Form 4 issues

[ploddertom]

As most know I post both here & CAG under the same username but do tend to keep things separate and rarely crosspost. However I do think the links below are worthy of mention & should be read.

http://www.consumeractiongroup.co.uk...iewing%29-nbsp

http://www.consumeractiongroup.co.uk...iewing%29-nbsp

They are both different threads even if the titles are similar. My reasons for posting is because there have been arguments both here and elsewhere over this previously and think this now reflects facts.

[bizzybob]

Re: Form 4 issues

As most know I post both here & CAG under the same username but do tend to keep things separate and rarely crosspost. However I do think the links below are worthy of mention & should be read.

http://www.consumeractiongroup.co.uk...iewing%29-nbsp

http://www.consumeractiongroup.co.uk...iewing%29-nbsp

They are both different threads even if the titles are similar. My reasons for posting is because there have been arguments both here and elsewhere over this previously and think this now reflects facts.

Thanks ploddertom, this illustrates very well the perils of Form 4

[bluebottle]

Re: Form 4 issues

It is not always necessary to submit a Form 4 complaint in order that a certificated bailiff stands to lose their certificate. In Hampshire last year, a seriously-ill woman's home was besieged for five hours by a Ross & Roberts bailiff and an uncertificated lout who was with her. Hampshire Police were called and subsequently ordered the bailiffs to leave. The woman did submit a Form 4 to the bailiff's certificating court, but withdrew this on the advice of myself and another CAG member. She then submitted a letter, accompanied by written statements from neighbours who witnessed the incident, video footage and a police report of the incident. Two weeks later, she received a letter from the Court Manager at the bailiff's certificating court, informing her that the bailiff's certificate had been "discharged", in other words, revoked. Civil Procedures Rules allow a court to make a decision on its own initiative and to dispose of a case without a hearing, which is clearly what happened in that case.

You will probably know the case I'm talking about, PT, but it just goes to show that bailiffs are vulnerable to having their certificate revoked without having a barrister to do the talking for them. Even if their certificate isn't revoked, the complaint can still be taken into account when the bailiff's certificate is coming up for renewal.

[CleverClogs]

Re: Form 4 issues

They are both different threads even if the titles are similar. My reasons for posting is because there have been arguments both here and elsewhere over this previously and think this now reflects facts.

I would not trust that bewigged booby to judge even a vegetable marrow contest.

Yes, it might be seen as "draconian" to deny a certificated thug his means of extorting excessive and inflated fees, but how much less objectionable is it for the state or the courts to condone misbehaviour?

For complainants to be faced with a costs order simply makes a mockery of justice.

[bizzybob]

Re: Form 4 issues

I would not trust that bewigged berk to judge even a vegetable marrow contest.

Yes, it might be seen as "draconian" to deny a certificated thug his means of extorting excessive and inflated fees, but how much less objectionable is it for the state or the courts to condone misbehaviour?

For complainants to be faced with a costs order simply makes a mockery of justice.

They have to justify the status quo, (not the gnarled grizzly rockers) as they think it would harm public perception of enforcement if bailiffs kept getting certificates removed, as in well they all were a bunch of thugs with not a good one amongst them.

[Milo]

Re: Form 4 issues

Bluebottle

Good advice. Judges have a wide discretion on all court matters and are able to cancel a bailiff certificate if there is overwhelming evidence of serious wrongdoing. This can be done without ordering the person making the complaint to court.In the case that you refer to there is a possibility that the Judge would have known of previous complaints on the certificated bailiffs court file or even a pending Form 4 hearing.

My personal opinion is that I do not agree with the judgment however, as can be seen, the court made an exceptional request to the Attorney General for him to provide an advocate to assist the court in order to clarify the position regarding costs for Form 4 complaints. Following the judgment, the Ministry of Justice amended the EX345 to warn complainants that costs can be awarded against them in favour of the bailiff. To therefore ignore the Judgment would be foolish and could very likely be costly.

