Form 4 issues

[bizzybob]

Re: Form 4 issues

Thanks for that FP, that shows where then system is cream crackered

[gravytrain]

Re: Form 4 issues

I suppose the problems arise when there are a different version of events(behavior etc), or interpretation of obscure case law, which I would think accounts for a large percentage of contested claims.

It would be difficult to arrive at a fair decision without examining both sides in a hearing.

Unfortunately the only sanction available is the removal of the bailiffs license which as said is draconian and the offence would have to be quite extreme for a court to think that it was justified.

So the court is not only making a decision about whether the bailiff has committed an offense of some kind, but in addition deciding if the scale of the breach exceeds a trigger point at which he looses his license, if it falls below this there is no sanction it seems. (at least under form 4).

so would there be a case where a debtor takes a bailiff to court (form 4)and wins or is proven to be right( minor over charge of fees etc.), but the scale of the offence was not considered enough for the license to be removed, and would such a case result in costs being awarded against the debtor ?

[bluebottle]

Re: Form 4 issues

Let's bear in mind that this judgment was over two years ago and yet in reality nothing much has changed. So much so that hardly anybody knew that it existed and people still bring Form 4 complaints. The problem now is what it was back in the period 2009 - 2011 when I was involved in this case, which is that most people do not have a clear idea of what it is they wish to achieve when taking out a Form 4 complaint. There should be only one reason and that it is the bailiff is not a 'fit and proper person'. What it should not be about is seeking compensation or taking revenge.

In this case, I came on to the scene about one year after the complaints had been lodged and immediately advised all three that they should withdraw because what they all wanted was compensation for lost vehicles and lost income due to having their businesses interrupted. They only ever embarked on the Form 4 complaint because they did not know of any other way of achieving that objective. What they didn't know back then is that their objectives would have been better served by issuing proceedings against the local authorities concerned in the small claims court. When the judgment was announced all three knew by then that there was a better course of action which two of them have embarked upon. This case rattled on for 12 days in court and it drained them all.

Many people seem to think that a Form 4 complaint is simple and will take a few hours in court. What they don't expect is to be confronted by a possee of barristers, solicitors and company officials who are happy to have adjournments as it racks up costs. This expensive confrontation would never happen in the small claims court.

In reality there is very little to be gained by a Form 4 complaint where an upper limit of £10,000 is set to coincide with a lodged bond. What these bailiffs did wrong which in the main was to arrive without warrants, seize cars at an unearthly hour and charge excessive fees is an everyday occurence which can be equally be put down to what the bailiffs were trained to do by their employers. It is a thin line.

Whilst a monetary claim against the local authorities concerned is easily identifiable, a claim against the bailiffs for obeying orders is far more grey. The total amount of this claim would have exceeded £30,000 and the bonds combined would not have covered that figure. No real guarantee of success against the bailiffs but every chance for success against the local authorities who never even prepared any warrants. Can't blame a bailiff for not having a warrant which never existed, but which the local authorities and their employers would have assured them would be perfectly OK. Does that make the bailiffs unfit to hold certificate? Your call, but would you then pursue it at the risk of costs?

It is also a sobering thought that the insurance company which underwrites bailiff bonds has yet to pay any claim. The premium is a mere £210 for two years cover

Any certificated bailiff who is stupid enough to attempt to levy on or seize goods without a valid warrant or LO either needs a brain transplant or a damned good explanation. An increasing number of frontline police officers appear to be getting wise to the shenanigans of certificated bailiffs.

[bluebottle]

Re: Form 4 issues

I suppose the problems arise when there are a different version of events(behavior etc), or interpretation of obscure case law, which I would think accounts for a large percentage of contested claims.

It would be difficult to arrive at a fair decision without examining both sides in a hearing.

Unfortunately the only sanction available is the removal of the bailiffs license which as said is draconian and the offence would have to be quite extreme for a court to think that it was justified.

So the court is not only making a decision about whether the bailiff has committed an offense of some kind, but in addition deciding if the scale of the breach exceeds a trigger point at which he looses his license, if it falls below this there is no sanction it seems. (at least under form 4).

so would there be a case where a debtor takes a bailiff to court (form 4)and wins or is proven to be right( minor over charge of fees etc.), but the scale of the offence was not considered enough for the license to be removed, and would such a case result in costs being awarded against the debtor ?

If a certificated bailiff was convicted of an act of criminal dishonesty or violence, not necessarily in the course of or in connection with their employment as a bailiff, that would, IMHO, bring into question their fitness to act as a bailiff. Is it not a requirement that anyone acting as bailiff or seeking to act as a bailiff should be of good character? A conviction for dishonesty or violence isn't exactly the sign of someone of good character, is it?

[Fair-Parking]

Re: Form 4 issues

Just a quick response to Bluebottle. - I am sorry to say that as unbelievable as it seems I have never come across any instance where a bailiff has ever had a valid warrant with him.

