Urgent advice needed re marstons distress warrant

[bluebottle]

Re: Urgent advice needed re marstons distress warrant

When a person is fined by a court, after pleading any mitigating evidence, a part of the proceedings, called Antecedents, is gone through. During Antecedents, the defendant's financial position and domestic and work situation are examined, along with other factors. This part of the proceedings must be undertaken before any fine can be imposed or custodial sentence handed down. If a fine is then imposed, the level, rate and frequency of payment is determined and set by the court. This is what would be more commonly referred to as Means Testing.

With regard to Further Steps Notices, I can confirm that these ARE a legal requirement by virtue of Rule 52.2, Criminal Procedures Rules 2011. The court is required to send this BEFORE any enforcement action can be considered or undertaken. Although the Rules do not specifically refer to Further Steps Notices by name, a court is, nevertheless, legally-required to send the notice to a defendant.

As regards the payment of fees to bailiffs for enforcing Distress Warrants for court fines, I have studied Rule 52.8, Criminal Procedures Rules 2011 and a number of other statutes, including those concerned with Criminal Justice, and can find no legal provision that authorises or permits certificated bailiffs, acting on behalf of HMCTS, to impose fees on fine debtors. Although Rule 52.8 mentions costs involved in execution, this, in my considered judgement, relates purely to the costs incurred in the removal and sale of goods seized by bailiffs. My gut-feeling as regards whether HMCTS or Marston Group can enforce fees is that if they were to be legally-challenged, they would both have serious problems trying to explain to a court as to where they draw their legal authority to charge any fees. They would, in my considered judgement, do everything possible to avoid being exposed to judicial and public scrutiny. If, as Happy Contrails says, the fees are part of a contractual arrangement between HMCTS and Marston Group, without applicable enabling legislation that requires a defendant to pay those fees, the fees are not enforceable upon the defendant without a Costs Order.

[Guest]

Re: Urgent advice needed re marstons distress warrant

Thank you bluebottle for clarifying it.

I trust this matter is closed and davyb and LB can seek their own counsel opinion before continuing to advise defendants they have a bailiffs fees liability for unpaid court fines.

I think we can all agree, that bailiffs do not tell the truth - I see the words "bailiffs lie" frequently menioned on this forum, and there is no reason why any professional adviser should follow the advice of a bailiff and pay £215/£85 fees just because a bailiffs document has a schedule of fees printed on it.

No professional adviser should be giving such advice without checking the facts and following prescribed regulations, namely Part 52 of the CPR 2011 and the precise terms of the HMCTS Enforcement Services Contract.

If a professional adviser has previously been advising that defendants have a statutory bailiffs fees liability for unpaid court fines, I believe, inlight of the result of this discussion, now would be a good time to review their risk management policy.

[Guest]

Re: Urgent advice needed re marstons distress warrant

Thank you bluebottle for clarifying it.

I trust this matter is closed and davyb and LB can seek their own counsel opinion before continuing to advise defendants they have a bailiffs fees liability for unpaid court fines.

I think we can all agree, that bailiffs do not tell the truth - I see the words "bailiffs lie" frequently menioned on this forum, and there is no reason why any professional adviser should follow the advice of a bailiff and pay £215/£85 fees just because a bailiffs document has a schedule of fees printed on it.

No professional adviser should be giving such advice without checking the facts and following prescribed regulations, namely Part 52 of the CPR 2011 and the precise terms of the HMCTS Enforcement Services Contract.

If a professional adviser has previously been advising that defendants have a statutory bailiffs fees liability for unpaid court fines, I believe, inlight of the result of this discussion, now would be a good time to review their risk management policy.

Council opinion would seem to disagree i am afraid, see the beginning of this thread, I am perfectly happy with the explanation offered by TT a few posts back, and repeat that it would be very unwise to refuse these fees on the grounds stated.

I am aware of BB"considered" opinions as are most of us on here, a peculiar use of the phrase i have always thought . It usually denotes an opinion of a collection of qualified minds, BB seems to use the term to denote his own pondering, considered by himself, rather than considered generally as being correct.

I feel for the good of the members current and future, a decision should be made about which advise should be given on this, as has been made on HC previous forums, specifically when the proffering of template letters is concerned.

Personally for the record, as said i am convinced that the current policy on here is correct and until solid evidence is produced to the contrary would advise that these templates should not be endorsed by this forum.

I am but a lowly member however and luckily the decision is not mine to make.