Within the past few days I been made aware of the existence of a small "advice" forum that claimed in mid March that they had sold 1,100 Form 4 packs and that "apparently" they process 50-60 Form 4 packs a week. If true, then to date they would have sold 1,300 Form 4 packs.

Given that there are only 1,680 certificated bailiffs in England & Wales this "advice forum " is either seriously misleading the public or, if the figures are correct ( which I very much doubt) ....nearly 80% of all bailiffs in the country have Form 4 complaints against them !!!!

Hopefully, that forum will reconsider its advice to visitors that courts cannot impose courts orders in favour of the bailiff.

[Fair-Parking]

Re: Form 4 issues

It may help this forum to know that this case is more than familiar to me. I attended in person on several occasions and sat next to Mr Smith the Attorney General's advocate. The first thing I should say that on balance I do not agree with the judgment and that secondly it is disingenuous to presume HHJ Cryan to be 'bewigged berk'. HHJ Cryan was charming and considerate judge who displayed a great deal of patience throughout 12 days of this hearing which commenced in 2008 and was not disposed of until February 2011.

This was a complicated case in which two completely unconnected complaints Form 4 complaints were lumped together by the court long before it was allocated to HHJ Cryan. In the end there were three complainants and two bailiffs whose defence was funded by Marstons and though HHJ Cryan made the point that complex cases require complex and potential expensive defences, he did not pick up on the fact that it was Marstons policy to send in a possee of barristers and solicitors on every Form 4 complaint with a view to having all complaints dismissed and making the complainants pay heavily before trrumpeting this on their website in order to dissuade other potential complainants. This policy was explained on their website. In the event their barrister Mr Salmon had the capacity to speak all day and every day and without interuption and thus cause the proceedings to drawn out. There is a lot more that I could say about this case, but at this point I will content myself by posting the notes that I made at the hearing on 11th October 2010, three months prior to HHJ Cryan delivering his judgment.

NOTES ON HEARING 11^TH OCTOBER 2010
To determine whether costs should be awarded in Form 4 Complaints

In attendance before Judge Cryan were Complainants, R. J. Clark - Mackenzie Friend. Advocate to the Court Matthew Smith and Jonathon Salmon - Advocate for the Respondents and Marstons.

In these notes JC refers to Judge Cryan, AS to Advocate Salmon. Those words within brackets refer to my understanding of what was said and where that was unclear I have used MI (my interpretation).

JC - ‘This hearing is to decide the correct approach to law’. ‘It will be ‘persuasive’. ‘The court has a public interest in ensuring that bailiffs behave themselves’

On the question of costs JC - ‘It is a great discouragement for the public to bring matters to the court’

JC - ‘What is a Form 4 complaint?’ ‘You don’t pay fees to the court’. ‘Does anybody know of another instance where fees are not payable to the court?’

AS on the question of jurisdiction ‘Winner gets all is the principle, but needs to be considered’
JC – ‘If such jurisdiction exists’
AS – ‘It is governed by CPR’
JC – ‘Does CPR apply?’
AS – ‘Do the CPR rules apply?’

JC – ‘Is the complainant a party to proceedings?
AS – ‘Anybody who is served a document is a party’

On the Form 4 itself, JC - ‘It doesn’t carry a health warning’. ‘Are there any other proceedings which are not covered by fees?’
AS – MI – Fees are exempt in certain cases.
JC - ‘Exempt fees do not help’, ‘A joint view is sought’

JC on magistrates courts – ‘There are not complainants but court issues summons’, ‘Not the same as summons in county court’
JC - ‘Specific costs rules at the conclusion – statutory power’, ‘Slight analogies to the county courts’.

JC on question of bailiff applications for certificates or renewal of them, - ‘There are objectors to bailiff applications saying what they say on Form 4 complaints’. ‘Are they civilly vulnerable?’ ‘Is there a difference in status?’
AS - ‘Circus of people giving a Form 4 complaint’. ‘Not cross examined’.
JC – ‘Needs a hearing’. ‘Discouragement to the public if they are at risk’.

