Form 4 Complaint struck out. Judge states complainant was "economical with thruth"

[Milo]

Form 4 Complaint struck out. Judge states that complainant was "economical with the full truth"

There is a legal procedure available to members of the public whereby a Judge can cancel a bailiffs certificate if he is satisfied that the bailiff is “not a fit and proper person to hold a bailiff certificate"

The procedure is initiated by filing a Form 4 Complaint and details can be found in the “Sticky” section.

In considering whether to deprive a bailiff of his livelihood the Judge will need to be satisfied that the bailiff has done something very serious indeed and, as has been made very clear on this "stick" section of this forum (and indeed by way of evidence) a “Form 4 Compliant” is referred to a “litigation” and the court may...and indeed in some cases do.....order the complainant to pay costs to the bailiff in cases where the Form 4 complaint was not justified.

I have repeatedly stated on this forum that there is a risk of the court ordering costs to be awarded in favour of the bailiff and it is for this reason that such (Form 4) complaints should only ever be made in very serious cases.

This week I received a copy of the Judge’s decision for dismissing a recent Form 4 Complaint. One copy ( of the decision) came to me from a local authority and another from a bailiff company (who were not in any way connected with the complaint).

Unfortunately, both copies have the name of the complainant, the name of the bailiff, the vehicle registration number and details of the bailiff company. I am not good with computers and cannot "blank" out such details for this reason in order to preserve confidentiality I have accurately re typed a copy of the Judge’s decision which I will post in a few moments time.

[Milo]

Re: Form 4 Complaint struck out. Judge states complainant was "economical with thruth

PS: I will be referring to the complainant as "Mr Smith" and the bailiff as "Mr Bailiff"

[Milo]

Re: Form 4 Complaint struck out. Judge states complainant was "economical with thruth


BAILIFF COMPLAINT


Reference No. 4 of 2013

Mr Smith has complained in Form 4 dated 22nd April 2013 of the conduct of the certificated bailiff who was attempting to enforce a debt, specified as Council Tax owed to Chesterfield Borough Council.


The bailiff has replied personally to the complainant in writing by letter dated 16th May 2013


Decision:

The complaint about this bailiff relates essentially to the events of 27th February and 20th March 2013

On the earlier date, the bailiff attended at Mr Smith’s home address in Chesterfield and left a Notice stating the amount due as “£465.40 plus costs” and giving contact details. Mr Smith says that in fact the bailiff spoke to his sister that day (and appears to complain of breach of confidentiality thereby). He also complains that the costs should there and then have been specified at £24.50 under the relevant Regulations. He paid the £465 on 2nd March 2013.

On a later date a notice of distress was left at the address asserting levy of distress on a vehicle, a Land Rover Freelander registration number XX XXX there being stated at be £24.50 outstanding (ie the “costs” from the previous visit). Additional fees of £70 were added.

Mr Smith says that he does not own (and by implication is not the keeper of) any such vehicle, that no such vehicle was at the property and that the levy was fictitious and the fees dishonestly claimed. Mr Smith says that he has “taken legal advice” and cites some authorities. It is not clear whether he had face-to-face advice from a solicitor or C.A.B or whether he has simply done internet research. If the latter he should not assume that his information is correct and nor should he assume that the court is aware of the matters he relies upon. If there were to be a hearing, he would be required to bring copies of those authorities and he or his legal representative would be expected to assist the court with the law.

The complaint relating to the alledged fictitious levy and dishonest fee charge is more serious and, if substantiated would indeed justify the court considering cancellation of the bailiff’s certificate.

The complaint is denied.

The bailiff says that he did visit three times and that he spoke with no-one on 27th February 2013 but that he spoke with Mr Smith’s sister on 6th March 2013. There is accordingly, a dispute about when the earlier events occurred and about what happened. However, the recording of his sisters’ call to him and of the conversation with the bailiff at a later date are unlikely to be of assistance.

The bailiff agrees that he decided to levy on the vehicle, which he says was present on the street near to, but not outside, the house believing it to be Mr Smith’s. In fact it is said that the vehicle belonged to his sister. The bailiff had earlier seen it driven by her which enabled the link to be made. It is not a “random” vehicle nor a non- existent one. Given what the bailiff does not dispute the alleged content of the CCTV (and I have seen the stills) it takes the matter no further. The levy has since been removed on proof of the fact of the sister’s ownership.

On the evidence, there was not a “fictitious” levy as Mr Smith alleges (i.e. no vehicle at all ) but rather erroneous (but not illegal or irregular) levy on a vehicle that the bailiff believed to belong to Mr Smith.

