Marston clamping

[TUTTSI]

Re: Marston clamping

Very well done and I am really pleased that you followed our advice on this forum and got a result.

Please stay around and help others in a similar situation as yourself as these Bailiff companies try and pull the wool over your eyes and tell you they are right all the time.

Just had a call from Marston Group. One of the higher ups. Apologised profusely and has arranged a cheque to be sent back to us for the full amount. DVLA have also apologised profusely and admitted the mistake. I think i will still be making a complaint, more directly about the enforcement agent who applied the clamp as he was extremely rude and obviously stopped us from being able to take my fianceé to her doctors appointment.Thank you for all of the advice you've given, I dont think this would have been sorted as soon as it has been if it wasnt for the information you've been able to supply me with.

[whufc]

Re: Marston clamping

Thanks both, will definitely stick around and help out where I can. Puffrose I am happy for you to bump this thread for new members

[Hurricane Puffrose]

Re: Marston clamping

BUMPED.

Thought I would welcome Celestine home with good news!!

[bluebottle]

Re: Marston clamping

Just had a call from Marston Group. One of the higher ups. Apologised profusely and has arranged a cheque to be sent back to us for the full amount. DVLA have also apologised profusely and admitted the mistake. I think i will still be making a complaint, more directly about the enforcement agent who applied the clamp as he was extremely rude and obviously stopped us from being able to take my fianceé to her doctors appointment.Thank you for all of the advice you've given, I dont think this would have been sorted as soon as it has been if it wasnt for the information you've been able to supply me with.

Before making any complaints to anyone, I would ask DVLA to explain how they obtained a distress warrant. If, as I suspect, they went to court and obtained judgement against your fiancee, they are going to have to go back to the court and ask for the judgement to be quashed or, if they say your fiancee has to do it, make sure they confirm, in writing, that they will pay all costs involved. I would also be inclined to seek damages from them for damage this has been caused to your partner's character and reputation.

If your fiancee paid by debit card, Marstons should refund by same method, not by cheque. Ring the higher-up first thing tomorrow morning and point this out. Any refund MUST be by the same method of payment. Offering a cheque in payment is illegal under certain circumstances. This is such a case. Section 2, Theft Act 1978 (Inducing A Creditor to Wait for Payment) refers. If they try the "Company Policy" trick, make them pay for special clearance of the cheque and don't forget to claim for any loss of interest if it has come from an interest-bearing account.

Don't forget that the police are looking into this matter and you will, eventually, have to advise them of what has happened since you initially reported it to them.

As far as the bailiff who clamped your car is concerned, his actions are indefensible and inexcusable. He certainly trespassed on your driveway and against your fiancee's property, i.e. her car. She is entitled to claim damages from Marstons for this. The only mitigating factor Marstons have is that DVLA cocked-up. Other than that, the bailiff should have taken note of what you and her were telling him and checked this with DVLA. He did not. That makes him and Marstons liable. Whether criminal charges could be brought against the bailiff is debatable. However, due to the fact he blundered on, failing to check what he was being told by you and your fiancee about the tax disc and, in doing so, put the health of your fiancee at risk, this raises serious questions as to his fitness to act as a bailiff. What he has done contravenes Section 3, Health and Safety at Work Act 1974 (Failing to Ensure Safety of Public). Marstons are liable for this, too. Both bailiff and Marstons could be liable to action by Health and Safety.

There are two courses of action available in respect of the actions of the bailiff -

1. You can write to the Court Manager at the court that issued the bailiff's certificate with a written complaint. If the District Judge considers the complaint to be serious enough to warrant requesting you to submit a Form 4 complaint, you will be told; or
2. You can put pressure on the higher-up at Marstons by informing him of the legal consequences of his bailiff's actions and the fact that the police are investigating the matter. You need to point out that the bailiff's actions raise serious questions as to his fitness to act as a bailiff and it would be in Marstons and the bailiff's best interests for him to surrender his certificate to the court of issue, voluntarily, rather than risk having it revoked and his bond forfeited by the court at a Form 4 hearing. Make sure Marstons are aware you will check to ensure the court have received his certificate. I would give him until midday tomorrow to surrender his certificate.

This may sound extremely harsh, but, compared to what could have happened if your fiancee had become seriously-ill as a result of the bailiff's actions, I cannot see Marstons having much to argue about. You can always report them to Health and Safety if they won't take the matter seriously.

