Another bailiff discussion thread.

[Amethyst]

Re: Another bailiff discussion thread.

I know, as I said before, in trying to work it out start at the beginning, that's where the legislation stems from so follow that through to gain further understanding. So take that, the discussions, consultations, impact assessments, hansard up to the drafting and you get to the current legislation and have an understanding of how it was reached and the intention behind some of the wording.

[Guest]

Re: Another bailiff discussion thread.

I don't think there is any dispute over pro-rata being implemented when the bailiff recovers money, either via payments from the debtor or sale of goods.

This is merely one method of recovering fees (as legislation states) it is not an exclusive method.

When the bailiff hasn't recovered any funds for the creditor, but the creditor has managed to obtain money independently (for example, by means of the debtor paying the creditor directly), then the bailiff may use other means to recover his fees.

[Guest]

Re: Another bailiff discussion thread.

You do not need to be an expert you just need to be able to understand what you read.

`

I'm sure even you can see the irony of that statement, given that it took 7 pages for you to comprehend that it is totally irrelevant when fees are chargeable.

If anyone wonders what that loud banging was yesterday afternoon, it wasn't the a thunder storm, it was a large penny dropping at Andys house.

[Guest]

Re: Another bailiff discussion thread.

Yes I think he is however he would be wrong, because the bailiff is entitled to the fees under section 50/ 62 of the legislation. The fees are part of the amount owed.

No I wasn't. In post #166, I clearly stated that the fees would not "magically disappear"

Before you start berating others for not reading & understanding legislation properly, you really ought to afford them the courtesy of reading & understanding their posts properly. They are actually very simple compared to legislation and everyone else seems capable of doing so. You would also find that there would be no need for page after page of posts that are only there to guide you through a very simple argument.

[Crazy council]

Re: Another bailiff discussion thread.

Interesting that amethist.... how the justification of the fee is calculated. For normal debt collecting. I would not consider that a issue, or unfair. But for ct, its horrendusly high. I hope it will lead to different fees charges forcsmaller debts. That would be more fair. Say charges increase per 500 due. Instead of such a high starting charge. Especialy because ct is not a debt you could ever choose.

[Guest]

Re: Another bailiff discussion thread.

I know, as I said before, in trying to work it out start at the beginning, that's where the legislation stems from so follow that through to gain further understanding. So take that, the discussions, consultations, impact assessments, hansard up to the drafting and you get to the current legislation and have an understanding of how it was reached and the intention behind some of the wording.

Looking through some of the earlier links that I had form when the TCE was being considered and came across this, although not directly apposite with the current discussion I thought interesting.

http://www.publications.parliament.u...onst/13/13.pdf
“Public bodies and private persons are both subject to the rule of law;
nothing could be more elementary. But the principles which govern their
relationships with the law are wholly different. For private persons, the
rule is that you may do anything you choose which the law does not
prohibit. It means that the freedoms of the private citizen are not
conditional upon some distinct and affirmative justification for which he
must burrow in the law books. Such a notion would be anathema to our
English legal traditions. But for public bodies the rule is opposite, and of
another character altogether. It is that any action to be taken must be
justified by positive law. A public body has no heritage of legal rights
which it enjoys for its own sake; at every turn, all of its dealings
constitute the fulfilment of duties which it owes to others; indeed, it
exists for no other purpose ... Under our law, this is true of every public
body. The rule is necessary in order to protect people from arbitrary
interference by those set in power over them.”

[Guest]

Re: Another bailiff discussion thread.

I already have in post #139. I'll quote the legislation again, TCE 2007 schedule 12, s50 (3):

The amount outstanding is the sum of these—

(a)the amount of the debt which remains unpaid (or an amount that the creditor agrees to accept in full satisfaction of the debt);

(b)any amounts recoverable out of proceeds in accordance with regulations under paragraph 62 (costs).


The debt and the fees are two separate amounts - not bundled together under the heading of 'debt'.

Have to comment on this as it is a typical case of reading something and then totally missing the point.. the section says.:
The amount outstanding is the sum of these—(my emphasis)

Then you say that these should be considered as separate entities, the above says the amount outstanding is the sum, the combined amount. ???

[doubleslap2]

Re: Another bailiff discussion thread.

