Court fine and bailiff fees discussion

[Amethyst]

Re: Court fine and bailiff fees discussion

Rule 52.8 of the Criminal Procedure Rules which is headed "Execution of magistrates' court distress warrant" provides, so far as material:

"(2) The warrant shall authorise the person charged with the execution of it to take as well any money as any goods of the person against whom the distress is levied; and any money so taken shall be treated as if it were the proceeds of the sale of goods taken under the warrant.

(3) The warrant shall require the person charged with the execution to pay the sum to be levied to the court officer for the court that issued the warrant. …

(12) The person charged with the execution of any such warrant as aforesaid shall cause the distress to be sold, and may deduct out of the amount realised by the sale all costs and charges incurred in effecting the sale; and he shall return to the owner the balance, if any, after retaining the amount of the sum for which the warrant was issued."


Paragraph 6.26 expressly provides that "the contractor shall apply monies received from the defaulters in relation to any given warrant to the court penalty first, with its own fees to be paid afterwards." To that extent the interests of the contractor are subordinated to those of the Department.



In reaching this conclusion I have born in mind the following considerations. First, there can be no doubt that in so far as the undertaking of risk is concerned, the risks transferred here are all those involved in running and managing the bailiff service. The MoJ is released even from the costs incurred in unsuccessfully failing to execute a warrant. Second, there is no direct payment by the MoJ for the performance of the service. The fact that this is an unwilling payment by third parties because the CPR 58 empowers the bailiff to distrain for the cost of enforcement does not alter that fact. Third, whilst it is true that the MoJ benefits from the performance of the service in a different and additional way to that found in a normal concession, it does not alter the fact that a service is also provided to third parties. Fourth, although the beneficiaries are not willing recipients of the service, that is equally the case in other circumstances where a concession has been found to exist e.g. those who have to take advantage of rescue services in Stadler. It ought not to preclude a concession arising.

[Guest]

Re: Court fine and bailiff fees discussion

I think the problem is that historically magistrates courts have always had the power to sanction the charging of fees to its officers. If this is to be challenged as not being legally correct, then the matter must be taken up with the court itself, the court will always support the bailiff in charging fees that it has authorized.

[bluebottle]

Re: Court fine and bailiff fees discussion

Rule 52.8 of the Criminal Procedure Rules which is headed "Execution of magistrates' court distress warrant" provides, so far as material:

"(2) The warrant shall authorise the person charged with the execution of it to take as well any money as any goods of the person against whom the distress is levied; and any money so taken shall be treated as if it were the proceeds of the sale of goods taken under the warrant.

(3) The warrant shall require the person charged with the execution to pay the sum to be levied to the court officer for the court that issued the warrant. …

(12) The person charged with the execution of any such warrant as aforesaid shall cause the distress to be sold, and may deduct out of the amount realised by the sale all costs and charges incurred in effecting the sale; and he shall return to the owner the balance, if any, after retaining the amount of the sum for which the warrant was issued."


Paragraph 6.26 expressly provides that "the contractor shall apply monies received from the defaulters in relation to any given warrant to the court penalty first, with its own fees to be paid afterwards." To that extent the interests of the contractor are subordinated to those of the Department.



In reaching this conclusion I have born in mind the following considerations. First, there can be no doubt that in so far as the undertaking of risk is concerned, the risks transferred here are all those involved in running and managing the bailiff service. The MoJ is released even from the costs incurred in unsuccessfully failing to execute a warrant. Second, there is no direct payment by the MoJ for the performance of the service. The fact that this is an unwilling payment by third parties because the CPR 58 empowers the bailiff to distrain for the cost of enforcement does not alter that fact. Third, whilst it is true that the MoJ benefits from the performance of the service in a different and additional way to that found in a normal concession, it does not alter the fact that a service is also provided to third parties. Fourth, although the beneficiaries are not willing recipients of the service, that is equally the case in other circumstances where a concession has been found to exist e.g. those who have to take advantage of rescue services in Stadler. It ought not to preclude a concession arising.

I was on the phone with a senior official from HMCTS for 90 minutes this afternoon and what you have highlighted came up during the conversation. Rule 52.8 CPR 2011 allows for the charging of fees by Authorised Enforcement Agents (AEA), but the level of those fees is a contractual matter between HMCTS and the bailiff companies involved, i.e. Collectica, Excel, Marston and Swift.

