Costs Judgments in Form 4 complaints

[Amethyst]

Attached files for reference (hope no one minds)

Just wondering if there is any background information on these specific cases - eg. the original complaint made and/or judgment.

I presume these cases are from persons entering a form 4 complaint against a bailiff - to what end? Refund of the fees or simply dismissal of the bailiff ?

How does it differ applying for a 'detailed costs assessment' vs making an N1 county court claim for refund of bailiff fees - and are there any judgments off the back of N1 claims ?


(Please don't bring up other sites I'm purely interested from an evidential point of view to help people on LB that have suffered poor treatment at the hands of bailiffs who may wish to bring a form 4 complaint, or who have been legitimately been overcharged fees )

• form4-1.pdf (1.20 MB, 0 views)
• form4-2.pdf (1.67 MB, 0 views)
• form4-3.pdf (432.6 KB, 0 views)

[pepsie]

Re: Costs Judgments in Form 4 complaints

Hi Amethyst

I can well appreciate your need to get to the bottom of that never ending suggestion 'costs' are not awarded at 4 form hearings. I do know the background to these BUT there is only one person that can be trusted to give a clear reply and that is Milo.

Pepsie

[Guest]

Re: Costs Judgments in Form 4 complaints

My personal view on this, is that unless there are exceptional circumstances, the N1 route is a far safer option. Particularly if the damages involved fall below the small claims threshold. If the claimant still feels that the bailiff has behaved in a way that should result in him loosing his license, the judgement can I believe be used in evidence in a form 4 action

[Amethyst]

Re: Costs Judgments in Form 4 complaints

Judge Butler

[Milo]

Re: Costs Judgments in Form 4 complaints

It would be easier for me and very likely other people viewing this thread if I were to provide a separate post in relation to EACH of the Form 4 decisions that you have exhibited. I hope that this is ok.

Let me first explain that Form 4 Complaints are extremely serious applications and accordingly, anyone considering making a Form 4 Complaint should only ever do so in the most exceptional of circumstances. The reason being that when making such an application the purpose is to request that the District Judge makes an order that the bailiff is not a "fit an proper person" to hold a bailiff certificate. That is the only criteria.

If the Judge makes such a finding he will know that he will be depriving the bailiff of his means or earning a living and this is why such orders will only be made in the most exceptional of cases.

With so much information now appearing on the internet, there are endless websites that encourage debtors to file a Form 4 Complaints ( with some sites even offering to draft a Form 4 for the debtor and charging a fee for the service.

Hopefully from the small examples on this tread it will hopefully enable debtors to understand when a Form 4 Application should not be made.

Significantly, these examples should also demonstrate that where Judge's consider that the File 4 Complaint is not the correct course of action that he can indeed order the person filing the complaint to be responsible for paying the bailiff's legal costs !!

[Milo]

Re: Costs Judgments in Form 4 complaints



Deputy District Allen's Judgment and Costs of Detailed Assessment.


This particular decision highlights the problems that can arise if a debtor were to use a Form 4 Complaint for the wrong reason.

The case was initially heard in June 2011 before His Honour Judge Blunsdon in June 2011 and it is related to a dispute regarding the bailiff fees, he ordered that the correct venue for such disputes was by way of Detailed Assessment.

The Detailed Assessment of the fees was heard before Deputy District Judge Allen in November 2011 and she ordered that the fees recoverable by the bailiff should be £32.90 for a visit/levy and for "attending to remove" the fee should be £104.50

As you will see, what started out as a Form 4 complaint was effectively "turned around" by the initial Judge and turned into an application for Detailed Assessment.

Sadly, Deputy District Judge allen order the person making filing the Form 4 to pay costs of £1,200 and ordered that this sum had to be paid within 2 weeks of the date of Judgment.

[Milo]

Re: Costs Judgments in Form 4 complaints



His Honour Judge Bray and Form 4 Complaint.


This Judgment relates to a Form 4 Complaint against a bailiff from Newlyn Plc.

I do not know the basis of the Form 4 complaint suffice to say, that His Honour Judge Bray dismissed the complaint at Northampton County Court on 23rd February 2010 and he also ordered that the complainants; Mr Dean Mc Guiness and Mr Spencer Mc Guiness should be jointly and severally liable to pay the legal costs of the bailiff in defending the Form 4 Complaint and that the sum of £5,000 had to be paid by them within just 3 weeks of the Form 4 hearing.

