Can a bailiff levy on a vehicle, and then remove it, instantly? Council tax.

[TVJonesClassic]

I may have confused my first thread by posing other questions and it's getting a bit clogged, so I hope it's OK to start other threads with specific questions.

My question is, can a bailiff levy on a vehicle, and then remove or threaten to remove it, i.e. have a tow truck actually in attendance, within the space of a few minutes? I had heard there should be "an interval", but can't find the reference now, and thanks to teaboy2 (tb2, you've got mail) who mentioned this in my first thread. I'm submitting a request to the council tomorrow for them to get the debt back from the bailiff on the grounds of various illegal actions and charges so I'm trying to get clarification on this. Thanks.

[bluebottle]

Re: Can a bailiff levy on a vehicle, and then remove it, instantly? Council tax.

Only if the bailiff has a right in law to do so. The key words are "right in law". These three words are guaranteed to stuff a bailiff, if they cannot prove they have a right in law to do something. In short, it has the potential to bring the legality of their actions into question.

The council is vicariously-liable for the bailiff's actions and the onus also falls on them to prove they and the bailiff had a right in law to do what they did. Claiming they did have a right in law is not enough. They have to prove this and provide evidence showing where they draw their right in law from. Where distress is concerned, there can, sometimes, be a very fine dividing line between legitimate distress and Blackmail.

[TVJonesClassic]

Re: Can a bailiff levy on a vehicle, and then remove it, instantly? Council tax.

Sorry, I don't know if I understand. For example if the Form F7 contained excessive charges would that remove the right?

[bluebottle]

Re: Can a bailiff levy on a vehicle, and then remove it, instantly? Council tax.

In certain circumstances, a bailiff can levy and remove on the same day. However, there appears to be a general principle that pervades that requires that a debtor be given a reasonable opportunity to pay. In the case of a levy arising out of distress, this time-period will normally be 5-7 calendar days from the date of levy. It would depend on whether the bailiff had previously attended with the intention of levying on goods. If it was their first visit and they arrived with a tow truck, it could be argued that their actions were highly questionable, if not suspect. Any fees being demanded by a bailiff are always open to scrutiny and, at the end of the day, it is the bailiff who has to prove that all fees demanded are permitted under relevant legislation and have been lawfully incurred. If not, the bailiff can whistle for their fees or be forced to repay those fees they cannot prove are permitted by legislation or have been lawfully incurred.

From the scenario you describe, both the bailiff's actions and the sudden appearance of the tow truck are highly suspect. The council is vicariously-liable for the actions of the bailiff.

[TVJonesClassic]

Re: Can a bailiff levy on a vehicle, and then remove it, instantly? Council tax.

Thanks very much, that clears it up. I suppose it was a grey area in that they had been previously while I was out, but that visit was for the first liability order, not the second LO which they levied the car under. Probably not much mileage in complaining about it then. I was hoping it would be a set-in-stone requirement for a definite time between levy and removal.

OK folks, nothing to see here, move along...

[bluebottle]

Re: Can a bailiff levy on a vehicle, and then remove it, instantly? Council tax.

A bailiff cannot levy twice on the same goods. Additionally, a bailiff cannot levy on goods that have already been levied on by another bailiff. In the scenario you describe, if the bailiff was enforcing the first LO, his actions would, in all probability, be within the law, but, I suspect, questions would still linger as to the way he went about it. If it was for the second LO, he would be on a sticky wicket from the outset. However, the fees do need to be scrutinised and, if necessary, the bailiff put to strict proof.

[Sparkie1723]

Re: Can a bailiff levy on a vehicle, and then remove it, instantly? Council tax.

Bluebottle knows more than me on stuff like this .....but I thought that the Bailiff had to have absolute evidence that the vehicle belonged to you ..eg. not subject to an HP or pother finance ...........also just because the log book is in a persons name ....does not mean you are the legal owner.....you are the registered keeper....if you parents or some one bought it .....they are the legal owners.

Just Sparkie meandering again.:tinysmile_twink_t2:

Sparkie

[bizzybob]

Re: Can a bailiff levy on a vehicle, and then remove it, instantly? Council tax.