D

[bluebottle]

Re: Urgent advice needed re marstons distress warrant

Even legal professionals will only offered a considered opinion, Davy. Each person has their own way of interpreting the law. In the absence of case law which clarifies a particular point of law or statute law which enables something to be done, it should be taken that the law does not allow whatever to be done.

[Guest]

Re: Urgent advice needed re marstons distress warrant

Even legal professionals will only offered a considered opinion, Davy. Each person has their own way of interpreting the law. In the absence of case law which clarifies a particular point of law or statute law which enables something to be done, it should be taken that the law does not allow whatever to be done.

Yes BB, only a little affectionate ribbing, however when someone refers to "considered opinion " they are usually referring to someone else, when it is referring to yourself it can in my view sound a little pompous, a bit like saying in my excellent opinion, not that your opinion isn't excellent of course.

D

[labman]

Re: Urgent advice needed re marstons distress warrant

As regards the payment of fees to bailiffs for enforcing Distress Warrants for court fines, I have studied Rule 52.8, Criminal Procedures Rules 2011 and a number of other statutes, including those concerned with Criminal Justice, and can find no legal provision that authorises or permits certificated bailiffs, acting on behalf of HMCTS, to impose fees on fine debtors. Although Rule 52.8 mentions costs involved in execution, this, in my considered judgement, relates purely to the costs incurred in the removal and sale of goods seized by bailiffs. My gut-feeling as regards whether HMCTS or Marston Group can enforce fees is that if they were to be legally-challenged, they would both have serious problems trying to explain to a court as to where they draw their legal authority to charge any fees. They would, in my considered judgement, do everything possible to avoid being exposed to judicial and public scrutiny. If, as Happy Contrails says, the fees are part of a contractual arrangement between HMCTS and Marston Group, without applicable enabling legislation that requires a defendant to pay those fees, the fees are not enforceable upon the defendant without a Costs Order.

Taken from the Ministry of Justice site http://www.justice.gov.uk/courts/pro...esmenu/part_52

Execution of a warrant to take goods, etc.
52.8 1.1.—(1) A warrant may be executed by—

(a) any person to whom it is directed; or
(b) anyone authorised to do so by section 125([1]) (warrants), 125A([2]) (civilian enforcement officers) or 125B([3]) (execution by approved enforcement agency) of the Magistrates’ Courts Act 1980.
(2) The person who executes a warrant must—
(a) explain, in terms the defendant can understand—
(i) the order or decision that the warrant was issued to enforce,
(ii) the sum for which the warrant was issued, and
(iii) any extra sum payable in connection with the execution of the warrant;

---

As you can see this mentions neither costs nor fees. However, the fact that there is an Administration Fee of £85 and an Attendance Fee of £215 would suggest they are fees. To me it is splitting hairs, as a fee or cost for enforcement action cannot be included in the original fine as there is no way at that time of predicting the future. If enforcement action becomes necessary, then it will be charged as per the contract between the Court Service and bailiff company.

The guide is accurate in that if you cannot afford your fine, you should contact the fines officer and the court will call you for a Means Enquiry Hearing as explained in the guide. There is no fee for this. The Magistrate will consider your circumstances and set an affordable payment arrangement.

If you are on benefits, or go onto benefits, then you should make the court aware immediately of any change in circumstances so new arrangements can be put into place. Deductions are capped at £8.40 per week. http://www.legislation.gov.uk/uksi/2004/2889/made

The really important thing to me here is that it seems some are suggesting that the £215 and £85 fee are not legally enforceable under contract law, as the contract for these fees is between only the Court Service and the bailiff company.
IS THIS CORRECT?
The law of contract is extremely complicated, and full understanding of it is beyond me - many highly qualified legal professionals argue the finer details of contract law. However, if the court service has agreed the fees and they are set down, which they are, then until there is solid proof to the contrary, I believe the advice of Legal Beagles should remain as it is. Once that proof is provided as solid proof, not theory presented as fact as Happy Contrails is currently doing, challenged correctly by DavyB and considered without any really definitive outcome by Bluebottle, I am sure this site will be more than happy to change its advice. Until that proof has been provided, I would suggest deviating from current advice is foolish and further, I believe this site should NOT be enabling the promotion of fee charging sites (albeit voluntary fees) from the owner of that site.

I hope this clarifies things a bit. I do not intend being drawn into a personal slagging match which I read with disgust last night and was ashamed to be associated with a site which allows people to voice this sort of abuse to well intentioned members, regardless of whether they are right or not.