Have to comment on this as it is a typical case of reading something and then totally missing the point.. the section says.:
The amount outstanding is the sum of these—(my emphasis)

Then you say that these should be considered as separate entities, the above says the amount outstanding is the sum, the combined amount. ???

Read the posts Andy. I was asked to show where it says the debt and the fees are separate entities. This shows that the 'fees' are not the 'debt'. The 'amount outstanding' is never referred to the 'debt', but is separated into its two components.

The debt is what the warrant was granted on, the fees are added by the bailiff. The amount due to the bailiif cannot be added to the warrant as it is not known what the fees will total.

[Johnboy007]

Re: Another bailiff discussion thread.

The Taking Control of Goods (Fees) Regulations 2014

Previous: Provision
Next: Provision

Recovery of fees for enforcement-related services from the debtor

4. (1) — The enforcement agent may recover from the debtor the fees indicated in the Schedule in accordance with this regulation and regulations 11, 12, 13, 16 and 17, by reference to the stage, or stages, of enforcement for which enforcement-related services have been supplied.

(2) The fees referred to in paragraph (1) may be recovered out of proceeds.

(3) The enforcement agent may recover under this regulation the whole fee provided in the Schedule for a stage where the amount outstanding is paid after the commencement, but before the completion, of that stage.

(4) For the purposes of this regulation, the relevant stage of enforcement is determined according to regulation 5 or 6 as appropriate.

(5) Where the enforcement agent is acting under an enforcement power conferred by a High Court writ—

(a)where the enforcement agent and the debtor enter into a controlled goods agreement which the debtor does not breach, only the first enforcement stage fee may be recovered from the debtor; and

(b)where—

(i)the enforcement agent and the debtor enter into a controlled goods agreement which the debtor breaches; or

(ii)the enforcement agent and the debtor do not enter into a controlled goods agreement,

both the first enforcement stage and second enforcement stage fees may be recovered from the debtor, and the first enforcement stage fee is recoverable where sub-paragraph (ii) applies notwithstanding that the first enforcement stage did not apply.

I am going to refer to this section with regards to fees.

The enforcement agent may recover under this regulation the whole fee provided in the Schedule for a stage where the amount outstanding is paid after the commencement, but before the completion, of that stage.


Now what happens if it isn't paid by the debtor?
I believe EAs should try to claim their fees from their client ( Council )

[Guest]

Re: Another bailiff discussion thread.

Read the posts Andy. I was asked to show where it says the debt and the fees are separate entities. This shows that the 'fees' are not the 'debt'. The 'amount outstanding' is never referred to the 'debt', but is separated into its two components.

The debt is what the warrant was granted on, the fees are added by the bailiff. The amount due to the bailiif cannot be added to the warrant as it is not known what the fees will total.

Makes no difference the section says that the proceeds go to pay the amount outstanding, the amount outstanding equals the sum of the amount due under the order and the fee. It does not say that these are separate funds, just that the proceeds pay one combined amount.

[doubleslap2]

Re: Another bailiff discussion thread.

Makes no difference...

The huffy comment of a lost argument. It makes the world of difference. The fees are not a 'debt' if they are added whilst enforcing. Theoriginal debt is the debt, nothing more. The fees are only 'due'.

Still no answer on the other point, of which Johnboy has now added to - what happens if you pay the creditor direct and the ceditor fails or refuses to pass on the bailiff's 'cut'?

[Guest]

Re: Another bailiff discussion thread.

The Taking Control of Goods (Fees) Regulations 2014

Previous: Provision
Next: Provision

Recovery of fees for enforcement-related services from the debtor

4. (1) — The enforcement agent may recover from the debtor the fees indicated in the Schedule in accordance with this regulation and regulations 11, 12, 13, 16 and 17, by reference to the stage, or stages, of enforcement for which enforcement-related services have been supplied.

(2) The fees referred to in paragraph (1) may be recovered out of proceeds.

(3) The enforcement agent may recover under this regulation the whole fee provided in the Schedule for a stage where the amount outstanding is paid after the commencement, but before the completion, of that stage.

(4) For the purposes of this regulation, the relevant stage of enforcement is determined according to regulation 5 or 6 as appropriate.