Once you have given Marstons a metaphorical hiding, you will need to write to Simon Tse, at DVLA, and ask him to explain why what happened happened. You will also need to write to Justine Greening at DfT once you have received a response from Simon Tse. She needs to be made aware of what has happened.

Marstons have a contract with HMCTS. Their actions raise questions as to whether this contract should be reviewed. I would, therefore, recommend that a letter be sent to the Permanent Secretary at the Ministry of Justice, which is responsible for HMCTS. The contact details are -

Sir Suma Chakrabarti KCB
Permanent Secretary
Ministry of Justice
102 Petty France
London
SW1H 9AJ

Sir Suma is the most senior civil servant at the MoJ and is in overall charge of the MoJ and its various divisions, including HMCTS. The politicians, simply, decide policy.

The above may seem a lot, but if it achieves the desired result and stops this bailiff from endangering some other unsuspecting couple, then good will have prevailed.

[whufc]

Re: Marston clamping

I have already made the police aware of the latest, i.e. that Marston have admitted fault and are refunding the full amount. I was not aware that they should not do this by cheque and so I shall give them a call this morning. The police are not going to investigate this further but they are going to keep the record "open" so that I can go back to them should I have any problems.In a twist of events, the DVLA spoke to my fianceé last night and informed her that they do not have any paperwork regarding this, and they said that Marston should not have done anything without consulting them. This has left me confused as I now wonder where Marston even got the instruction from? Or is it a simple as DVLA trying to pass the buck?

[bluebottle]

Re: Marston clamping

I have already made the police aware of the latest, i.e. that Marston have admitted fault and are refunding the full amount. I was not aware that they should not do this by cheque and so I shall give them a call this morning. The police are not going to investigate this further but they are going to keep the record "open" so that I can go back to them should I have any problems.In a twist of events, the DVLA spoke to my fianceé last night and informed her that they do not have any paperwork regarding this, and they said that Marston should not have done anything without consulting them. This has left me confused as I now wonder where Marston even got the instruction from? Or is it a simple as DVLA trying to pass the buck?

If you look at the bit I've highlighted in red, read it a couple of times. Then ask yourself this question, "If they don't have any paperwork, why are they saying Marston should not have done anything without consulting them?" They must have sent something to Marstons, even in electronic form, i.e. as an email or PDF file, for Marston to have come round to your home and do what they did.

DVLA need to explain the following -

1. Have they obtained a judgement against your fiancee and, if so, when and at which court?
2. Have they or are they going to get the judgement quashed and pay the full costs of doing so?
3. Are they aware they are 100% vicariously-liable for the actions of Marstons, whatever?
4. Are they aware of the breaches of Health and Safety legislation by the Marstons bailiff, for which DVLA are vicariously-liable?
5. Are they prepared to pay damages for trespass to property, i.e. your fiancees car, and any damage the bailiff caused to it in his eagerness to illegally extort money from her?
6. If a CCJ has been obtained by them against you fiancee and this has been recorded on her credit record, are DVLA going to have this removed and make good any damage or detriment this has caused to her credit history?

DVLA have very little choice but to be straight with your fiancee. What they have done is totally illegal and they know it. I doubt that Simon Tse will take this seriously. The last time DVLA seriously messed-up, he went onto BBC TV's Watchdog programme and tried to bluff and bu:censored:it his way out of it. He failed miserably. Anne Robinson tore him to shreds. Although you should write to him and ask him to explain why what happened happened, I feel that going straight to Justine Greening is probably going to achieve more.

As for Marstons, I would go back to this higher-up who contacted your fiancee and ask them to explain exactly why they did what they did and, if possible, obtain the name of the person at DVLA who authorised them to clamp your fiancee's car. If they are not willing to repay the £600 by electronic transfer, hit them with a £50 charge, this being interest at 8% plus an element for express clearance of the cheque. You can always go back to the police if they become awkward.

Other things your fiancee can consider are damages for trespass to her car by Marstons and "make good" any damage to the car by use of the wheelclamp. I'm afraid you would not be able to claim damages for trespass on your driveway. Only your landlord can do that.

Your fiancee should file complaints against Marstons with the OFT Credit Fitness Team and your local Trading Standards Department. Even though they are paying the money back, what happened is serious and it does raise questions as to Marstons' fitness to hold an OFT Credit Licence.