On the merits of Distress for Rent Rules 1988, Rule 8
Para 3a JC – ‘No order for costs’
Para 4bb JC – ‘Who is an interested party?’
AS – ‘Complainant is an interested party’
JC – ‘Is District Judge an interested party?’
JC – In response to AS ‘Bailiffs are not officers of the court’
AS – ‘Other courts have allowed bailiff companies costs’. ‘Marstons may well have a monetary interest’ MI – ‘Marstons have been debarred from this action’.
JC – ‘Is there any difference between any interested party and a party?’
AS – ‘There is no difference’
JC – ‘It may not be a party’
AS – ‘It may not be a party’ MI ‘A party is defined under S151 Senior Courts Act 1981 p2391 Vol 2’.

On the merits of page 973 (?)
AS – ‘This includes any person who by the rules of court has received notice’. ‘You become a party whether you like it or not if you receive notice’.
JC – ‘What does the notice have to say?’

On costs generally
AS – ‘Section 51 CPR 48.2 confers the power to order costs against non parties’.
JC – ‘Must be a party for costs only’.
AS – ‘I was inelegant’
JC – ‘You were inaccurate’

On who are parties
AS - ‘It is the contention of the respondent bailiffs that they (the complainants) are party to the proceedings
1)By the manner of language used in Rule 8 (Distress for Rent Rules 1988) and the part the complainant plays in Rule 8 i.e. a signed form.
2)They are able to make representations at the complaint hearing’

AS – ‘A bailiff is given notice so is a party falling within the definition of ‘party’ (see 151) and included people who have been served notice’
JC – ‘Is it really the case that if a judge is satisfied, a complainant is a party by being served notice of his decision?’ ‘Shockingly sloppy legislation’

On Rule 9 Distress for Rent Rules
Para 1 JC – ‘Forfeit is meant as compensation and not as a penalty’. ‘If it is forfeited, where does the money go?’ ‘If the compensation exceeds £10,000, where is the power to order more?’
AS – ‘There is none’
JC – ‘No’

General question
JC – ‘Is a Form 4 complaint an application?’

Back to Rule 9
AS – ‘Do we need to set out Rule 9 for costs or forfeit?’
JC – ‘It is not a route for costs’
AS – ‘It is only a method to order costs one way’
JC – ‘It is a very efficient way for a complainant to recover costs as he doesn’t need a barrister’.

JC - ‘What’s the appeal?
AS – ‘There is no appeal’. ‘The rules do not provide a mechanism for appeal’
JC – ‘Can’t appeal then?’
JC – ‘What type of appeal?’
AS – ‘Part 52 p1577’
JC- ‘Quite important in my thinking’
JC – ‘Distress for Rent Rules (Rule 11) fees not costs’
AS – ‘Can have power of part 47 (p12)

At this point 4.40pm. Judge adjourned hearing, only Jonathon Salmon having put his argument forward. The hearing reconvenes at 2pm on December 15^th

AS based much of his skeleton argument on the following

QBCOF 92/0984/D Court of Appeal 27 April 1993 - 1993 WL965798
The Queen v The Secretary for State for Wales Dyfed County Council, National Park Department
Before LJ Neill, LJ Steyn and LJ Rose

1997 1 W.L.R. 359 QB Division 25 October 1996
Regina v Camden London Borough Council
Before Sedley J

1964 H No 23 Court of Appeal
Harkness v Bell’s Asbestos & Engineering Ltd
Before Lord Denning MR, Diplock and Russell L.JJ

And a summary of R v Darlington before Auld J (pages 53 – 57)

R.J. Clark pp
Fair Parking
14 October 2010

Other notes and observations

AS ‘Warrant is notice’
AS still believes this to be adversarial
Hearing – Do we need one?
Rule for parking - not a general
TEC
CPR 75
Form 4 is their only recourse. Form 5 doesn’t apply
Fees - complainants are not litigants
No health warning
Distress for Rent Rules contain no indication as to possible costs and does not prepare complaints for them. They should not be exposed to £10,000
What are costs likely to be if only bailiff comes to court?
Bailiff being represented is not part of procedure though he can make representations
No warrants
Law may well be wanting, but it is the law
Magistrates courts and county courts do not have same rules
Rules 8 & 9 have not been applied in this case
If judge finds for bailiff, he may well be entitled to costs
Court orders bailiff to appear and not complainant and this should pay the costs
Complainant has no say in this
No appeals procedure for complainant
Rule 11
Hearing is to determine whether the bailiff is a fit and proper person
Complainants should not be paying costs to bailiff companies who invite themselves