[labman]

Re: Court fine and bailiff fees discussion

A couple of Distress Warrants for Mag Ct fines. Both include costs.

I've intentionally NOT muddued the waters by looking at unlawful or potentially unlawful DW's, which are also plentiful.

[labman]

Re: Court fine and bailiff fees discussion

Following the introduction of the Courts Act 2003 the responsibility for the 42 existing Magistrates' Court Committees and the Court Service passed to Her Majesty's Courts Service. This took effect on 1st April 2005.

The Department for Constitutional Affairs (DCA) decided that for the future, enforcement services would be provided under contracts to be entered into, following a tender process, in respect of each of HMCS's seven regions.

The Contracts were able to be made pursuant to Section 2(4) of the Courts Act 2003 which enabled the Lord Chancellor to:

"...enter into such contracts with other persons for the provision, by them or their subcontractors, or officers, staff or services as appears to him appropriate for the purpose of discharging his general duty in relation to the courts"

With each of the 42 Magistrates Courts Committees previously agreeing different fees with their Approved Enforcement Agents, under the new tendering process, the Department for Constitutional Affairs wanted to ensure that all companies would charge the same fees to the debtor.

Following the bidding process, in November 2006 the DCA awarded contracts to enforce warrants (including distress warrants) on behalf of the Magistrates Courts to three Approved Enforcement Agents. These companies were: Drakes, Philips Collection Services and Swift Credit Services

In total, six contracts were awarded covering seven different regions and it was agreed that each company would “cap”the fees charged to the debtor at £200. This charge covered the administration stage and attendance to the debtor’s property. In the rare event that goods were actually removed, additional fees were permitted.

After the expiry on the initial contracts a further tendering process was undertaken by the Ministry of Justice on behalf of HMCS and this led to new contracts being awarded to four Approved Enforcement Agents. These were: Marston Group Ltd, Collectica Ltd, Excel Enforcement Ltd and Swift Credit Services Ltd. These new contracts took effect on 1st December 2009

Under the new contracts (which expire at the end of 2013) an increased fee scale was agreed with the Ministry of Justice which consisted of a maximum fee of £75 for the administration process and a maximum attendance fee of £200.

All four contracts were extended by 2 years and at this stage each company were permitted to increase the fee from £75 to £85 for the administration stage and from £200 to £215 for the "one off" attendance fee.

__________________________________________________ __________________________________________________ _______


IT is important to emphasise that the Contracts between the Ministry of Justice and the four Approved Enforcement Agents outline the procedures that must be undertaken by each company when enforcing court warrants on behalf of HMCTS.

With regards to the fees that each company may charge to debtors, the actual warrant itself permits fees to be charged by anyone executing a distress warrant ( as outlined in the above post) and it is merely a CONDITION of the contracts that each of the four companies will not EXCEED the fees agreed with the Ministry of Justice.

__________________________________________________ __________________________________________________ ________


ALL FOUR CONTRACTS have been extended for a period of one year, meaning they will now end in October 2014. Far from the enforcement officers terminating contracts, the contracts have been extended. In my opinion, this should be reflected in anything told to LB members.

[Milo]

Re: Court fine and bailiff fees discussion

I asked Phil Evans about this some time ago, this was his reply;

Hi Peter,

You are at the heart of a very interesting debate about the legal basis of the fees that MoJ authorise its contracted bailiffs to charge. There is a clear legal basis for fees being added to the debt but for all other types of bailiff action those fees are set by Parliament. So far as I am aware, whenever MoJ has been pressed on this issue, it dodges it. But whatever the merits of the debate, if anyone refuses to pay the fees that MoJ has authorised, they would not get any legal redress until the issue was won in the High Court, at least, and so my personal view is that they should be paid – unless someone wants to finance legal action.

Best wishes,

Philip

Andy,

I know Philip very well indeed and it may be of interest if I explain a little more. As you may know, he was Chair of the Enforcement Law Reform Group (ELRG)from 2002 until 2007. Lord Lucas took over as Chair in 2008. Until his retirement he had worked for many years at DCA (Department for Constitutional Affairs). Apart from John Kruse, I do not believe that there is anyone with such extensive knowledge of bailiff matters.