With regard to whether a bailiff is a fit and proper person I extract some of the final paragraphs of my submission. The only addition is to advise the reader that the reference to 'warring parties' was one used by Jonathon Salmon in his argument

The Conclusion

70) I have therefore naturally arrived at the conclusion that costs should not become an issue in a Form 4 complaint and this is further supported by a major omission in Mr Salmon’s submissions. In his fight to justify costs if a complaint is not upheld, Mr Salmon never once mentioned the real purpose of a Form 4 complaint. It is not, as he seemed to exude, a route to dismiss the complaint and then to seek costs for his clients, but an opportunity for a Judge to assess whether the bailiff is a fit and proper person to hold a certificate.

71) It is this failure to understand that establishing whether a bailiff is a fit and proper person to hold a certificate that lies at the heart of a quest for costs. Mr Salmon has based his whole argument on being successful in having a complaint dismissed rather than on the merits as to whether the bailiff is a fit and proper person to hold a certificate.

72) A Judge’s decision does not need to rest solely on the strength and justification of the complaint, as he may feel that the complaint itself isn’t fully justified, but still may conclude through the weight of evidence before him or perhaps due to the bailiff’s demeanour and attitude, that the bailiff is not a fit and proper person to hold a certificate.

73) Even if the bailiff was a very nice and pleasant person who was only doing a job as he saw it and whose actions were therefore understandable, he could still be judged unfit to hold a certificate if his knowledge of the law(s) is lacking in the same way a nice person can fail a driving test if they do not know the Highway Code or the rules of the road.

74) Thus being a fit and proper person to hold a bailiff’s certificate does not rely solely on whether a complaint against him is proven or otherwise or the fact that a complaint isn’t always justified. It is dependant on whether a Judge is satisfied or otherwise to the fitness of bailiff to hold a certificate and that requires him to have a solid working knowledge of those laws which govern a bailiff’s behaviour and actions. The failure of a person to prove their complaint alone should never be a reason for ordering costs against a complainant in any circumstances.

75) I mentioned my concern that a Form 4 complaint was an invitation to some in the legal profession including courts and even judges, to treat the matter as litigation and that Mr Salmon’s submission concentrated on that adversarial method to the exclusion of realising that a Form 4 complaint does not invite a platform for ‘warring parties’ to argue over the merits of a complaint. I believe that a Form 4 complaint is a pathway for a Judge to determine a bailiff’s fitness to hold a certificate. That this ultimate objective was missing from Mr Salmon’s submissions is rather important.

[bizzybob]

Re: Form 4 issues

Just a quick response to Bluebottle. - I am sorry to say that as unbelievable as it seems I have never come across any instance where a bailiff has ever had a valid warrant with him.

With regard to whether a bailiff is a fit and proper person I extract some of the final paragraphs of my submission. The only addition is to advise the reader that the reference to 'warring parties' was one used by Jonathon Salmon in his argument

The Conclusion

70) I have therefore naturally arrived at the conclusion that costs should not become an issue in a Form 4 complaint and this is further supported by a major omission in Mr Salmon’s submissions. In his fight to justify costs if a complaint is not upheld, Mr Salmon never once mentioned the real purpose of a Form 4 complaint. It is not, as he seemed to exude, a route to dismiss the complaint and then to seek costs for his clients, but an opportunity for a Judge to assess whether the bailiff is a fit and proper person to hold a certificate.

71) It is this failure to understand that establishing whether a bailiff is a fit and proper person to hold a certificate that lies at the heart of a quest for costs. Mr Salmon has based his whole argument on being successful in having a complaint dismissed rather than on the merits as to whether the bailiff is a fit and proper person to hold a certificate.

72) A Judge’s decision does not need to rest solely on the strength and justification of the complaint, as he may feel that the complaint itself isn’t fully justified, but still may conclude through the weight of evidence before him or perhaps due to the bailiff’s demeanour and attitude, that the bailiff is not a fit and proper person to hold a certificate.

73) Even if the bailiff was a very nice and pleasant person who was only doing a job as he saw it and whose actions were therefore understandable, he could still be judged unfit to hold a certificate if his knowledge of the law(s) is lacking in the same way a nice person can fail a driving test if they do not know the Highway Code or the rules of the road.

74) Thus being a fit and proper person to hold a bailiff’s certificate does not rely solely on whether a complaint against him is proven or otherwise or the fact that a complaint isn’t always justified. It is dependant on whether a Judge is satisfied or otherwise to the fitness of bailiff to hold a certificate and that requires him to have a solid working knowledge of those laws which govern a bailiff’s behaviour and actions. The failure of a person to prove their complaint alone should never be a reason for ordering costs against a complainant in any circumstances.

75) I mentioned my concern that a Form 4 complaint was an invitation to some in the legal profession including courts and even judges, to treat the matter as litigation and that Mr Salmon’s submission concentrated on that adversarial method to the exclusion of realising that a Form 4 complaint does not invite a platform for ‘warring parties’ to argue over the merits of a complaint. I believe that a Form 4 complaint is a pathway for a Judge to determine a bailiff’s fitness to hold a certificate. That this ultimate objective was missing from Mr Salmon’s submissions is rather important.