Bluebottle knows more than me on stuff like this .....but I thought that the Bailiff had to have absolute evidence that the vehicle belonged to you ..eg. not subject to an HP or pother finance ...........also just because the log book is in a persons name ....does not mean you are the legal owner.....you are the registered keeper....if you parents or some one bought it .....they are the legal owners.

Just Sparkie meandering again.:tinysmile_twink_t2:

Sparkie

You are correct in so far as the bailiff is only lawfully entitled to seize the goods of the debtor, however any car nearby is regarded as fair game as the bailiff will rely on the judgment in Observer Ltd v Gordon [1983] 2 ALL ER 945, 949

where the onus of proof is deflected to the debtor.third party.

[TVJonesClassic]

Re: Can a bailiff levy on a vehicle, and then remove it, instantly? Council tax.

oops, double post.

[TVJonesClassic]

Re: Can a bailiff levy on a vehicle, and then remove it, instantly? Council tax.

A bailiff cannot levy twice on the same goods. Additionally, a bailiff cannot levy on goods that have already been levied on by another bailiff. In the scenario you describe, if the bailiff was enforcing the first LO, his actions would, in all probability, be within the law, but, I suspect, questions would still linger as to the way he went about it. If it was for the second LO, he would be on a sticky wicket from the outset. .

Can I assume if a levy is Abandoned, i.e. the bailiff left and no-one came back for 7 days, then it's back to square one, as if the car never had been levied?

The enforcement was for the second LO.

I thought that the Bailiff had to have absolute evidence that the vehicle belonged to you

He did an HPI check on the phone (which I know was real and not him just talking to the speaking clock etc) so I assume that gave him that information.

[Sir Vere Brayne d'Emmidge]

Re: Can a bailiff levy on a vehicle, and then remove it, instantly? Council tax.

If both LOs were served by the same bailiff (not necessaraly the same person, but the same Company) then I am inclined to think that the seizure and instant removal of the car was lawful, especially if he/she could not get access to your property and perform a walking possession on any other assetts.

[teaboy2]

Re: Can a bailiff levy on a vehicle, and then remove it, instantly? Council tax.

There must be a delay between seizure and removal, especially vehicles, Culligan v Simkin & Marston Group Ltd [2008]

[Guest]

Re: Can a bailiff levy on a vehicle, and then remove it, instantly? Council tax.

There must be a delay between seizure and removal, especially vehicles, Culligan v Simkin & Marston Group Ltd [2008]

From the above

5. The delay between levy & removal- most controversial amongst enforcement agents will be the decision that there must he a delay between seizure and removal. This is probably incorrect. There will plainly be cases, especially concerning cars, where removal follows immediately from seizure. That said, where goods have been impounded by walking-possession there is an implicit expectation that there will be a delay before removal, which may call into question the propriety of any removal charges added at the levy stage.

[teaboy2]

Re: Can a bailiff levy on a vehicle, and then remove it, instantly? Council tax.

Yes but as we both no andy, its a grey area. The judge in the case himself said the following:

"Secondly, I note that r.12(2) and (3) of the 1988 Rules clearly envisage two stages. The first is the levying of the distress and the second is the removal of the goods. This gap between the two stages, and the requirement that forms 7 and 9 should be given, must be in order to allow the debtor to make payment of what is due at each stage. Accordingly, in my judgment the bailiff should not, and as a matter of law cannot, take any steps to remove goods until he has given the debtor a reasonable opportunity to pay what is due at the time of seizure. This being so I cannot see that form 7 can or should include any costs of removal. Mr Simkin included on the form 7 he produced for Mr Culligan the sum of £100 in respect of the clamp. If, as the defendants now argue, that was part of the removal expenses, it should never have been included in the form 7. The fact that the immobilisation device was applied contemporaneously at the time of seizure is confirmation that this was an impounding and formed part of the levying distress.

