and misleading, possibly incurring costs for the poster that could and should be avoided were they to jump straight in at the deep end.

While I appreciate fully the need for posters to be aware of their rights, my feeling is it is best to drip feed information into a thread rather than lay out all the potential legal implications, which are often unlikely to be pursued, and could potentially worry the poster unnecessarily.

PLEASE understand this is not a dig at any person or persons in particular, just a general trend I've noticed. I just wondered if anyone else had noticed this, and whether others had views that either concur or disagree with that of mine.

[bluebottle]

Re: Advice - Legal or Realistic?

I do know that people have had better results from engaging a legal professional when dealing with local authorities who allow their contracted enforcement agents to run amok. One case involved the illegal seizure of a third-party vehicle which JBW refused to return and the local authority involved kept singing their "Deal with the bailiff" song. Once a legal professional got involved, the vehicle was returned within 24 hours. The local authority is now in negotiations with the third-party's solicitor over a claim for trespass on land and against property, loss of use, hire car charges and fuel for a hire car as the third-party needed transport to get to work and public transport was not viable.

The Regulation 46 complaint route for dealing with CT enforcement irregularities is a measure of last resort when all other means of resolution have failed and is available to CT debtors under the Council Tax (Administration & Enforcement) Regulation 1992 (as amended). Personally, I feel there should be an independent tribunal who should deal with this sort of thing, not put the CT debtor to the expense of a magistrates court hearing.

In some cases, the advice or assistance of a legal professional is desirable or necessary due to an issue being of a complex legal nature. In such cases, this can be invaluable in achieving a resolution.

[labman]

Re: Advice - Legal or Realistic?

I totally agree wit that and think it's wise. I was thinking more along the lines of responses which suggest possible police involvement through breaking the Fraud Act, or a host of other Acts that I've seen mentioned by quite a few different posters.

I think it is possible the Acts have been breached, but equally think it's almost certain the police would not be interested in pursuing anything.

As it's you, I better reiterate that this is not directed at one person, it is a trend within the site. My feeling is the trend is not one for the better, but that's just me - many may disagree.

[wales01man]

Re: Advice - Legal or Realistic?

My belief is try to sort out the problems first before going legal but reading so many posts on here involving public bodies and bailiffs in the main that with the sums involved and the fact these people chasing a debt act in such a way that legal advice and lehgal action may be the best route at the start a free or inexpensive consultation may be the best thing to do.
As good a advice on this forum is and there are many on here with vast knowledge as we can read there are many conflicting views not a bad thing in itself but can be confusing advice from here always helps but a legal professional can clarify things much quicker.
I have no wish to put anyone off posting lively debate is good please carry on

[teaboy2]

Re: Advice - Legal or Realistic?

Yes the acts, like the fraud act, may have been breached Labman, and the police may say its a civil matter, but its like with judges it depends on the officer you get on the day. Yes its always worth sorting informally or via civil claim, but sometimes it can be so serious that it likely warrants police involvement.

I agree not everyone needs to be sent to seek professional legal advice, but sometimes its in their best interest given how serious or how complicated an issue is. We here never hear the full sorry on forum posts, theres also bits that we are not told. Yes for things like CCA, DCA's and etc is pretty basic stuff and not all the facts are need, but in other cases its best to say seek legal advice for their own good as well as to cover our own backs too.

[Guest]

Re: Advice - Legal or Realistic?

Yes going to law should always be the last resort in my opinion. I think the use of civil law in regards to credit is becoming less useful now, a few years ago before forums like this existed creditors would just say, pay up or we will litigate, no discussion. A few said, well we will see about that , and people started to use their own weapon against them.
Over the last few years with the increasing awareness of consumer issues and the unsavory activities of some in the credit industry, regulators have clipped the rogue creditors/DCA's wings somewhat.
I think the important issues now involve personal data and protection from suedo legal organisations like RLP and CMC's.

To be honest i am unsure of the value of quoting criminal legislation to posters on here, I am unaware of any of the large advisory services doing it. Personally I think it should be left to the police, words like fraud and theft can be unwise unless you are 100% sure of your ground in my opinion not to say that it isn't interesting of course.

D

[Bill-K]

Re: Advice - Legal or Realistic?

I agree with DavyB that we should exhaust all other avenues before resorting to litigation. That is what Pre-Action Protocol is all about, isn't it ? My own preference has always been to try and ensure that it is down on record that I have done all I can to resolve an issue informally. I prefer not to go in with all guns blazing, but to play the simpleton first of all. If I do this, the other party very often digs a hole for themselves - softly, softly, catchee monkey. I always say give them as much rope as they want.

Eventually, I may tell them I have been 'taking advice,' and start to quote some rules, regs & laws. But I do that with the intention of letting them know that I'm not going to fold easily. I think it is important to know the law, of course, and these forums have certainly brought that knowledge to Joe Public and given him the confidence to stand up for himself. We mustn't become over-confident with our recently-gained knowledge, and knowing how to use it effectively is another science altogether, I believe.

It's good to have a big stick we can wave, but in untrained hands it can be dangerous - "you could take somebody's eye out with that !" :boink:

[bluebottle]

Re: Advice - Legal or Realistic?

In civil cases, the claimant is expected to do everything possible to resolve a dispute before resorting to court action and the court will look for this when considering the case file. However, compulsory mediation is looming on the horizon and it will be a requirement to go to mediation before being allowed to proceed into court.

In criminal cases, there is a requirement that there must be a prospect of securing a conviction which, at present, stands at 51% or more. Where there is clear evidence that a criminal offence is or has been committed, it is best to explain to the defendant what they have done and point out the offence, where this is known and the evidence exists. This then puts the defendant on notice that their actions are illegal and gives them the opportunity to address their actions or continue to behave like a idiot and run the risk of a formal investigation by the law enforcement agencies and possible prosecution. It follows the adage, "Give someone enough rope and they will hang themselves."

