Help marstons charged £403

[bizzybob]

Re: Help marstons charged £403

"Entry to levy distress
3
(1)An authorised officer may enter and search any premises for the purpose of executing a warrant of distress issued under section 76 of this Act for default in paying a sum adjudged to be paid by a conviction. The fine had already been paid, it is the Bailiff that has misrepresented himself by saying it had not and had been returned unpaid.

(2)The power may be exercised only to the extent that it is reasonably required for that purpose. Bailiff/Marstons need to justify the reason why this was required - was the "offender" one that had a history of non-payment and had a long list of fines requiring payment - I think not. As said above the fine had already been paid.”

The question has to be why was it reasonable & necessary in this instance.

Perhaps it would have been better if a bailiff relies on this in the same or similar circumstances, forces entry, and it is tested in court as to the reasonableness, and lawfulness of his action, forcing entry for fees alone.

[shaz]

Re: Help marstons charged £403

Thank you all for your advise so far.
I will be most certainly writing to Marston Group to request the ORIGINAL distress warrant and would like to see the WORDINGS on it. Like I have mentioned before I have had only ONE visit from Mr Kendall prior to Force Entry and in between his last visit I was in contact with the Marston office.
I believe when Marston Group realised I have started to ask questions They sent Mr Kendall with two police officers,a lock smith NEXT MORNING at 6am.
My understanding is this the whole purpose of this was to profit for the company not to recover the FINE.
It does mention on the bottom of the distress warrant THIS IS A COPY, ORIGINAL IS HELD AT OUR ADMINISTRATIVE OFFICES. so if I request the original Distress warrant it should be word for word identical to this one. However the Distress Warrant left by Mr Kendall is dated 23.01.13.

[gravytrain]

Re: Help marstons charged £403

"Entry to levy distress
3
(1)An authorised officer may enter and search any premises for the purpose of executing a warrant of distress issued under section 76 of this Act for default in paying a sum adjudged to be paid by a conviction. The fine had already been paid, it is the Bailiff that has misrepresented himself by saying it had not and had been returned unpaid.

(2)The power may be exercised only to the extent that it is reasonably required for that purpose. Bailiff/Marstons need to justify the reason why this was required - was the "offender" one that had a history of non-payment and had a long list of fines requiring payment - I think not. As said above the fine had already been paid.”

The question has to be why was it reasonable & necessary in this instance.

Indeed, the question is not that the bailiff had no right in law to force entry without additional permission.

[labman]

Re: Help marstons charged £403

No no one will argue on the legalities of that part, but as you say reliance on that initial warrant by concocting their own version, for their fees only needs testing in High Court

That's a very big 'only!'

[ploddertom]

Re: Help marstons charged £403

Of course theory & practice are 2 very different animals. Taking the first scenario the Forums would be littered with complaints about forced entry, I would tend to think this was one chancing his arm.

[labman]

Re: Help marstons charged £403

I agree totally Plodder -I think he's being very foolish, and as I've said, I very much doubt the CEO of Marstons would condone his actions (especially at the moment). However, technically it is legal - that's the problem.

So much of bailiff law needs tightening up properly, as there are too many of these anomalies. Let's hope the new legislation addresses some of this. I know it should sort out CT, as it looks like that is going to be much more transparent. Whether or not it will sort other things out, who knows?

[gravytrain]

Re: Help marstons charged £403

In most cases I suppose the need to utilize these powers disappear when the police are in attendance. It is widely thought that bailiffs do not report successful entries gained by the threat of using the act, only those involving police intervention. which would account for the low numbers recorded.

[bizzybob]

Re: Help marstons charged £403

That's a very big 'only!'

That only is wide enough to fly an Airbus A380 through.

[labman]

Re: Help marstons charged £403

That only is wide enough to fly an Airbus A380 through.

LOL - indeed it is!

[bluebottle]

Re: Help marstons charged £403

What legislation says is one thing. How it applies in practice is something completely different.

To use the offence of Blackmail as an example, under Section 21, Theft Act 1968, the statutory defence talks of the defendant "believing they have reasonable grounds for making the demand" and that "the use of menaces is a proper means of enforcing the demand". In practice, "believing they have reasonable grounds for making the demand" means the defendant has to prove they had a right in law to make the demand in the first place and "the use of menaces is a proper means of enforcing the demand" means the defendant has to prove the threats they have employed are lawful.

HMCTS will have ensured there is as little chance as possible of a contracted bailiff's conduct coming back and biting them on the bum. Therefore, a requirement to seek prior authorisation before forcing entry to a defaulter's property would make sense. After all, HMCTS is the contractee on behalf of the taxpayer and they have the absolute right to insist a contracted bailiff company abides by what HMCTS lays down. HMCTS cannot afford to risk condoning illegal/unlawful conduct or be seen to be condoning illegal/unlawful conduct by contracted bailiff companies. Unless I am mistaken, there is also a clause in the contract which makes mention of contracted bailiff companies bringing the courts and HMCTS into dispute or exposing them to litigation.

[labman]

Re: Help marstons charged £403

What legislation says is one thing. How it applies in practice is something completely different.

Sorry BB - this really made me smile, and I honestly don't mean this at all nastily. It's just I keep saying exactly that to you! lol

Please don't take that the wrong way, it just brought a smile to my face! :tinysmile_grin_t:

[bluebottle]

Re: Help marstons charged £403

I've come across this many times, Labman, mainly, when I was in the police force. Specifically, legislation will set down what the law is whilst government policy will dictate how it is interpreted and, consequently, applied, in practice, after seeking guidance from government law officers.

How Marstons operate may not be entirely in accordance with the official policy of MoJ/HMCTS. If MoJ/HMCTS has told Marstons one thing and Marstons has decided to do otherwise, then HMCTS's official policy will apply, regardless of any arguments Marstons may spout.

I think - and I hope I have interpreted this correctly - what you are saying is what happens is different to what the law actually says. This is true, but avoid falling into the trap of interpreting it as official policy, which may be completely at odds with what is actually happening. In all instances, refer to official policy for what should, in fact, be happening.

[gravytrain]

Re: Help marstons charged £403

Yes I see what you mean here BB but the simple fact is that you cannot bring action for the contravention of a regulation, if the regulation does not exist.

Don't wish to speak for anyone else here but I think what is happening is exactly what the law permits, that is the trouble, ever since this law was sneaked into this particular piece of legislation on that late sitting in the house of commons it has been a problem, but pretending it does not exist and saying that it somehow has no teeth is to my mind misguided and denies the obvious truth of the situation.

[CleverClogs]

Re: Help marstons charged £403

another interesting twist,Mr Kendall told me this morning that the payment I made to the court for the amount of £195.00 was REJECTED and returned to MARSTONS, I have just phoned the court and confirmed with them that they have received my payment of £195.00 and its cleared, and I have been advised YES they have received my payment and its with the COURT and NOT Marstons.
The whole incident was recorded this morning on my phone which inc Mr Kendall saying he is here to collect the court fine(which already has been paid).

Bailiffs
tell
lies.

[bizzybob]

Re: Help marstons charged £403

Either they were very sneaky with the DCVA, and forced entry, or they feckd up, and the law of unintended consequences slipped in.

But whatever the legal position, bailiffs have a propensity to lie, cheat and bully, one could even say they get off on it, looking at horror stories on advice forums.