It is right to note that the bailiff does not refer to any checks being made with DVLA or HPI. For this he might at worst justly be admonished, but not deprived of his certificate. A hearing would in these circumstances not be proportionate within the meaning of rule 1.1 (1) of theCivil Procedure Rules. The fact that the vehicle existed and belonged to his sister (the same sister with whom that bailiff is said to have conversed at thehouse earlier) is nowhere stated in the complaint, which is in my judgment actively misleading in that respect. Nowhere does Mr Smith say that “there is such a vehicle but it is my sister’s” or words to that effect.

It sits ill with the allegation of dishonesty on the part of the bailiff that Mr Smith chose to be economical with the full truth of the matter. I wonder if he gave the full and accurate account to the person who gave him legal advice. If not, it might explain why he was advised to complain and to rely upon the cited 19th century cases.

The bailiff’s employers (xxx) have removed the levy and, of course cancelled the levy fee. The bailiff admits a miscalculation which has resulted also in a refund of £52.50 to Mr Smith. The complainant has accordingly, had adequate satisfaction.

I am satisfied by the bailiff’s reply and explanation. Having regard to the provisions of rule 8(2) of the Distress for Rent Rules1988. I am not “unsatisfied as to the bailiff’s fitness to hold a certificate”. There is accordingly, no need for a hearing of this complaint. No further action is required.

If I had thought that the complaint required a hearing I would have required Mr Smith to disclose his recordings and film in advance of the hearing, not at the hearing, with a full and accurate transcript of the recordings and would have expected him and his sister to attend court to substantiate their allegations on oath or affirmation. There would have been no possibility of considering deprivation of livelihood without sworn/affirmed evidence.

If the complaint had not been determined until that stage, Mr Smith would have been at risk of an adverse costs order, possibly far in excess of the original debt.

Although the Form 4 procedure involves no issue fee, complainants are often unaware of the court’s power to order costs in the bailiff’s favour against the complainant if a complaint is not upheld after a full hearing. In my experience such costs generally exceed £1,000 (and in one recent case at Southampton county court were £10,000). Determination of the complaint on paper where possible is in the complainant's interest because there is no question of an adverse costs order on such disposal


His Honour Judge Butler



Designated Civil Judge for Cumbria and Lancashire



Dated 24th May 2013

[Milo]

Re: Form 4 Complaint struck out. Judge states complainant was "economical with thruth

There is a lot more further information about this case which can be read by way of the following link:

http://www.consumeractiongroup.co.uk...-Viewing)-nbsp

[labman]

Re: Form 4 Complaint struck out. Judge states complainant was "economical with thruth

Good to see the whole thing as opposed to my synopsis yesterday - thanks Milo.

[russelldash]

Re: Form 4 Complaint struck out. Judge states complainant was "economical with thruth

at court my solicitor read a section that sates a bailiff can not claim costs as this will deter others from making such a complaint in my case the person who made the complaint was a 12 year old girl it goes on to say you don't have to appear at court but this girl was ordered to do so and had 2 authorised absents from her Head teacher too do so

[ploddertom]

Re: Form 4 Complaint struck out. Judge states complainant was "economical with thruth

russelldash - a bit of advice, don't keep posting all over the place as at worst you may get accused of spamming the Forum, the penalty being banned for doing so. Stick to your own thread.

[russelldash]

Re: Form 4 Complaint struck out. Judge states complainant was "economical with thruth

sorry I did not know I was doing anything wrong I have not said any thing that is not true and have been in the court when documents and procedure rules were read when I see my solicitor tomorrow I will ask her where it is written that a bailiff can not claim expenses in a form 4 complaint
sorry again thought my post was relevant

[ploddertom]

Re: Form 4 Complaint struck out. Judge states complainant was "economical with thruth

It's not that it isn't relevant but for instance the last post on this thread was June last year. Your initial posts have been very confusing to say the least as the information you have provided has been disjointed. Part of the reasoning behind Barristers for Form 4 Complaints is that at the end of the day it could be that the Bailiff loses his livelihood and the Barrister is employed to do his best for him. In the past there have been a good few cases where costs have been awarded against the complainant because to put it bluntly some claims have been frivolous.

[russelldash]

Re: Form 4 Complaint struck out. Judge states complainant was "economical with thruth

I can relate too this that is why in theory the complaint not need to attend the court and it is for the judge to decide in the first instance if the 1st response to the complaint by the bailiff is excepted if not then a court hearing is listed so the judge at this point has a choice

sorry about responding to old posts but the pop up on new posts don't no why but it is hard to find your way round this site but am learning