The fact that your submission was disregarded and a Form 4 perverted into litigation by caselaw, and court systems is abhorrent. Bailiffs need a firm collar and leash preferably on a choke chain to pull them back when they act unlawfully and ultra vires, sadly Form 4 now is of no real assistance, unless one has extremely deep pockets, and bailiffs will keep on with their thuggery with no let or hindrance.

[bluebottle]

Re: Form 4 issues

A letter to the District Judge at the court that has issued an errant bailiff's certificate can be very effective, especially if the letter is accompanied by relevant evidence. It resulted in a bailiff losing their certificate last year, without a Form 4 and without a hearing.

[bizzybob]

Re: Form 4 issues

A letter to the District Judge at the court that has issued an errant bailiff's certificate can be very effective, especially if the letter is accompanied by relevant evidence. It resulted in a bailiff losing their certificate last year, without a Form 4 and without a hearing.

It is quite possible a clued up judge will do this due to the costs issue as decided by Judge Cryan, and they consider a Form 4 may give the bailiff a chance to frighten the complainant off with horror stories of unaffordable legal costs, and maybe even bailiff action to collect them....

[bluebottle]

Re: Form 4 issues

It is quite possible a clued up judge will do this due to the costs issue as decided by Judge Cryan, and they consider a Form 4 may give the bailiff a chance to frighten the complainant off with horror stories of unaffordable legal costs, and maybe even bailiff action to collect them....

In the case I have highlighted, bb, the evidence accompanying the letter included written statements from eye-witnesses, video footage and a police report. I suspect that the DJ at the court that issued the bailiff's certificate, after looking at the evidence presented to them, decided that the bailiff's conduct was such that it went far beyond what could be covered within a Form 4 hearing, indeed, at times, it bordered on criminal conduct, including lying to the police they were a court bailiff when, in fact, they were only a certificated bailiff, and based their decision to revoke the certificate using Civil Procedures Rules powers to make a decision on the court's own initiative and to dispose of the case without a hearing.

[bizzybob]

Re: Form 4 issues

In the case I have highlighted, bb, the evidence accompanying the letter included written statements from eye-witnesses, video footage and a police report. I suspect that the DJ at the court that issued the bailiff's certificate, after looking at the evidence presented to them, decided that the bailiff's conduct was such that it went far beyond what could be covered within a Form 4 hearing, indeed, at times, it bordered on criminal conduct, including lying to the police they were a court bailiff when, in fact, they were only a certificated bailiff, and based their decision to revoke the certificate using Civil Procedures Rules powers to make a decision on the court's own initiative and to dispose of the case without a hearing.

In that case the advice to write an initial letter to the DJ ant the certificating court should be the first action before considering Form 4 which has been deflected from it's purpose into adversarial litigation from a complaint system.

[ploddertom]

Re: Form 4 issues

For anyone following this the following should now be looked at:

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

[Celestine]

Re: Form 4 issues

For anyone following this the following should now be looked at:

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

Well that sure clears up a few questions huh?

[bizzybob]

Re: Form 4 issues

Well that sure clears up a few questions huh?

That just about wraps it up for any meaningful check and balance. Looks like bluebottle's advice to send a letter to the DJ at the bailiffs certifying court, and complaints about the Company to OFT etc, is the only way, Form 4 having been perverted into Quasi litigation by bailiffs their briefs and compliant judges.

[gravytrain]

Re: Form 4 issues

Certainly nice to see the documentary evidence to confirm what some of have been saying from day one.

Perhaps now that the illusion of the effectiveness of the form 4 process has been exposed, the huge gap that exists in the regulation of bailiffs will be more apparent, and prompt the implementation of more effective measures.

[bizzybob]

Re: Form 4 issues

Certainly nice to see the documentary evidence to confirm what some of have been saying from day one.

Perhaps now that the illusion of the effectiveness of the form 4 process has been exposed, the huge gap that exists in the regulation of bailiffs will be more apparent, and prompt the implementation of more effective measures.

Agree with you 200 +% GT, but the system likes enforcement and want money at all costs, even to the extreme of a bailiff hounding a debtor even unto death, for that TV Licence fine, it is a debt to the state they say so must be collected whatever the method. If a marstons bailiff like Madame Boswell kills a debtor or causes their death by them suffering a heart attack or stroke on the doorstep HMCS have plausible deniability they think, as mastons are a contractor. they forget that vicarious, and joint and several liability applies to them, as Crown Immunity no longer applies. DWP have found that out to their cost.

Something needs doing, Lord Denning saw Distress as a remedy as outdated in the last century.

Now that it seems to have been perverted into litigation by crappy court IT, and compliant judges Form 4 is as much use as a chocolate fireguard.