I was invited by Philip in 2006 to be a personal member of ELRG (and indeed attended their meeting at the House of Lords last Monday to discuss the progress of the TCE Act regarding bailiffs).

"Happy Contrails" claimed on endless occasions on the Consumer Action Group forum that he had received "confidential information" (that he has never ever exhibited) when he was working as a "Magistrate" which “apparently" claimed that there was no legal basis for bailiffs to be allowed to charge fees when enforcing unpaid court fines.

His posts on his "supposed theory" started on the forum around early 2009 and he very quickly started posting on the forum that bailiffs and the courts were committing Fraud. This is a very serious allegation and one that any forum would need to be concerned about.

Due to the simply constant such "allegations" it became very worrying indeed and sadly, it was a frequent occurrence for him to "attack me" personally on the site every single time that I posted an answer to a query stating the amount of the fees that had been agreed between HMCS and the bailiff companies. A common feature was his claim that I had started a "Flame War”. Interestingly, at that time I had not known the meaning oft his!!

Because of the "public interest" in the subject I contacted Philip to discuss this matter and we were delighted to find that shortly afterwards, Lord Lucas raised a Parliamentary Question in the House of Lords on this very matter. This was on 2nd April 2009. His question is as follows:


Lord Lucas: to ask her Majesty's Government, in respect of the wording of rule 52.8 (13) of the Criminal Procedure Rules 2005 (Si 2005/384), what legislation sets out and authorises a person to charge the "proper costs and charges of the execution of the warrant"

The response to Lord Lucas’s question came from Lord Bach and is as follows:

Lord Bach: The relevant primary legislation is Part III of the Magistrates Court Act 1980, the necessary implication of which is that proper costs associated with the execution of the warrant are chargeable. There is also common law authority that such costs may be added (Cook V Plaskett (1882) 47 JP 265)

Following this response, in late 2009 I obtained a copy of Barristers opinion which sadly made it clear that under "common law" the government could indeed allow costs to be charged to debtors by bailiffs when enforcing a Distress Warrant for unpaid court fines.

After receiving confirmation of Lord Bach's response, "HappyContrails" (as he was at that time.....although he now calls himself JasonDWB) continued to "claim" that there is no legal basis for bailiffs to charge such fees.

He confirms himself that he was thrown of CAG. He then joined this particular forum (Legal Beagles) and once again, made the identical "claims" that he had made on Consumer Action Group being that fees cannot be charged and; in order to "support" his own "theory" he started this particular thread ( that you are now reading) and by way of supporting "evidence" he copied "selected" extracts from a Freedom of Information requestt hat he had made to the Ministry of Justice.

Once again, given the huge public interest in this subject, on 17th February 2012 I made a few posts on here to correct "Happy Contrails" and to question him as to why he had felt it necessary to withhold from the public vital extracts from his FOI response !! He refused to answer and as you will see, on the same day he merely thanked me and stated that: "I await the lawyers letters". 18 months later....nothing had materalised from him.

He confirmed in the "Flame Pit" of his own site over this weekend that he had also been "thrown off" Legal Beagles.

He joined another forum last year (and I will not be putting the name on here) and, once again, on that particular forum he continues with his claim that fees cannot be charged and now he "encourages" debtors to complete something called an online "wizard" and the debtors case can then bereferred to their nominated "no win, no fee" claims management company.

He confirmed on his forum over the weekend that for such referrals he (as the "introducer") receives a fee of £5kwhich is:

"Charged as a disbursement and for time in preparing the case andpresenting it to court".

He is able to carry out this role given that he is a "Draughtsman" who "professionally prepares court documents in cases involving non-compliant civil enforcement".

It is noteworthy that since 2009 he has not provided details of any successful claims where a refund has been provided and neither has he provided any evidence whatsoever from any government agency stating that fees cannot be charged.

I have personally provided a great deal of background information regarding the subject of fees that are charged when enforcing an unpaid court fine. Both this site and CAG have the information as "Stickys" and anyone viewing the posts will know that I have provided a great deal of information together with details as to the relevant evidential source.

I do not believe that there is anything further that I can add on this subject suffice to say.....that it should be for the public to decide for themselves who to believe.


Thank you.

[CleverClogs]

Re: Court fine and bailiff fees discussion

I asked Phil Evans about this some time ago, this was his reply;

Hi Peter,

Did you change your name when you went from Bard to worse?