(5) Where the enforcement agent is acting under an enforcement power conferred by a High Court writ—

(a)where the enforcement agent and the debtor enter into a controlled goods agreement which the debtor does not breach, only the first enforcement stage fee may be recovered from the debtor; and

(b)where—

(i)the enforcement agent and the debtor enter into a controlled goods agreement which the debtor breaches; or

(ii)the enforcement agent and the debtor do not enter into a controlled goods agreement,

both the first enforcement stage and second enforcement stage fees may be recovered from the debtor, and the first enforcement stage fee is recoverable where sub-paragraph (ii) applies notwithstanding that the first enforcement stage did not apply.

I am going to refer to this section with regards to fees.

The enforcement agent may recover under this regulation the whole fee provided in the Schedule for a stage where the amount outstanding is paid after the commencement, but before the completion, of that stage.


Now what happens if it isn't paid by the debtor?
I believe EAs should try to claim their fees from their client ( Council )

Not sure of your point here, are you concerned that the bailiff is not going to get his fee ? The fee and the sum due under the order are one of the same, once it has been passed for enforcement, it makes no difference to whom the sum is paid it will be apportioned among the creditor and the baiif as per their individual entitlement, or it will be refused and sent back with a note saying please pay the bailiff, or it will be sent in one piece to the bailiff for them to take their fee out and hold until the enforcement action is completed then sent back, the details have yet to be worked out but whatever way around it really makes no difference for the debtor.

[Guest]

Re: Another bailiff discussion thread.

The huffy comment of a lost argument. It makes the world of difference. The fees are not a 'debt' if they are added whilst enforcing. Theoriginal debt is the debt, nothing more. The fees are only 'due'.

Still no answer on the other point, of which Johnboy has now added to - what happens if you pay the creditor direct and the ceditor fails or refuses to pass on the bailiff's 'cut'?

Sorry why are he fees not a debt, they are authorized by legislation and are a legitimate charge issued by the baiiff , so why are they not considered to be a debt.
In any case , whatever you like to call the fees the are an integral part of the amount outstanding as defined by the registrations and the proceeds , again as defined by the regulations are to pay this amount as a whole.

[doubleslap2]

Re: Another bailiff discussion thread.

*sigh*

The fees are not 'the debt' - TCE sch12 s50 (3) clearly explains that. The fees are separate from 'the debt'.

The debt is the purpose of the warrant - the fees (which as you said earlier in the thread) may or may not be charged.

[Amethyst]

Re: Another bailiff discussion thread.

“amount outstanding” has the meaning given by paragraph 50(3) of Schedule 12;

“proceeds” has the meaning given by paragraph 50(2) of Schedule 12;

“sum to be recovered” means the amount of the debt which remains unpaid, or an amount that the creditor agrees to accept in full satisfaction of the debt.

(4)“Debt” means the sum recoverable.



CPR

Disputes about the amount of fees or disbursements recoverable under the Fees Regulations

84.16
(1) This rule applies where—

(a)there is a dispute about the amount of fees or disbursements, other than exceptional disbursements, recoverable under the Fees Regulations; and

(b)a party wishes the court to assess the amounts recoverable under regulation 16 of the Fees Regulations.

(2) A party may make an application to the court to assess the amounts.

(3) The application must be accompanied by—

(a) evidence of the amount of fees or disbursements in dispute;

(b) evidence that the fees or disbursements in dispute were not applicable, as the debt had been settled before the stage where it would have been necessary to incur those fees or expenses;

(c) evidence that, because the enforcement agent was instructed to use the TCG procedure in relation to the same debtor but in respect of more than one enforcement power where the enforcement powers could reasonably be exercised at the same time, regulation 11 of the Fees Regulations should have been applied;

(d) evidence that the fee due and any disbursements for the enforcement stage, first enforcement stage, or first and second enforcement stage, as appropriate, are not recoverable under regulation 12 of the Fees Regulations; or

(e) where the dispute concerns the amount of the percentage fee, calculated in accordance with regulation 7 of the Fees Regulations, evidence of the amount of the sum to be recovered.



Disputes about the amount of fees and disbursements recoverable under regulations
16. Upon application in accordance with rules of court, any dispute regarding the amount recoverable under these Regulations is to be determined by the court.