[bluebottle]

Re: Urgent advice needed re marstons distress warrant

I think the best thing I can do, Labman, is seek clarification from the Ministry of Justice via an FOIA request. If they can quote the necessary statute or statutory instrument that means a defendant is liable to pay bailiff fees for administration and attendance without a Costs Order, all well and good. If they are evasive and cannot, then that would tend to indicate there is something decidedly dodgy about it.

[labman]

Re: Urgent advice needed re marstons distress warrant

It is the issue of the contract law surrounding the contract between HM Courts and the bailiff companies that needs a definitive answer. Do the fees stated in the contract have legal standing, and if so where?

Until that is answered I would err on the side of caution and give HM Courts the benefit of the doubt.

[bluebottle]

Re: Urgent advice needed re marstons distress warrant

Yes BB, only a little affectionate ribbing, however when someone refers to "considered opinion " they are usually referring to someone else, when it is referring to yourself it can in my view sound a little pompous, a bit like saying in my excellent opinion, not that your opinion isn't excellent of course.

D

In my considered judgement is a phrase I have used over the years to cover myself when expressing an opinion on a legal or quasi-legal matter. It was something a solicitor I knew, now, sadly, no longer with us due to cancer, advised me to use. It's a way of saying, "After taking everything into consideration, this is what it seems to me."

Hope that answers your query.

[bluebottle]

Re: Urgent advice needed re marstons distress warrant

It is the issue of the contract law surrounding the contract between HM Courts and the bailiff companies that needs a definitive answer. Do the fees stated in the contract have legal standing, and if so where?

Until that is answered I would err on the side of caution and give HM Courts the benefit of the doubt.

I think what you say is very wise, Labman. I will restrict any FOIA request to what you have said. It will be interesting to see if they come straight out with something or duck and dive.

[Guest]

Re: Urgent advice needed re marstons distress warrant

In my considered judgement is a phrase I have used over the years to cover myself when expressing an opinion on a legal or quasi-legal matter. It was something a solicitor I knew, now, sadly, no longer with us due to cancer, advised me to use. It's a way of saying, "After taking everything into consideration, this is what it seems to me."

Hope that answers your query.

Hey whats in a word but i would go with, "after due consideration" myself.

The minutia surrounding the charging of bailiff fees has never really interested me, I prefer to study something that has a degree of logic attached.
However when i see accepted guidance issued by people who's opinions I do respect rubbished, then i require solid proof if I am going to alter my view.
Despite the rhetoric i have seen none.

D

[bluebottle]

Re: Urgent advice needed re marstons distress warrant

Hey whats in a word but i would go with, "after due consideration" myself.

The minutia surrounding the charging of bailiff fees has never really interested me, I prefer to study something that has a degree of logic attached.
However when i see accepted guidance issued by people who's opinions I do respect rubbished, then i require solid proof if I am going to alter my view.
Despite the rhetoric i have seen none.

D

Bailiff fee fraud has been a prickly subject for some time as I am sure you are aware, Davy. There is nothing to be lost from checking with MoJ, which I am going to do with an FOIA request, as to what legislation they are relying on to make fine debtors pay bailiff fees for administration and attendance without a Costs Order.

[Guest]

Re: Urgent advice needed re marstons distress warrant

Taken from the Ministry of Justice site http://www.justice.gov.uk/courts/pro...esmenu/part_52

Execution of a warrant to take goods, etc.
52.8 1.1.—(1) A warrant may be executed by—
.

Mr. Labman, you never cease to amaze me.

How do you interpret this legislation applies to bailiffs fees on unpaid court fines?

If you took time to read the legislation you copied into your post - it says at the top of the page - and let me shout it from the rooftops - just to be sure you hear it the first time....




*fingers in ears, drum roll......takes a deep breath...*












Enforcement of fines and other orders for payment




Strewth!



*pulls plugs out of ears....*

So, did you hear that?

Now - go see that link you posted, and tell me what it says at the top of the page?

You see it now?





GREAT!!!



So, Mr Labman the question remains -

When does a schedule of bailiffs fees printed on a company's headed paper become an order for payment, or a fine?









Sorry, peeps, that was the only way to get it through to him.

[labman]

Re: Urgent advice needed re marstons distress warrant

Again I have better things to do than respond to this, so I'm not going to. However, it seems your modus operandi when challenged is to insult and attempt to belittle people. Congratulations on failing to do so!

[Guest]

Re: Urgent advice needed re marstons distress warrant

Its a simple question, or like contracts, the question is too complex?

and when did I insult you? sorry I didnt intend to insult you, my bad then, but , please pritty pritty please answer the Q. Im sure others would like to see it too.