[Milo]

Re: Court fine and bailiff fees discussion

A few moments ago I received an email to ask me whether there is any truth in the "claim" from the other website that:

"One of Britain’s most senior judges Lord Justice Elias has confirmed there is no contractual obligation on defaulters to pay fees of the enforcement company"


It is "claimed" that Lord Lucas Elias made this statement in paragraph 38 of his Court of Appeal Judgment in the matter of: JBW Ltd v Ministry of Justice 2012.

The public should not be deceived in this way !!


Lord Justice Elias DID NOT say the above.

The truth of the matter is that the comment is merely the "submission" from Mr Peter Knox presenting JBW Group !!!

As anyone reading this judgment will know....JBW Group lost the case !!!

http://www.bailii.org/ew/cases/EWCA/Civ/2012/8.html

[bluebottle]

Re: Court fine and bailiff fees discussion

Happy Contrails should not be calling himself a Draughtsman. Draughtsmen, in the legal sense, are concerned with legal costs and have rights of audience in courts in cases of legal costs hearings. They do not draw up legal documents in preparation for court hearings, except legal costs hearings. Happy Contrails needs to be extremely careful how he describes himself.

[labman]

Re: Court fine and bailiff fees discussion

I was banned for arguing this point on the forum. Paragraph 38 of the judgment states, "There is no contractual relationship between the contractor and the defaulter." That is true, and nobody ever said there was such a contractual relationship. The contract is between different parties, but it is not under the contract the fees are payable, it is under the warrant.

What has failed to be mentioned from the same judgment is paragraph 12 which states:

1. The vast majority of the work under the contracts consists of the enforcement of warrants of distress issued by the magistrates for the non-payment of fines. The bailiff may levy financial distress, which involves securing payment without confiscation of goods; or he may levy confiscation distress, which involved confiscating and selling goods. For that work the contractor had to identify in the tender the fee he proposed to charge to execute the warrant and it is a term of the contract that he will not exceed that sum. In practice the costs of recovery are born by the defaulters because the bailiff who executes a warrant of distress is entitled under the terms of the warrant to take sufficient to cover not only the unpaid fine but also the costs of recovery.

In this case the sum is £300 comprising £85 Admin and £215 Attendance Fee. The bit in red seems to state they have the right to cover not only the unpaid fine, but also the costs of recovery.

[CleverClogs]

Re: Court fine and bailiff fees discussion

Happy Contrails should not be calling himself a Draughtsman.

Perhaps he just means that he doesn't play chess?

[bluebottle]

Re: Court fine and bailiff fees discussion

My suspicion, Labman, is that MoJ needed to ensure safeguards were included to limit or prevent abuse. The question is, "Have any such safeguards been effective?"

I have no doubt that there will, indeed, continue to be arguments about whether the fees are enforceable or not. In view of what I was told by HMCTS yesterday and until a court rules to the contrary, I am of the opinion that the fees prescribed should be paid by fine defaulters. To advise them to the contrary would, in my view, expose them to the problems some defaulters have experienced and costs they have incurred through following Happy Entrails' highly-questionable advice.

[bluebottle]

Re: Court fine and bailiff fees discussion

Perhaps he just means that he doesn't play chess?

Check.

[Guest]

Re: Court fine and bailiff fees discussion

Andy,

I know Philip very well indeed and it may be of interest if I explain a little more. As you may know, he was Chair of the Enforcement Law Reform Group (ELRG)from 2002 until 2007. Lord Lucas took over as Chair in 2008. Until his retirement he had worked for many years at DCA (Department for Constitutional Affairs). Apart from John Kruse, I do not believe that there is anyone with such extensive knowledge of bailiff matters.

I was invited by Philip in 2006 to be a personal member of ELRG (and indeed attended their meeting at the House of Lords last Monday to discuss the progress of the TCE Act regarding bailiffs).

Yes indeed were were all heavily involved in the TCE issues, we have kept in touch on and off since(mostly he indulges me when I need to pick his brains) He is also a very kind man.

[bizzybob]

Re: Court fine and bailiff fees discussion

Check mate to Happy Contrails then, the fees must be paid, but the bailiff should not exceed what is laid down in the contract. Unfortunately, usually the bailiff will always want more than he is entitled to,