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Withdrawing implied right of access/ complaints of no " wet signature"


The Undertaker

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The Undertaker

Loads of youtube videos feature people putting notices on their doors, which state along the lines off;

" implied rights of access revoked to all bailliffs/police , attendance on property will be trespass/ trespasser will be liable for xxx amount of money"

Another popular video is where the bailiff turns up with warrant of entry, debtor inspects warrant and states warrant is invalid because no wet signature is on warrant.

Both above situations lead to a stand off and police attend.

Questions are how does revoking implied rights of access stop a bailiff with a court warrant?

Secondly is the needing a wet signature a myth?

Or is it just rubbish from FMOTL types?

One popular youtube video where the police side with the debtor.

 Relevant bit from 11 minutes.

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Sceptre

A lot of the things people quote about bailiffs and similar is pseudo-legal nonsense, but there is the case of R v CC of Lancashire (ex parte Parker and McGrath) [1992] which although it refers to PACE warrants does require that only warrants certified by the judge are used rather than any old photocopy. A good reason to get the judge to issue at least three or four copies in case the homeowner rips up the first one you give them or one gets lost in the internal post, but that's by the by.

If someone wants to sue a bailiff simply for knocking on their door then they can knock themselves out; not only will a distress warrant probably permit them access but if they're in debt in the first place they probably can't afford it anyway. 

Frankly the police should not be getting involved other than to prevent breaches of the peace at this sort of job, and we should resist efforts by debt collectors to get us to come along effective to intimidate the homeowner. Their warrants are very unlikely to name the police meaning we cannot help execute them. 

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The Undertaker

Interestingly i have done a bit more digging and to answer my own question, about implied rights of access being revoked for bailiffs, the following case is quite interesting.

  The following case that was heard before District Judge Pugh in Norwich County Court in January 2013 via the "Small Claims Track" 

Quote
Background

In July, the debtor wrote a letter to Rossendales headed “Notice of Removal of Implied Right of Access.” It was sent by recorded delivery. 

The letter purported to be a legal notice removing the bailiff’s right of access to the debtor’s property and warned that any attempt to enter the address by a bailiff of the company would be deemed as trespass. The letter went on to say that a criminal complaint would be filed against any party violating the notice and that a penalty of £750 would be charged.

Rossendale's responded to the letter by advising the debtor that as a liability order had been obtained at the magistrates court and instruction had been received from the local authority to execute distress, that the bailiff was able to legally attend the property in order to enforce the debt.

Subsequently,a visit was made to the debtor’s property by the bailiff. No contact was made with the debtor at this particular visit although the relevant bailiff attendance documents were left at the property by the bailiff.

The next step taken by the debtor was for a claim to be lodged to the county court for an alleged trespass by Rossendales Ltd on his property.


Particulars of claim:

These were as follows:


The claimant (debtor) had served Rossendales Ltd (defendant) with a Notice of Removal of Implied Right of Access by recorded delivery in respect of the claimant’s property.

The notice contained contractual terms and conditions including a penalty of £750 to be paid by Rossendales in the event of trespass.

By the bailiff subsequently attending the claimant’s property it was averred that an act of trespass was committed and the contractual term to pay the trespass fee stated in the Notice of Removal of Implied Right of Access had been accepted by the defendant.

The bailiff had no legal right to attend the claimant’s property as he did not possess a copy of the liability order.

Reference was made to the case Davis v Lisle KBD 1936 in which the Court of Appeal held that a permission given to enter private property may be revoked, making the visitor a trespasser.



At the hearing:

Rossendales as the defendant, rebuffed the claims made stating that it had authorisation from the local authority to execute distress (a copy of which was made available at the hearing), but that Regulation 45(1) Council Tax (Administration and Enforcement) Regulations 1992 (S.I.1992/613) provides that:

"Where a liability order has been made, the Billing Authority which applied for the order may levy the appropriate amount by distress and sale of goods of the debtor against whom the order was made"

Furthermore, Regulation 45(7) says that:

"A distress shall not be deemed unlawful on account of any defect or want of form in the liability order, and no person making a distress shall be deemed a trespasser on that account".;

and that:

"no person making a distress shall be deemed a trespasser from the beginning on account of any subsequent irregularity in making the distress, but a person sustaining special damage by reason of the subsequent irregularity may recover full satisfaction for the special damage (and no more) by proceedings in trespass or otherwise".

