June 12, 2019 at 12:44 pm #22304AdministratorKeymaster
If the vehicle has been clamped while parked on a highway or on your own land, it WILL be removed within two hours. You must act quickly. You may even have to deploy a “Pay and Reclaim”. You must record on video the vehicle’s condition and must be repeated when the car is returned. You can sue for damage caused to it while the bailiff had control of it. If the car is clamped on private land you don’t live, such as a car park or a neighbour’s parking space, you can sue for damages and for the recovery of the vehicle.
Do the following first. (Print this out and take with you).
If its on a Highway, the bailiff WILL remove it using a truck within 2 hours.
The car will get damaged if the bailiff takes it. Take comprehensive video of the vehicle showing it clamped.
Make a continuous time stamped video using your mobile and a selfie stick with fill-flash set to ON. Record the video SLOWLY in this order starting from the front number plate:
The whole front of the car.
Move round to show the wheel clamp on the car (if fitted).
The paintwork, roof, wheel, bumpers, bonnet, all doors and tailgate including the locks, sweep the camera slowly over the roof.
Open the boot and record the spare wheel condition and its contents.
Record the engine bay, steering and brake fluid reservoir levels, the battery, the engine number and any unique markings. (Improper use of street lifter wheel brackets can rupture steering and brake hydraulics)
Record the content of the glovebox. Lock the glovebox and film the locked glovebox.
Record the mileage and fuel.
Record the whole of the underbody of the car. Bailiffs move vehicles around a compound using forklifts causing damage to engine pan, fuel lines and exhaust system. This can cause the car to be written off. With video evidence you recover the replacement cost.
Record the condition of all road wheels, the tyre walls and hubs. Street lifter wheel brackets press against them when they lift the vehicle off the ground. This can cause impact damage to the hubs and tyres to deflate.
If you cannot timestamp your video then make a sworn affidavit proving the date, time and location the video was made.
Hide a Trackimo device in the vehicle (£45 on eBay with 1 year mobile networks and SMS subscription). Using an app, it enables you to position it on Google Maps. If the enforcement complaince checklist shows it is taken unlawfully, you can go round and recover it, or alert you by text message whenever it changes position.
When bringing a claim under paragraph 35 of Schedule 12 of the Tribunals Courts and Enforcement Act 2007, you must show evidence the vehicle was undamaged immediately before it was taken. Liability then resides jointly with the creditor and the bailiff company under paragraph 66 of Schedule 12.
Cutting off a bailiffs wheel clamp
All property receives a degree of protection by law, so cutting off a bailiff wheel clamp could give rise to a possible criminal damage charge. The question is whether the owner of the vehicle had a lawful excuse. He will have to show that he acted in the belief that property was in immediate need of protection, and that his actions were reasonable having regard to all the circumstances.
The reason prosecutions for cutting off wheel clamps nearly always fail is the because defence proves bailiff was not acting lawfully. The owner of the vehicle can also sue for trespass to goods.
The clamping (or taking of your vehicle) is unlawful if it is:
Or, it is leased, or on hire purchase AND final payment is not made. Paragraph 10 of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 states;
an enforcement agent may take control of goods only if they are goods of the debtor.
In any event, the bailiff cannot SELL the vehicle because Paragraph 51 of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 states;
(1)A purchaser of controlled goods acquires good title, with two exceptions.
(2)The exceptions apply only if the goods are not the debtor’s at the time of sale.
(3)The first exception is where the purchaser, the creditor, the enforcement agent or a related party has notice that the goods are not the debtor’s.
(4)The second exception is where a lawful claimant has already made an application to the court claiming an interest in the goods.
(5)A lawful claimant in relation to goods is a person who has an interest in them at the time of sale, other than an interest that was assigned or transferred to him while the property in the goods was bound for the purposes of the enforcement power.
(6)A related party is any person who acts in exercise of an enforcement power, other than the creditor or enforcement agent.
(7)“The court” has the same meaning as in paragraph 60.
The owner of the vehicle can make an interpleader claim
Used in your employment work or education etc,
Regulation 4 of the Taking Control of Goods Regulations 2013, states;
4.—(1) Subject to paragraph (2) and to regulation 5, the following goods of the debtor are exempt goods—
(a)items or equipment (for example, tools, books, telephones, computer equipment and vehicles) which are necessary for use personally by the debtor in the debtor’s employment, business, trade, profession, study or education, except that in any case the aggregate value of the items or equipment to which this exemption is applied shall not exceed £1,350;
(d)a vehicle on which a valid disabled person’s badge is displayed because it is used for, or in relation to which there are reasonable grounds for believing that it is used for, the carriage of a disabled person;
(e)a vehicle (whether in public ownership or not) which is being used for, or in relation to which there are reasonable grounds for believing that it is used for, police, fire or ambulance purposes; and
(f)a vehicle displaying a valid British Medical Association badge or other health emergency badge because it is being used for, or in relation to which there are reasonable grounds for believing that it is used for, health emergency purposes.
