Bailiffs: Irregular Distress
Irregular Distress (Levy) by Bailiffs
With thanks to Tomtubby
MRS AMBROSE v NOTTINHGAM CITY COUNCIL
This is another well known legal cases that has been relied upon many times when either issuing proceedings, or one that can be referred to when writing a letter of complaint. This case concerns a lady by the name of Mrs Ambrose who claimed that a levy (distress) was irregular as bailiffs had removed goods from the home that were necessary for “providing the basic domestic needs of the family”
Mrs Ambrose and her husband had an unpaid Council Tax bill for £851.00 owing to Nottingham City Council. In September 2003, Rossendale’s Bailiffs attended at their home to levy distress on goods. Rossendale’s had entered the property, where they identified items that were listed on a Walking Possession. Next to those items listed, the bailiff wrote the words: “and all other goods on the premises unless exempt or specially exempt by statute.” The bailiff had not looked around the house; he had merely entered one room and was therefore unable to see which items were “exempt”
Regulation 45 of the Council Tax (Administration and Enforcement) Regulations 1992 lists the following items as being exempt from seizure:
- "Such tools, books, vehicles and other items of equipment as are necessary for use personally in employment, business or vocation"
- "Such clothing, bedding, furniture, household equipment and provisions as are necessary for satisfying basic domestic needs of the person and family".
As the Council Tax remained unpaid, the bailiff returned with a van to seize furniture that included a sofa, footstool and two dining chairs.
District Judge Cooper agreed that the seizure was irregular as the bailiff had removed furniture that was necessary for “satisfying the basic domestic needs of Mrs Ambrose and her family” This was because, amongst other items removed, the bailiffs had removed 2 dining chairs. They left behind the table and the remaining two chairs. As the family consisted of Mrs & Mrs Ambrose and one child, the bailiffs should have left seating for 3 people, not two.
Nottingham City Council had argued that there could not be any irregularity as Mrs Ambrose had signed the Walking Possession. This was rejected by Judge Cooper who agreed that Mrs Ambrose was faced with the prospect of having her goods removed unless she signed the Walking Possession.
As important as the above is, the Judge also agreed that the wording on the Walking Possession was deficient in that the reference to “all other goods on the premises unless exempt” did not specify what those other goods were, and which ones were exempt. The Judge agreed that the levy was also irregular for this reason.
Note: Nottingham Magistrates Court October 2004. (On Appeal….District Judge Cooper.
BA TU DINH v DRAKES GROUP LTD (2000)
The following, is an unreported case, and is very interesting indeed as it concerns a very old legal act called the Statute of Marlborough. This was a set of laws passed by King Henry III of England in 1267. There were originally 29 chapters, of which four are still in force. It is the oldest piece of Statute Law in the United Kingdom which has not been repealed.
The valid chapters include C1, C4 & C15 (often referred to as the Distress Act 1267 which govern the recovery of damages (“distresses”) and which make it illegal to obtain recompense for damages other than through the courts.
The claim is against Drakes Group Ltd for damages for unlawful distress levied on the claimant’s car, which had been subject to parking penalties incurred by the previous owner.
CC (Shoreditch) (Judge Graham) 8/11/2000
TRANSPORT - DAMAGES
UNLAWFUL DISTRESS: CERTIFIED BAILIFFS:
MULTIPLE COSTS BY BAILIFFS : DATE OF PURCHASE : PARKING FINES
The claimant established that the bailiffs were liable for unlawful distress to his car by seizing and selling it and won damages accordingly.
Claim against a company of certified bailiffs:
Drakes Group Ltd ('D') for damages for unlawful distress levied on the claimant's ('C') car, which had been subject to parking penalties incurred by the previous owner.
The claimant bought the car on 5 August 1998 and insured it from the following day. However, he did not receive the log book until he paid the balance of the purchase price in October 1998.
The previous owner, who had lived at the same address as C, had failed to pay eight parking fines and warrants of execution were issued that Drakes Group Ltd was instructed to enforce. Drakes Group seized the car and sold it at public auction. On 19 November 1998 the claimant reported the car as stolen to the police. He contended that the title had transferred to him prior to the seizure. He argued that he did not open the notices warning of seizure sent to the previous owner who had lived at his address before him because he did not open her post.
Drakes Group Ltd relied on the lack of documentary proof of payment at the time of seizure and the fact that the logbook had not yet been transferred to C to contend that he had failed to prove that he had actually purchased the car.
An employee of Drakes Group Ltd stated that he had placed a notice of seizure on the car windscreen on 21 September 1998 and gave a location as to where the car was. Drakes argued that the location of the car was different, because it was never parked where the claimant claimed it was, since that space was reserved for someone else. Drakes Group stated that 14 visits were made before the car was impounded and that costs were due for each visit.
It was held:
(1) The Road Traffic Act 1991 introduced a new system for enforcing parking penalties in London: it transferred the jurisdiction from the magistrates' to the county court amongst other matters.
(2) Title in the car had not been transferred on the date of purchase, but on the date that C was given the logbook. The seizure did not occur on 21 September 1998. Drakes Group Ltd apparent overcharging for visits to the car further undermined its defence.
It was reasonable and likely that C did not open the previous owner's post. It was unlikely that C would report the car as stolen if he knew that it had received the seizure notices.
For those reasons, C had established that the car had been purchased in good faith for value without notice that a warrant had been issued and remained unexecuted.
(3) Therefore, the distress was unlawful because it was levied on the public highway in breach of the Statute of Marlborough.
(4) Since public auctions generated prices at only a fraction of a vehicle's true value, Parker's Guide was referred to for the assessment of C's quantum. The other ingredient was loss of use. Damages in the sum of £5,955 were awarded plus interest at 7 per cent for two years.
Claim allowed. Mr Baker for C. Mr Docherty for D.
LTL 26/6/2001 (Unreported elsewhere) Judgment: Official Document No. AC0100422 Lawtel document(s) - 08/12/2006 22:48
Onus of proof on items.
OBSERVER LTD V GORDON (1983)
In the legal case of Observer Ltd v Gordon (1983), this case shows that it is “not reasonable” to expect the bailiff to make enquiries as to ownership.
This case ruled that if a bailiff has a reasonable belief that the goods that he lists on a Walking Possession are owned by you, then these goods can be seized.
This ruling applies not only to items within the household but to motor vehicles as well.
To conclude, the onus of proof is on you….not the bailiff, to prove that the goods are not yours. Our advice would be to ensure that you have copies of receipts available.