Magistrate Court FINES and bailiff fees....Freedom of Information response from HMCTS

[Milo]

The subject of Magistrate court fines and in particular, the matter of bailiff fees for enforcing such criminal fines has been the subject of much debate on this forum for a very long time ( this will no longer be the case from 6th April when the new fee scale is implemented).

Sadly, there are a handful of websites (known to this forum) that are known for providing misleading information to debtors and in doing so, the websites encourage debtors to either take court proceedings against either the bailiff companies, the Ministry of Justice or the Police. For a 'fixed fee' the website will even offers to 'draft' the relevant claim forms on behalf of the debtor. It should be noted that to date, the websites in question have failed to provide any evidence at all of any successful court actions.

It would seem that yet another debtor (by the name of C.L.Miller) had been misled by the advice that he received on the internet and accordingly, made a Freedom of Information request to the Ministry of Justice in December. The link below is to Mr Miller's question and the official response that was dated 21st January 2014.

https://www.whatdotheyknow.com/request/bailiff_actions

[Milo]

Re: Magistrate Court FINES and bailiff fees....Freedom of Information response from H

To clarify, Mr Millers questions were as follows:

Dear Her Majesty’s Courts and the Tribunals Service,

Please pass this on to the person who conducts Freedom of Information reviews. Under the FOI act I am requesting that you confirm/deny or answer the following questions and statements.

1) If i paid my court fine direct to court does this still leave the distress warrant available to the private bailiff that you employ to come to my house and say i'm a court bailiff and threaten me with arrest and also saying he is going to drill my locks for just his fees ?

No levy was made and no distress had taken place.

Would you suggest a form 4 complaint on a bailiff that has done all of the above acts ?

2)The issue of a Distress Warrant falls under Section 76 of the Magistrates' Courts Act 1980 to recover the sum you have been ordered to pay by levying distress on your goods (taking and selling them) to satisfy the amount you are ADJUDGED to pay.

3)When you pay the sum you were fined by the court,(not the bailiff charges added to it) the law says the distress warrant "no longer has effect". Part 52.8(5) of the Criminal Procedure Rules 2013. In other words, the warrant dies.

4)Some bailiff companies claim Part 52.8(5)(ii) of the Criminal Procedure Rules 2013 is a license to charge "fees" or the "costs of execution of the warrant".

5)The law actually says it only applies to the "extra sum payable in connection with the EXECUTION of the warrant". That means, when you pay your fine (the sum you are adjudged), there are no costs of execution because there is no warrant to execute - it ceased to have effect.

6)There is nothing in the legislation that enables bailiffs to enforce payment of "fees" and HM court service has confirmed it does not enforce payment of fees.
If so why do court staff say you have to pay fees ?

7) Should a bailiff discuss my debt or try to obtain money from anyone but the debtor ?

8)What does the contract that you have with the private bailiff companies say about monies received from a debtor in regards to paying the courts after the bailiff have received money from the debtor for a court.

[Milo]

Re: Magistrate Court FINES and bailiff fees....Freedom of Information response from H

The official response dated 21st January 2014 is from the National Contracts Manager; Criminal Enforcement Team at Her Majesty's Courts & Tribunal Service:



"I can refer you to relevant legislation, I believe in questions 1 to 6, you consider that there is no lawful authority for you to be required to pay the bailiff charges.

We disagree with this and have set out in the following paragraphs the legislation and rules that govern charges.

The legislation that permits persons charged with the execution of distress warrants to recover their fees can be found at s.76(2) of the Magistrates' Courts Act 1980, taken together with relevant rules of court. The relevant court rules for civil sums (so those which are not fines) are the Magistrates' Courts Rules 1981 (rule 54), and for fines it is now the Criminal Procedure Rules 2013 Part 52. Rule 52.8(2) and (5), which make clear that extra sums payable in connection with the execution of the warrant must be paid if the warrant is to cease to have effect. Until they are, the warrant is effective regardless of whether the fine itself has been paid (see in particular r.52.8(5)(c).


In JWB Group Ltd v Ministry of Justice [2012] EWCA civ 8 the Court of Appeal clearly indicated that the costs of recovery are effectively borne by the defaulter because the enforcement agent executing a warrant is entitled to take sufficient to cover not only the unpaid fine but also the costs of recovery. The Court specifically referred to the provisions of the Criminal Procedure Rules in drawing its conclusion as to the nature of the means by which enforcement agents under these kinds of contracts are paid.

Question 7. You ask about bailiffs discussing your debt. The companies contracted as Authorised Enforcement agents are subject to the Data Protection Act. You also add “try to obtain money from anyone but the debtor” a distress warrant orders them to obtain value of the money owed and any costs of carrying out the warrant without an explanation behind this question I am unable to comment further

Question 8. The contract has several references about paying money collected to HMCTS but I cannot see the relevance to a defaulter without more detail.

[Milo]

Re: Magistrate Court FINES and bailiff fees....Freedom of Information response from H

Interestingly, Her Majesty's Courts & Tribunal Service have referred to the Court of Appeal case of JBW Group v The Ministry of Justice by stating as follows:


In JWB Group Ltd v Ministry of Justice [2012] EWCA civ 8 the Court of Appeal clearly indicated that the costs of recovery are effectively borne by the defaulter because the enforcement agent executing a warrant is entitled to take sufficient to cover not only the unpaid fine but also the costs of recovery. The Court specifically referred to the provisions of the Criminal Procedure Rules in drawing its conclusion as to the nature of the means by which enforcement agents under these kinds of contracts are paid

Crucially, the internet sites responsible for the misleading advice about the fees payable for enforcing criminal fines deceive the public by stating the following:

"One of Britain’s most senior judges Lord Justice Elias has confirmed there is no contractual obligation on defaulters to pay fees of the enforcement company"

The website will then "claim" that Lord Justice Elias made this statement himself in paragraph 38 of the Court of Appeal judgment.

However, this is a lie.

In fact, Lord Justice Elias did NOT say what is quoted at all.

The truth of the matter is that the comment is merely the "submission" from Mr Peter Knox who was presenting JBW Group !!!

As anyone reading this judgment will know....JBW Group lost the case !!!

http://www.bailii.org/ew/cases/EWCA/Civ/2012/8.html

[Milo]

Re: Magistrate Court FINES and bailiff fees....Freedom of Information response from H

The JBW v Ministry of Justice Court of Appeal Judgment is a significantly important 'landmark' ruling and its importance cannot be underestimated.

Earlier this evening I had a series of email exchanges with a close friend (and neighbour) who is a retired Judge and it was explained to me that particular attention should be given to paragraphs 11 through to 21 and in particular; paragraphs 19, 20 and 21.

I was also reminded of the importance of paragraph 56 which is the comment from the MASTER OF THE ROLLS (who at that time was believed to be Lord Neuberger) and where he stated as follows:

"I have read the excellent judgment of Elias LJ in draft. He has fully set out the facts and issues, and his reasons for dismissing this appeal. I agree with those reasons".

The Master of the Rolls is the Head of Civil Justice, and the second most senior judicial post in England and Wales, after the Lord Chief Justice.



http://www.bailii.org/ew/cases/EWCA/Civ/2012/8.html

Lastly,
It would seem that Mr Miller (who had made the FOI request) had greatly assisted all enforcement company by making the FOI request because; if any of the four enforcement companies were to receive complaints or writs from debtors ( or claims management companies) they need do nothing more than to respond with a copy of the HMCTS response (to the FOI) and a link to the judgment referred to above.