[whufc]

Re: Marston clamping

Thanks for the above, i will be sure to include it. One more thing that i forgot to mention in earlier posts,the bailiff involved took my fianceés bank account details over the phone. He took the long number on the front, and the security code and expiry date. When he arrived at our property he told us that the account details were not going through the system. He wanted to double check that he had them correct and it was then that we noticed he had written our card details on a piece of paper inside his folder. As a result of this my fianceé has had to cancel her current card and a new one is being sent to her by the bank. I think that this is a breach of the Data Protection Act. In my job we are not allowed to write any bank details down on paper, we can only enter them into our secure system, and I know that the consequences can be severe if anybody does this. Can anybody advise on if I am correct in thinking that this is a breach of Data Protection? And also is it right that the bailiff took our bank details himself instead of asking us to call in to make payment? Sorry to only bring this up now, i just want to make sure i get every valid point across to them when i send my complaint letter.

[bluebottle]

Re: Marston clamping

You are quite right to be concerned and in what you say. What the bailiff has done not only amounts to a breach of the Data Protection Act 1998, it is also a breach of OFT Debt Collection Guidelines. Marstons are already in enough trouble over this fiasco and they have just dropped themselves and their muppet masters, the DVLA, in it even deeper.

As such, the muppet, sorry, bailiff, should have asked you to pay via a secure payment system, not do what he did. He was acting illegally in any case, but that is a separate issue. I would strongly advise your fiancee to check with her bank to ensure Marstons have not taken out more than the £600 they say they took.

With regard to the refund you fiancee is due, I would chase this up today, as companies have an awful habit of putting off payments. If your fiancee's bank have now blocked her card, she may have to accept a cheque repayment. If this is the case, I would be inclined to ring the higher-up at Marstons and insist on payment of interest at 8% on a cheque repayment or a cash repayment. In both cases, receipt of the repayment must be within 24 hours.

With regard to the risk to your fiancee's health, taking account of her pregnancy and kidney infection, I would report this to your local authority's Environmental Health Department. Ask to speak to a Health and Safety Inspector when you call them.

Go to www.ico.gov.uk and download a complaint form. This is the website of the Information Commissioner's Office who, as you know, enforces the Data Protection Act 1998 and has the power to impose a Civil Monetary Penalty of up to £500,000 on offenders.

I would urge your fiancee to check with her bank today for any irregular payments out of her account since the muppet took her bank details and report them to the police. As you have posted, the police have left the case open in case any anything like this crops up.

I would get the complaint to OFT Credit Fitness Team off today, if at all possible.

BB

[whufc]

Re: Marston clamping

Thanks BB, we have taken notes from all the information you have kindly provided us with and we are in the process of drawing up two complaint letters (one for Marston and one for the DVLA). However, my fianceé does not wish to speak with them directly anymore as she is finding dealing with them very stressful. The vehicle is registered in her name and therefore all conversations have, so far, happened with her. (except for the report to the police which i did). Therefore, my last question (for now) is whether there is any way I am able to make these complaints? Or do they have to come from her as the vehicle is registered in her name? Marston are still going down the cheque route for the refund and I would like to call them up myself to have a chat about why they wont refund via BACS or DCT. However, if this is going to be a pointless exercise because I am not the vehicle owner, or the bank account holder, then I wont do that. The written complaints will come from my fianceé but it appears that getting some answers over the phone is proving to be impossible, i was hoping that I might have a little more luck if i was able to speak to them.

[bluebottle]

Re: Marston clamping

Hi again,

As this is a legal matter, all communications should be in writing, that is, initial email, followed by hard copy letter sent by Recorded/Special Delivery.

As the vehicle is registered in your fiancee's name, she is the one who has to deal with it. However, there is way that you can deal with it and that is to draw up an Authority to Act document and a Form of Consent under the Data Protection Act 1998. Your fiancee signs both documents and this then allows you to deal with the matter. I would advise this in view of your fiancee's health.

Marstons are bound by the OFT Debt Collection Guidelines, as they hold an OFT Debt Collection Licence and cannot refuse to deal with an appointed third party representative.

You should send wet signed copies of the forms to both DVLA and Marstons.

I will draw up some suitable forms for you to print off.

[bluebottle]

Re: Marston clamping

Authority to Act and Forms of Consent attached. They are in rtf format so will open in virtually any word processing package.

[whufc]

Re: Marston clamping

That would be great. Thanks very much.

[bluebottle]

Re: Marston clamping

You're welcome. Let us know how you get on.