Myth alert! Regulations don’t require you to have “business insurance” on your vehicle. That is a myth originating from bailiff companies. The law only requires “third party” security. Section 143 of the Road Traffic Act 1988
Being used or driven by someone
Regulation 10)(2)of the Taking Control of Goods Regulations 2013 states;
(2) Where an item which belongs to the debtor is in use by any person at the time at which the enforcement agent seeks to take control of it, the enforcement agent may not do so if such action is in all the circumstances likely to result in a breach of the peace.
(3) In paragraph (2), “in use” means that the item is in the hands of, or being operated by, the person.
Clamped before 6am or after 9pm
Regulation 13 of the Taking Control of Goods Regulations 2013 states;
13.—(1) Subject to paragraph (2), the enforcement agent may not take control of goods of the debtor before 6 a.m. or after 9 p.m. on any day.
You were not given a statutory Notice of Enforcement
Paragraph 7(1) of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 states;
(1)An enforcement agent may not take control of goods unless the debtor has been given notice.
There is no amount outstanding
The debt has been paid, (or quashed), and the bailiff is using a wheel clamp to obtain a fee.
Paragraph 58(3) of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 states;
58(1)This paragraph applies where the debtor pays the amount outstanding in full—
(a)after the enforcement agent has taken control of goods, and
(b)before they are sold or abandoned.
(2)If the enforcement agent has removed the goods he must as soon as reasonably practicable make them available for collection by the debtor.
(3)No further step may be taken under the enforcement power concerned.
Regulation 17(1) of the Taking Control of Goods (Fees) Regulations 2014 states;
17.—(1) The enforcement agent may not recover fees or disbursements from the debtor in relation to any stage of enforcement undertaken at a time when the relevant enforcement power has ceased to be exercisable.
Guideline 31 of the Taking Control of Goods: National Standards 2014 states;
Enforcement agents must not seek to enforce the recovery of fees where an enforcement power has ceased to be exercisable.
You had no previous knowledge of the debt.
Regulations depending on the type of debt:
Magistrates’ court fine: Section 14 of the Magistrates Courts Act 1980
Civil Traffic debt: Part 75.7 of the Civil Procedure Rules
The bailiff does not have a certificate.
Check the Public Register of Certificated Bailiffs:
If he does not have a certificate then commits an offence under section 63(6) of the Tribunals Courts and Enforcement Act 2007, which states;
(1)This section and section 64 apply for the purposes of Schedule 12.
(2)An individual may act as an enforcement agent only if one of these applies—
(a)he acts under a certificate under section 64;
(b)he is exempt;
(c)he acts in the presence and under the direction of a person to whom paragraph (a) or (b) applies.
(3)An individual is exempt if he acts in the course of his duty as one of these—
(b)an officer of Revenue and Customs;
(c)a person appointed under section 2(1) of the Courts Act 2003 (c. 39) (court officers and staff).
(4)An individual is exempt if he acts in the course of his duty as an officer of a government department.
(5)For the purposes of an enforcement power conferred by a warrant, an individual is exempt if in relation to the warrant he is a civilian enforcement officer, as defined in section 125A of the Magistrates’ Courts Act 1980 (c. 43).
(6)A person is guilty of an offence if, knowingly or recklessly, he purports to act as an enforcement agent without being authorised to do so by subsection (2).
You can prosecute the bailiff
The debt is out of time
The debt is more than 12 months old, the date on the Notice of Enforcement is most probably more than 12 months ago, then enforcement ceases to be lawfully valid. Regulation 9(1) of the Taking Control of Goods Regulations 2013 states;
9.—(1) Subject to paragraphs (2) and (3), the enforcement agent may not take control of goods of the debtor after the expiry of a period of 12 months beginning with the date of notice of enforcement.
Clamped or removed from private land, or a neighbours allocated parking space, etc.,
The bailiff can only clamp your car in a highway or on land where you usually live or carry on trade or business. This does not include where you are EMPLOYED. Private land includes private roads not adopted by the council and shopping centres. Paragraph 14(6) of the Tribunals Courts and Enforcement Act 2007 states;
(6)Otherwise premises are relevant if the enforcement agent reasonably believes that they are the place, or one of the places, where the debtor—
(a)usually lives, or
(b)carries on a trade or business.
Paragraph 9 of the Tribunals Courts and Enforcement Act 2007 states;
9 An enforcement agent may take control of goods only if they are—
(a)on premises that he has power to enter under this Schedule, or
(b)on a highway.
Clamping a car on private land in circumstances other than the above commits an offence under section 54 of the Protection of Freedoms Act 2012, which states;
54Offence of immobilising etc. vehicles
(1)A person commits an offence who, without lawful authority—
(a)immobilises a motor vehicle by the attachment to the vehicle, or a part of it, of an immobilising device, or
(b)moves, or restricts the movement of, such a vehicle by any means,
intending to prevent or inhibit the removal of the vehicle by a person otherwise entitled to remove it.
(2)The express or implied consent (whether or not legally binding) of a person otherwise entitled to remove the vehicle to the immobilisation, movement or restriction concerned is not lawful authority for the purposes of subsection (1).