[Milo]

Re: Costs Judgments in Form 4 complaints



His Honour Judge Welchman and Form 4 Complaint


Once again, I do not know the basis of this Form 4 Complaint. From reading the Judgment it is confirmed that both the complainant and the bailiff attended the hearing before His Honour Judge Welchman in November 2012 at Wandsworth County Court.

The Form 4 Complaint was dismissed and His Honour Judge ordered the complainant to pay the bailiffs costs of £1,655.00

[CleverClogs]

Re: Costs Judgments in Form 4 complaints

Let me first explain that Form 4 Complaints are extremely serious applications and accordingly, anyone considering making a Form 4 Complaint should only ever do so in the most exceptional of circumstances. The reason being that when making such an application the purpose is to request that the District Judge makes an order that the bailiff is not a "fit an proper person" to hold a bailiff certificate. That is the only criteria.

If the Judge makes such a finding he will know that he will be depriving the bailiff of his means or earning a living and this is why such orders will only be made in the most exceptional of cases.

I believe that you may be mistaken, as the original purpose of "Form 4 Complaints" was much less draconian. More properly termed a complaint made under article 8 (link) of the Distress for Rent Rules 1988, section 9 (link) sets out sanctions that may not necessarily result in the ba:censored:rd bailiff losing his livelihood.

It is a common enough mistake to make, as that is the rationalisation used by bailiffs and their bully-boy employers to turn up with a posse of lawyers.

Unfortunately, most judges seem to accept such nonsense as truth.

[Amethyst]

Re: Costs Judgments in Form 4 complaints

Thank you Milo - very clear and succinct explanations. May I use your posts to create a closed sticky thread reserved it for further judgments in the same subject area so this acts as an accessible resource to potential complainants? I'll keep this thread open for sensible discussion of course.

[Milo]

Re: Costs Judgments in Form 4 complaints

Judge Butler

This particular Judgment is very serious indeed.

Firstly, the contents of the Judgment are vitally important but as can be seen, all 3 pages are copied from a particular website.

It is sadly the case that the website in question have continually claimed that it is a "myth" that Courts have ever ordered claimants to pay costs if a Form 4 Complaint is dismissed.

From reading the final paragraph on Page 2 and the small paragraph on Page 3 it is very clear that His Honour Judge Butler is confirming that costs have indeed been ordered and, as an example he confirm that in one "recent case" at Southampton County Court a cost order of £10,000 had been ordered against the person making the Form 4 complaint.

The Form 4 Complaint for Mr Kirk (the complainant) had been drafted by the website in question and this was confirmed on the thread started by Mr Kirk. It is significant to note that within a few hours of Mr Kirk displaying this damning judgment on the website in question on 29th May 2013 that the entire thread was removed from public view.

This Judgment needs to be available to the public and there are many reason for this:

Mr Kirk had initially posted a query on Consumer Action Group and he advised in no uncertain terms that he should not consider a Form 4 complaint and in particular, given that the amount in dispute was just £20!!

The brief background is that the bailiff levied upon a vehicle owned by Mr Kirk's sister and that he charged a fee of £24.50, £18.00 and a "levy fee" of "28.00 There was also a small additional amount of £26.00 which apparently related to a shortfall against a previous account.

Mr Kirk complained to Rossendales about the levy and they removed the levy fee and visit fee and credited the account with the sum of £50.

The debtor was not happy to be told on CAG that he had no grounds to file a Form 4. Subsequently, he sought advice from another forum and from reading a copy of the PDF of his thread it would seem that he was encouraged to file a Form 4 Complaint.

Before the website had removed the thread on 29th May 2013 a copy of Mr Kirk's Form 4 had been displayed. Sadly, it referred to at lest 14 legal cases most of which was irrelevant and "19th century case law".

As a warning to anyone else who may quote such case law in a Form 4 complaint, it is noteworthy that His Honour Judge Butler confirmed that if he had felt it necessary to list the Form 4 for a hearing that he would have required the complainant to bring to the court copies of the legal cases referred to in the Form 4 and most seriously he would have requested that the complaint or "his legal adviser" would have been required to explain to the Judge the relevance of such legal cases !!