[Guest]

Re: Advice - Legal or Realistic?

In criminal cases, there is a requirement that there must be a prospect of securing a conviction which, at present, stands at 51% or more. Where there is clear evidence that a criminal offence is or has been committed, it is best to explain to the defendant what they have done and point out the offence, where this is known and the evidence exists. This then puts the defendant on notice that their actions are illegal and gives them the opportunity to address their actions or continue to behave like a idiot and run the risk of a formal investigation by the law enforcement agencies and possible prosecution. It follows the adage, "Give someone enough rope and they will hang themselves."

It just feels odd. In a civil case the claimant can take proceedings off his own bat based on whatever piece of civil legislature he pleases, not so in a criminal one.
If i was burgled, i would not drop a line to the suspects telling them they had committed an offence under the theft act, I would just go to the police.

D

[Bill-K]

Re: Advice - Legal or Realistic?

LOL - yeah - when you put it that way, it does sound a bit 'pansy,' dunnit, Davy ? But I guess we should weigh up the circumstances and the gravity of the alleged offence, and choose from our options. In the end, though, it is the Police who would prosecute the burglar - you just have to decide if it's worth giving him a chance to return your plasma TV & Bose sound system, first !!!

[labman]

Re: Advice - Legal or Realistic?

However, compulsory mediation is looming on the horizon and it will be a requirement to go to mediation before being allowed to proceed into court.

Is that so? I know the general move has been towards ADR in civil proceedings, but I was not aware it was going to become compulsory. From my point of view, using real examples, if someone threatens to beat me up and it is clear they mean it, I want that person to at least be given a formal caution by the police. I wouldn't want them, and the police tried this, to just have a gentle word in the person's ear saying please don't do it again.

However, if someone posts up with some relatively minor issue, I feel it misleading to tell them they may have been the victim of various serious offences when actually this is over the top. Where the issue merits it, of course it should be mentioned, but if I may pinch Bill's terminology, if big guns are mentioned all the time, big guns rapidly become little guns and there is nothing left in the armoury.

The post stems from my feeling that the site is tending increasingly to suggest the use of the full blown bombing raid when a pistol would have been a better weapon. My feeling may be wrong! :beagle:

[Guest]

Re: Advice - Legal or Realistic?

LOL - yeah - when you put it that way, it does sound a bit 'pansy,' dunnit, Davy ? But I guess we should weigh up the circumstances and the gravity of the alleged offence, and choose from our options. In the end, though, it is the Police who would prosecute the burglar - you just have to decide if it's worth giving him a chance to return your plasma TV & Bose sound system, first !!!

I don't think its pansy Bill i just don't think that it is appropriate, bit like accusing the Italian waiter of fraud for doubling up on the tip on the bill.

I suppose technically it is, but you may look a bit silly taking it to the CPS.

D

[Bill-K]

Re: Advice - Legal or Realistic?

I think we concur on the principle, Davy - the illustrations and terminology are fun, though !!!

[labman]

Re: Advice - Legal or Realistic?

I think we concur on the principle, Davy - the illustrations and terminology are fun, though !!!

And absolutely spot on! lol :beagle:

[bluebottle]

Re: Advice - Legal or Realistic?

Is that so? I know the general move has been towards ADR in civil proceedings, but I was not aware it was going to become compulsory. From my point of view, using real examples, if someone threatens to beat me up and it is clear they mean it, I want that person to at least be given a formal caution by the police. I wouldn't want them, and the police tried this, to just have a gentle word in the person's ear saying please don't do it again.

However, if someone posts up with some relatively minor issue, I feel it misleading to tell them they may have been the victim of various serious offences when actually this is over the top. Where the issue merits it, of course it should be mentioned, but if I may pinch Bill's terminology, if big guns are mentioned all the time, big guns rapidly become little guns and there is nothing left in the armoury.

The post stems from my feeling that the site is tending increasingly to suggest the use of the full blown bombing raid when a pistol would have been a better weapon. My feeling may be wrong! :beagle:

Compulsory Mediation will be for civil cases and not criminal cases. The current system that exists for Criminal Justice will remain in place for the timebeing until Parliament comes up with something more workable, just and which addresses the rights of the victims of crime. It was the Brixton Riots and subsequent Scarman Report that brought in PACE and the CPS. However, successive governments have seen the CPS as a means to a way of reducing the bill to the taxpayer for Criminal Justice by denying individuals justice when, really and truly, the perpetrator of a crime should be put on trial before a magistrates court or a Crown Court.

In the context I described about pointing out the offence to a defendant, I was referring to those such as DCAs and certificated bailiff companies who choose to play silly buggers by flouting the law in a way that puts them in breach of the Criminal Law. If, in the circumstances Davyb describes, an offence is committed within your presence and hearing or you discover an offence has been committed, it is obvious you are going to call the police, especially if the offender is wielding a weapon of some description, is physically stronger than yourself, you are not trained in control and restraint techniques or it is a serious offence. That is human nature.

With harassment, especially the levels firms like CapQuest engage in, advising an OP as to the legal provisions available to deal with it, especially when all else has failed to abate the harassment, is a necessity. Harassment can cause psychological damage that can have far-reaching consequences, especially for the victim's physical health.

Yes, the circumstances of each individual case need to be assessed in order to give appropriate advice, but the effect the circumstances are having on that individual need to be taken into account, too. Of course an OP should be advised to try this and that first, but if what an OP's adversary is doing is serious enough to warrant it or is having an adverse effect on an OP's well-being, then, sometimes, it is necessary to make the OP aware of what legal provisions exist to put a stop to what could result in damage to their well-being or result in an injustice.