Judge Pugh questioned the legality of the claimant’s case. He said that while he had no reason to query the use of the Notice of Removal of Implied Right of Access, he felt that its relevance in this particular matter was left wanting, as withdrawing consent to the right of access to the property did not override the legal right of the bailiff.

He agreed with Rossendales that the bailiffs had been granted powers by statute contained within the Council Tax (Administration and Enforcement) Regulations 1992 to levy distress and that as per Regulation 45(7) they could not be considered a trespasser. 

The Judge went on to say that as a liability order had already been granted by the magistrates court, he had no reason to “look behind” the validity of the application and did not intend to question this further, accepting that any appeal relating to the making of the order should have been made to the magistrates court after the original liability order hearing.

Furthermore, the Judge said that despite what the claimant had written in the notice regarding contractual terms and conditions, it was not a contract as there was no consideration from either party involved. The claimant could not simply rely on Rossendales accepting the terms of the notice purely because they carried on with the lawful act of levying distress. 

The Judge felt that the claimant was confusing the law of contract with the tort of trespass – which was a different element of law altogether. 

It was stated by Judge Pugh that it is a common misconception that trespassers can be automatically prosecuted when in fact they cannot. Instead, an aggrieved individual would have to demonstrate that there had been a loss as a result of damages caused by the defendant’s alleged trespass

Despite remonstrations from the claimant, the Judge dismissed any reference to the case Davis v Lisle* (1936) mentioned in the claimants application, saying that it did not bear any direct relevance to the matter before him between the claimant and Rossendales.

The question was put to the claimant; where was the loss in this particular instance? The claimant could not provide any evidence to support his claim. 

Conclusion:

The subject of “penalty clauses” is one that is currently causing a great deal of debate in particular; with private parking companies who frequently attempt to impose a penalty charge of up to £100 ( and in some cases even more) for overstaying the stated parking time in supermarket car parks such as Lidl, Morrison, Aldi etc. POPLA (Parking on Private Land Appeals) and the county courts are frequently rejecting such charges on the basis that they are not a “genuine pre-estimate” of the likely damages experienced. 

As the Rossendales bailiff had merely visited the property and left a notice confirming his attendance, any trespass would have been negligible and damages nominal. 

In his final summary, the Judge made it clear to the claimant that he had been ill-advised in making his claim to the county court to try and prevent the bailiff from carrying out what he was perfectly legally entitled to do.

From the claimants’s response it was clear that he had been influenced by information on the internet when preparing his case.

Not surprisingly, the court claim failed. 

Judge Pugh dismissed the penalty of £750 and ordered the claimant to pay Rossendale’s legal costs.
 
 
 

Source

Quite sad that even after this case, to this day vulnerable people are still jumping on the FMOTL bandwagon to avoid paying debt. 

Edited by The Undertaker
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MerseyLLB

Implied right of access and it's withdrawal does have some bearing upon these matters but not when a professional bailiff firm is involved with appropriate documentation/authority.

I was served such a notice a while ago and so I scanned a copy into the system and placed a marker on the address. Purely because it poses a risk that a misinformed occupier might think he has free reign to expel officers with considerable force. Look to Sovereign citizen cases in the US for the danger.

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  • 3 years later...
On 08/05/2017 at 17:59, Sceptre said:

A lot of the things people quote about bailiffs and similar is pseudo-legal nonsense, but there is the case of R v CC of Lancashire (ex parte Parker and McGrath) [1992] which although it refers to PACE warrants does require that only warrants certified by the judge are used rather than any old photocopy. A good reason to get the judge to issue at least three or four copies in case the homeowner rips up the first one you give them or one gets lost in the internal post, but that's by the by.

If someone wants to sue a bailiff simply for knocking on their door then they can knock themselves out; not only will a distress warrant probably permit them access but if they're in debt in the first place they probably can't afford it anyway. 

Frankly the police should not be getting involved other than to prevent breaches of the peace at this sort of job, and we should resist efforts by debt collectors to get us to come along effective to intimidate the homeowner. Their warrants are very unlikely to name the police meaning we cannot help execute them. 