[Milo]

Re: Form 4 issues

Bluebottle

Good advice. Judges have a wide discretion on all court matters and are able to cancel a bailiff certificate if there is overwhelming evidence of serious wrongdoing. This can be done without ordering the person making the complaint to court.In the case that you refer to there is a possibility that the Judge would have known of previous complaints on the certificated bailiffs court file or even a pending Form 4 hearing.

My personal opinion is that I do not agree with the judgment however, as can be seen, the court made an exceptional request to the Attorney General for him to provide an advocate to assist the court in order to clarify the position regarding costs for Form 4 complaints. Following the judgment, the Ministry of Justice amended the EX345 to warn complainants that costs can be awarded against them in favour of the bailiff. To therefore ignore the Judgment would be foolish and could very likely be costly.

Within the past few days I been made aware of the existence of a small "advice" forum that claimed in mid March that they had sold 1,100 Form 4 packs and that "apparently" they process 50-60 Form 4 packs a week. If true, then to date they would have sold 1,300 Form 4 packs.

Given that there are only 1,680 certificated bailiffs in England & Wales this "advice forum " is either seriously misleading the public or, if the figures are correct ( which I very much doubt) ....nearly 80% of all bailiffs in the country have Form 4 complaints against them !!!!

Hopefully, that forum will reconsider its advice to visitors that courts cannot impose courts orders in favour of the bailiff.

Sorry......an error was made in the last line of my previous post. It should read as follows:

Hopefully, that forum will reconsider it's advice to visitors that Courts CAN impose costs orders on complainants in favour of a bailiff.

[Milo]

Re: Form 4 issues

Bluebottle

Good advice. Judges have a wide discretion on all court matters and are able to cancel a bailiff certificate if there is overwhelming evidence of serious wrongdoing. This can be done without ordering the person making the complaint to court.In the case that you refer to there is a possibility that the Judge would have known of previous complaints on the certificated bailiffs court file or even a pending Form 4 hearing.

My personal opinion is that I do not agree with the judgment however, as can be seen, the court made an exceptional request to the Attorney General for him to provide an advocate to assist the court in order to clarify the position regarding costs for Form 4 complaints. Following the judgment, the Ministry of Justice amended the EX345 to warn complainants that costs can be awarded against them in favour of the bailiff. To therefore ignore the Judgment would be foolish and could very likely be costly.

Within the past few days I been made aware of the existence of a small "advice" forum that claimed in mid March that they had sold 1,100 Form 4 packs and that "apparently" they process 50-60 Form 4 packs a week. If true, then to date they would have sold 1,300 Form 4 packs.

Given that there are only 1,680 certificated bailiffs in England & Wales this "advice forum " is either seriously misleading the public or, if the figures are correct ( which I very much doubt) ....nearly 80% of all bailiffs in the country have Form 4 complaints against them !!!!

Hopefully, that forum will reconsider its advice to visitors that courts cannot impose courts orders in favour of the bailiff.

Sorry......an error was made in the last line of my previous post. It should read as follows:

Hopefully, that forum will reconsider it's advice to visitors that Courts CAN impose costs orders on complainants in favour of a bailiff.

[CleverClogs]

Re: Form 4 issues

It may help this forum to know that this case is more than familiar to me. I attended in person on several occasions and sat next to Mr Smith the Attorney General's advocate. The first thing I should say that on balance I do not agree with the judgment and that secondly it is disingenuous to presume HHJ Cryan to be 'bewigged berk'. HHJ Cryan was charming and considerate judge who displayed a great deal of patience throughout 12 days of this hearing which commenced in 2008 and was not disposed of until February 2011.