(3)But, where the restriction of the movement of the vehicle is by means of a fixed barrier and the barrier was present (whether or not lowered into place or otherwise restricting movement) when the vehicle was parked, any express or implied consent (whether or not legally binding) of the driver of the vehicle to the restriction is, for the purposes of subsection (1), lawful authority for the restriction.
(4)A person who is entitled to remove a vehicle cannot commit an offence under this section in relation to that vehicle.
(5)A person guilty of an offence under this section is liable—
(a)on conviction on indictment, to a fine,
(b)on summary conviction, to a fine not exceeding the statutory maximum.
(6)In this section “motor vehicle” means a mechanically propelled vehicle or a vehicle designed or adapted for towing by a mechanically propelled vehicle.
You can prosecute a bailiff under this section.
Check the clamp is secure.
A ‘London Triangle’ clamp, these often can be removed without breaking anything by unraveling the chains from behind the wheel. Just take the clamp from the wheel and put it to one side and you can take the car. The bailiff has not taken control of it. Paragraph 13(1) of Schedule 12 of the Tribunals Courts and Enforcement Act 2007 states;
13(1)To take control of goods an enforcement agent must do one of the following—
(a)secure the goods on the premises on which he finds them;
(b)if he finds them on a highway, secure them on a highway, where he finds them or within a reasonable distance;
(c)remove them and secure them elsewhere;
(d)enter into a controlled goods agreement with the debtor.
If the clamp is not secured to the vehicle, the bailiff has not taken control of it by immobilising it. The vehicle is still yours.
If the clamp is secured to the vehicle, then;
i) If you are the debtor, you can bring an action under paragraph 66(3) of Schedule 12 of the Tribunals Courts and Enforcement Act 2007, or
ii) If you are NOT the debtor, claim against the creditor under section 3 of the Torts (Interference with Goods) Act 1977.
1. Recording the call on your phone, ask the bailiff on his mobile, to return to the vehicle and remove the clamp. Say why it is illegal. Give him an hour. Confirm everything by text message.
2. Recording the call on your phone, report it to police on 101 and keep the “its a civil matter” rebuttal stored on your phone. If police say a crime is a civil matter then that may itself be an offence under section 26(5) of the Criminal Justice and Courts Act 2015.
3. If it is out of hours, the council has an emergency telephone line on its website. If you need your vehicle urgently, call the council who can contact the bailiff to return to the vehicle and remove the clamp.
If you use bolt cutters then:
You must give the bailiff a reasonable opportunity to remove the unlawful wheelclamp first BEFORE cutting it off. Section 5(2)(b)(i) of the Criminal Damage Act 1971 states;
“Without lawful excuse.”
(1)This section applies to any offence under section 1(1) above and any offence under section 2 or 3 above other than one involving a threat by the person charged to destroy or damage property in a way which he knows is likely to endanger the life of another or involving an intent by the person charged to use or cause or permit the use of something in his custody or under his control so to destroy or damage property.
(2)A person charged with an offence to which this section applies, shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse—
(a)if at the time of the act or acts alleged to constitute the offence he believed that the person or persons whom he believed to be entitled to consent to the destruction of or damage to the property in question had so consented, or would have so consented to it if he or they had known of the destruction or damage and its circumstances; or
(b)if he destroyed or damaged or threatened to destroy or damage the property in question or, in the case of a charge of an offence under section 3 above, intended to use or cause or permit the use of something to destroy or damage it, in order to protect property belonging to himself or another or a right or interest in property which was or which he believed to be vested in himself or another, and at the time of the act or acts alleged to constitute the offence he believed—
(i)that the property, right or interest was in immediate need of protection; and
(ii)that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances.
(3)For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held.
(4)For the purposes of subsection (2) above a right or interest in property includes any right or privilege in or over land, whether created by grant, licence or otherwise.
(5)This section shall not be construed as casting doubt on any defence recognised by law as a defence to criminal charges.
Otherwise you may be guilty of an offence under Section 1 of the Criminal Damage Act 1971 which states;
1 Destroying or damaging property.
(1)A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.
(2)A person who without lawful excuse destroys or damages any property, whether belonging to himself or another—
(a)intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and
(b)intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered;
shall be guilty of an offence.
If using bolt cutters is not for you, then consider;
1. Making an Interpleader Claim if the debt is not yours or the vehicle is an exempt vehicle
2. Deploying a Pay & Reclaim.
3. Pay the “amount outstanding” to the council or creditor.
Make a claim in the small claims court.
Deploy the following with the council (or creditor) and your MP using the instructions contained herein. Send a copy to the bailiff by text message.
Formal Complaint letter for illegally using a wheel clamp.
If you have no supporting evidence the vehicle is illegally clamped, make a sworn affidavit.
If you need the use of the car, or its causing a loss, then the law says you are not guilty of an offence if you break an illegal wheel clamp.
If a police officer makes an arrest, or threatens it for cutting off an illegal wheel clamp, then contact a solicitor specialising in unlawful imprisonment and false arrest.
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