I agree on a personal level the police shouldn't be getting involved however from a professional point of view the law is there to be adhered to and the old breach of the peace" is a default stance for many Officers as suprise suprise they are human and don't know every law. 

Here is just 2 that could of been used to deal with the above situation. 

Tribunal Courts and Enforcement Act 2007 Schedule 12 regulation 68.
A person is guilty of a criminal offence if he intentionally obstructs an enforcement agent. Or interferes with controlled goods without lawful excuse.


This is punishment with up to 51 weeks In prison, a level 4 fine or both. 
 

Section 99, Schedule 7, paragraph 5 of the Courts Act 2003:

5. It is the duty of every constable, at the request of -

a) an enforcement agent
to assist the enforcement agent or that person in the execution of a writ.

I'm a bit of a geek you see lol. Also here is a freebie a bailiff doesn't actually need to have a copy of the warrant he just needs to have knowledge of its existence to enforce it. 

 

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BlueBob

Just love the way some of these alternative folks who are so opposed to the legal system, when challenged and have a trespasser on their land, immediately resort to the very same laws they were initially so opposed to!
As for assisting a bailiff, I'd see that preventing a BofP is assisting and after that its all down to the bailiff.  I can't se it being expected or accepted that a police officer would be expected to help lug to the sofa and chairs to a waiting flatbed transit🙈

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Sceptre
On 10/12/2020 at 02:36, TooTall said:

I agree on a personal level the police shouldn't be getting involved however from a professional point of view the law is there to be adhered to and the old breach of the peace" is a default stance for many Officers as suprise suprise they are human and don't know every law. 

Well, a slap on the wrist for me for not doing my research properly three years ago... 

That duty to assist, from a brief read of the legislation I take it that it applies only to High Court writs executed by their enforcement officers and not any old bailiff enforcing a CCJ?

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  • 2 weeks later...
On 12/12/2020 at 14:16, Sceptre said:

Well, a slap on the wrist for me for not doing my research properly three years ago... 

That duty to assist, from a brief read of the legislation I take it that it applies only to High Court writs executed by their enforcement officers and not any old bailiff enforcing a CCJ?

Nope that is for all Bailiffs regardless of the warranty they have. TV has hyped High Court as the best of the best however the power's are identical the only difference would be enforcing a eviction. Evictions can only be carried out by High Court Bailiffs. 

However keep in mind the powers each warrant grant are very different. While the courts act stats you must assist it is only within the powers of the warrant. It wouldn't really be a useful power to use for the vast majority of County and High Court jobs as they only permit peaceful entry so you being asked to assist will make no difference. Now Magistrate Warrants would be a different kettle of fish as the bailiff is allowed to use force. 

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On 24/12/2020 at 23:09, TooTall said:

 Evictions can only be carried out by High Court Bailiffs. 

 

Unless things have changed fairly recently, that's not the case and a residential possession order can be enforced by the County Court.

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Sceptre
On 24/12/2020 at 23:09, TooTall said:

Nope that is for all Bailiffs regardless of the warranty they have...

But S99 Courts Act 2003, which gives rise to Schedule 7, is titled High Court writs of execution...

Enforcement officer, the people the duty in Schedule 7 applies to, appears to be defined quite tightly as a person authorised as such which I take to mean High Court enforcement officers or their agents.

And of course the exact form assistance may take remains an operational matter for the police. Sometimes it might look like Dale Farm, but on most occasions due in no small part to the complexity of the legislation here it will be limited to preventing disorder. 

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BlueBob
On 24/12/2020 at 23:09, TooTall said:

for all Bailiffs regardless of the warranty they have.....  the powers each warrant grant are very different. 

Oh, oh, I know, communications!  Perhaps if bailiffs gave a briefing to the officers which clearly detailed (I was going to say outline but that would be too vague) the police powers and requirements placed upon them to assist the bailiffs.  That way, if that briefing document is legally correct then the officers know where they stand, if its incorrect, the officers, to some extent, are covered if they make an error and can fall back on the bailiffs briefing notes and put them in the spotlight as well as being liable for any claims the officers / force may want to make against them for unlawful/ inappropriate acts.  
I'm sure there is some comms in these cases, but perhaps there is a high degree of assumed silence as to who has powers to do what, when and why. 

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