Thirdly, by definition, an immobilisation device primarily does exactly that, it immobilises and prevents removal. On my interpretation of the wording of para. 6 of Sch.1, I cannot see that the application of an immobilisation device can fall within the definition of "removing." The Oxford English Dictionary states the verb 'remove' means to 'move or shift from or out of the place occupied, to lift or push aside, to lift up and take away, to take off, to take or convey from a place." That clearly is the exact opposite to what the immobilisation device is designed to do. Nor can I accept that its application forms part of the preparation for removal.


I turn now to the case of Evans. This case concerned the enforcement of a community charge liability where the bailiff simply posted a notice of distress through the debtor's letter box together with a draft walking-possession agreement. On appeal by way of case stated Simon Brown J determined that the distress was effectively unlawful because no entry had been gained to the debtor's premises, which was an essential element of distress.
That, as have already explained, is not in issue here but, in the course of his judgment Simon Brown J, having reviewed various matters, set out an exposition of the current position regarding distress, the relevant parts of which are as follows [District Judge Avent then cited the paragraph from the Evans judgment in which the stages of entry, seizure and impounding are identified and analysed. It is clear from the first and fifth principles set out by Simon Brown J in Evans that a distress does, and indeed according to his definition, must include the act of impounding.


Para.2 of Schedule 1 of the Regulations permits the bailiff to make a charge for 'levying distress.' The Oxford English Dictionary defines 'levy' as "the action of collecting debts or enforcing the payment of fines" and the action of levying as "the action of collecting an assessment, duty, tax etc." Accordingly, in answer to the second issue, I find that the application of an immobilisation device falls within the act of levying distress and does not form part of the removal process. The consequence of this, and the answer to the third issue, is that the bailiff cannot recover the £100 charge for the immobilisation device, regardless of what the contract with Camden may say, insofar as it exceeds the limits imposed by para.2 of Sch.1. In this case, as the levy fee of 38.14 plus VAT has already been demanded the bailiff cannot recover from Mr. Culligan any more than that amount. I find therefore that in this instance the £100 charged for the immobilisation device cannot be recovered.


If I am wrong in relation to my analysis of the second issue and the act of immobilisation does, in fact, form part of the removal expenses, then to answer the fourth issue, I would still find that it cannot be recovered from Mr. Culligan because the defendants have produced no evidence whatsoever that it is reasonable in amount. What they have done is simply reply upon the fact that their agreement with Camden stipulates a charge of £100 and suggested that this is enough. That is clearly not sufficient. Indeed, for myself, I would find very great difficulty in accepting that the cost of applying an immobilisation device to a vehicle, even allowing for the capital cost of the device (which could then, of course, be used many hundreds of times) was anywhere near the sum of £100. It seems to be a completely arbitrary figure which in reality should be substantially less. As regards the fifth issue, namely whether the charge of £100 was reasonable for the removal costs (although the vehicle was never actually removed), the same reasoning applies: namely, that the defendants have produced no evidence as to how the charge has been arrived at and therefore are unable to show that it is reasonable.


In passing I would mention that I take the view that even the removal of a vehicle to a pound appears to fall within the definition of levying distress. However, it seems that for the purpose of the bailiff's charges and costs both r.12 and Sch. 1 differentiate between the initial stages of the levy and the subsequent removal of goods (or effectively, impounding off the premises) allowing two charges to be made. As the Schedule specifically permits charges for removal this would, in my judgment, tend to stifle any argument to the effect that the removal charges were not recoverable except under para.2 of Sch.1.


In conclusion, therefore, I find that the immobilisation charge insofar as it exceeds the amount stipulated by para.2 of Sch.1 is not recoverable by the bailiff. Indeed, neither that charge nor that made in respect of the proposed removal of Mr Culligan's car is recoverable because there is no evidence by the receiving party of the reasonableness of those charges."

The later comment in response to the judgement in the case can not be assumed to be correct or factual. Though granted it is a bit of a grey area which is something the judge was struggling with as well. And it appears to boiled down to correct procedure being followed and whether charges for clamping and removing clamp are applied.

[Guest]

Re: Can a bailiff levy on a vehicle, and then remove it, instantly? Council tax.

The earlier section I think refers to goods seized on premises rather than vehicles which can be clamped and towed.

Section 5 says "There will plainly be cases, especially concerning cars, where removal follows immediately from seizure. "