Finally, in paragraph 6 His Honour Judge refers to Mr Kirk's comment that he had "taken legal advice" and he questions whether such "advice" had come from "face to face" advice from a solicitor or CAB or alternatively whether the "legal advice" had originated from "internet research" and stated that "if from the latter he should not assume that this information is correct and nor should he assume that the court is aware of the matters he relies upon ( in this he refers to the "19th century legal cases").

[labman]

Re: Costs Judgments in Form 4 complaints

I think it also worth mentioning that we have reached the current situation with Form 4 complaints for a reason. Originally costs would not have been awarded in these complaints, but they were abused and used far too often as a free means of getting back at the bailiff companies. Unsurprisingly, the bailiff companies got wise to this and started defending themselves and applying for costs for doing so.

This is why as a site, certainly while I've been involved in helping out in the bailiff area, we have only ever recommended Form 4 complaints against two bailiffs, neither of whom are in the 'profession' anymore.

Refunds of bailiff fees are often achieveable without going to court. One needs to go about it the right way. If one is seeking damages, then obviously court proceedings are usually the way to go. Having said that, I got damages paid jointly and severally by the council and bailiffs around three years after bailiff action was taken against me - how they would have compared to a court judgment I don't know, but from what I've seen of damages awarded to others, I think I did well.

[bluebottle]

Re: Costs Judgments in Form 4 complaints

However, do not forget that a bailiff can have their certificate revoked without a Form 4 being submitted or a hearing, thanks to the Civil Procedures Rules 1998 allowing a court to make a decision of its own initiative and to dispose of a case without a hearing

This happened in a case that occurred in Hampshire, in 2012. The complainant sent a detailed letter, accompanied by video evidence, written statements from neighbours and a copy of the police report on the incident to Bournemouth and Poole County Court. Expecting to receive a letter requesting a Form 4 complaint to be submitted, the complainant was surprised to receive a letter from the Court Manager, two weeks' later, advising that the bailiff's certificate had been discharged (cancelled).

It is not unreasonable to deduce that, if on examining a letter and accompanying evidence, a judge considers a bailiff's conduct to be such that it raises serious questions as to a bailiff's fitness to hold a bailiff certificate and is sufficiently serious enough to warrant discharge of a bailiff's certificate, a judge may use the powers provided under the Civil Procedures Rules 1998 and discharge bailiff's certificate without inviting a completed Form 4 or convening a hearing.

[labman]

Re: Costs Judgments in Form 4 complaints

section 9 (link) sets out sanctions that may not necessarily result in the bailiff losing his livelihood.

It might be worth pointing out that where this section mentions:

(1) Following the hearing of any complaint under rule 8 the Judge may, whether he cancels the certificate or not, order that the security shall be forfeited either wholly or in part, and that the amount or amounts directed to be forfeited shall be paid to any complainant by way of compensation for failure in due performance of the bailiff ’s duties, costs or expenses or, where costs, fees and expenses have been incurred by the court, to Her Majesty’s Paymaster General.

(2) Where an order for the forfeiture of the security, either wholly or in part, is made but the certificate is not cancelled, the Judge may direct that fresh security under rule 6 shall be provided.


the security in question is a bond to the sum of £10000. To anyone, bearing in mind what section 2 states, if the bond is forfeited even to a significant part, making fresh security is likely to be a real issue for most people. Thus, even though the certificate is not cancelled, they cannot practice without the security in place (or that is my understanding), so they may well face severe problems continuing as a bailiff anyway.

[Guest]

Re: Costs Judgments in Form 4 complaints

I thank that this is the central part of the procedure. Once the complaint is made the judge requests an explanation from the bailiff, then if the judge is not satisfied he is summoned to: "show cause why his certificate should not be cancelled.

"(3) If the bailiff fails to deliver the reply within the time specified, or if upon reading the reply the Judge is unsatisfied as to the bailiff’s fitness to hold a certificate, the proper officer shall issue a notice summoning the bailiff to appear before the Judge on a specified date and show cause why his certificate should not be cancelled."

It is pretty clear from this that the bailiff is on the back foot and his livelihood is being threatened, you can hardly blame him from wanting to take all the legal advice he can.

The issue, was if costs can be made against the claimant as there is no facility for them in the legislation. The court found that there was under Court rules because the action met the criteria for "proceedings", and the claimant of " party" to the claim.

So there we are costs can be and are awarded to people who use this method of complaint, there can be no argument..