You are mistaken. I referred to the judge as a bewigged berk because

1. he wore a wig, and
2. I believe that he was a berk

It matters not one scrap how charming or considerate he might have been, any more than it would matter how cleanly shaved he was or whether he wore elegant cuff-links. The fact remains that he got it wrong and thus this topsy-turvy abuse of justice has been allowed to continue.

I believe that the process was originally intended to be far less formal than it currently is; the list of possible outcomes does rather suggest as much. It would also seem that the evidence was meant to be proved to the civil standard - on the balance of probabilities - than to the criminal standard.

When bailiffs (and, worse, bailiff companies) started to bring along barristers to Form 4 hearings (I refuse to elevate them to "proceedings") then it all went a bit pear-shaped. By insisting that the purpose of the hearing was to deny the bailiff his livelihood, the standard to proof was raised to the criminal standard. Of course, the hearing was not intended solely to determine whether or not a bailiff was fit to retain a certificate, as the list of outcomes demonstrates; moreover, the limit of compensation payable was limited to the bailiff's bond - £10,000 - which also suggests that the hearings were meant to be less serious than, say, a motor accident case. (A motorist either needs to be insured or to have deposited a surety of £1,000,000 with the Paymaster General of the Supreme Court.)

By traducing the purpose of the hearing into a simple guilty/not guilty dichotomy, the barristers helped the judges to award costs for "the defendant"; again, the list of possible outcomes shows that this is wrong, as one possible outcome is that the bailiff retains his certificate but compensation is ordered to be paid from the bailiff's bond.

In the end there were three complainants and two bailiffs whose defence was funded by Marstons and though HHJ Cryan made the point that complex cases require complex and potential expensive defences, he did not pick up on the fact that it was Marstons policy to send in a possee of barristers and solicitors on every Form 4 complaint with a view to having all complaints dismissed and making the complainants pay heavily before trumpeting this on their website in order to dissuade other potential complainants. This policy was explained on their website.

That, in itself, is clear evidence that the judge was a prize berk.

That it was "explained" on the Marston website as recently as this January - it now seems to have been removed - does rather seem to cast doubt upon the sincerity of some recent comments by their CEO, Gareth Hughes.

[Fair-Parking]

Re: Form 4 issues

Clearly I wasted my time giving a unique insight on this case which was exclusive to this forum.

[bizzybob]

Re: Form 4 issues

@ ClaverClogs, agreed the judge was a prize berk, he sniglehandely handed a licence to commit thuggery, fraud and deception with impunity to bailiffs by converting a hearing into fitness into adversarial litigation. Ever likely Marstons trumpeted it loudly on their website that to challenge their right to shaft people would cost them whatever they did.

[CleverClogs]

Re: Form 4 issues

Clearly I wasted my time giving a unique insight on this case which was exclusive to this forum.

Aww... :violin:

Had you not characterised my comment about the judge as "disingenuous", I doubt I would have posted as I did; you could have claimed I was mistaken, which would not have sought to impugn my sincerity.

Whilst your notes and impressions may be helpful, a copy of the judgement would be of far greater assistance.

[gravytrain]

Re: Form 4 issues

Clearly I wasted my time giving a unique insight on this case which was exclusive to this forum.

Not at all the post was most informative and greatly appreciated by many of the less vocal member on here, I can assure you.

[Milo]

Re: Form 4 issues

There is so much information on the thread concerning the Judgment and there can be no difficulty whatsoever in anyone obtaining a copy if they really wanted to.

The people who were involved did not continue with the Form 4 complaints and therefore, the court did not have to decide whether either of the 2 bailiffs had done anything wrong. Naming any of the parties on public forums without their permission is very unfair indeed.

I have just found this link on Google which is copy of the web page for the Barrister; Mr Jonathon Salmon from St Philips Chambers and you will see under the heading of Miscellaneous that he refers to this Judgment. He comments as follows:

"Bailiff certification (including acting in the leading test case on costs where the Attorney General acted as amicus to the Courts"

http://www.st-philips.com/web/FILES/Member_CVs/JonathanSalmon_cv.pdf