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Removal of Implied Right of Access. Case lost in Court.

BailiffAdviceOnline asked:

Given the huge public interest in the matter of Removal of Implied Right of Access notices, and the supposed way in which bailiffs can by prosecuted for “trespass” visitors to this forum may wish to reflect on the following case that was heard before District Judge Pugh in Norwich County Court in January 2013 via the “Small Claims Track”


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.

butterfingers replied:

1. regulation 45(7) refers to “a distress shall not be deemed unlawful on account of any defect or want of form in the liability order

N/A Nobody is disputing the liability order

2. Regulation 45(1) also allows for the billing authority to engage bailiffs to levy upon & sell the goods belonging to the debtor

Not if the debtor does not consent they can’t

3. Regulation 45(7) states that no person shall be deemed a trespasser on account of any subsequent irregularity in making the distress

N/A Nobody is disputing the way distress was made

The judge then contradicts himself because he claims that “withdrawing the right to access did not override the legal right of the bailiff”

Even MarstonsCAG big hitters encourage newbies to not allow a bailiff into their home as a perfectly lawful action-Of course a private bailiff with no authority from the courts can have his right of access withdrawn.

I agree that to place a fee onto the notice is not a contract in much the same way that private parking companies cannot place a fee for parking on private land. Trespass is not a criminal offence anymore, unlike aggravated trespass. I would be inclined to sue on the grounds of embarresment & humiliation suffered by such an action. I would also argue that all fees subsequently charged for were not valid as the bailiff was not acting in the execution of his duty from the point he breached the NOROIROA onwards. It is interesting in Letissers thread that B & S have admitted that they can’t enter properties when they have been issued with a NOROIROA

BailiffAdviceOnline replied:

Let me say right now that depending on the type of “debt” such notice may well be effective. TV Licensing is one example.

Where everybody appears to be making a mistake is that aside from unpaid magistrate court fines, a bailiff may only gain entry to the debtors property “peacefully” and in most cases, this is by misleading the debtor …mainly by stating that unless allowed into the property he cannot agree a payment plan etc.

My personal opinion at this current stage is NOT to allow a bailiff into the property and the reason for this is again very simple.

If entry in gained then the debtor will be liable for a “levy fee” and a “walking possession fee” and will also not know until AFTER entry is gained what payment arrangement will be agreed.

Furthermore….and this is important, with council tax the legislation provides that from all payments made bailiff fees are first deducted. Accordingly, (and again this is my personal opinion) by allowing a bailiff into the property the debt will INCREASE and any payments that the debtor is able to make will NOT go towards reducing the debt to the council but instead….will go into the bailiff companies coffers.

What is obvious to anyone reading the Removal of Implied Right of Access notices is that they are merely littered with irrelevant case law most of which has been wrongly interpreted by the “author” of the notices.

There is simply loads of case law relating to the legal position of “public” or private” land but with respect, the “author” of these notices appears to be missing the point as to what “class of person” is deemed BY LAW to have “a lawful right” to walk up the pathway of a house and knock at the door.

For example; appeal case law defines a postman and even a Jehovah Witness to have a “lawful right” to knock at the door of a house. It beggars belief therefore that a bailiff representing a government agency in possession of a warrant could not also have a “lawful right” to go to the debtors door.

It is simply beyond belief.

Lastly, if a bailiff could not be classed as having a “lawful right” then this would make a complete mockery of County Court Bailiffs (employee’s of the court) who can face PERSONAL prosecution if they fail to levy upon goods when the opportunity arises.

butterfingers replied:

So why have Bristow & Sutor admitted in their letter that they cannot gain entry to the debtors house due to the NOROIROA?

The case you have quoted is regarding damages. I do not use a notice to gain damages, I use it to stop the bailiffs. If a private bailiff ignores the notice, he is not acting in the execution of his duty and is therefore a trespasser. All fees from this point onwards are invalid.

I read with interest that as recently as 2012, John Kruse has commented on the possibility that a NOROIROA may be useful in some instances (council tax, parking fines etc)

I can’t help but feel part of your mission to dismiss the notice is because Jason advocates it. The pair of you really need your heads banging together & to grow up a bit. The constant bickering only serves to play into the hands of the people we are supposed to be fighting. I notice in the B & S letter is also a reference to the Burnley form 4 complaint-The only place I’ve read about this on the internet is in posts made from yourself. There is almost gloating & celebrations on MarstonsCAG when someone who tries to make a stand against this corruption fails.

JasonDealingWithBailiffs replied:

And bailiffadviceonline even speaks highly of John Kruse’s work.

He is an undisputed expert in the law of distress.

mareo replied:

PROOF DENIAL OF ACCESS WORKS

by ceylon » Tue Nov 13, 2012 6:55 pm
POSTED BEFORE BUT HERE YOU GO AGAIN

http://www.getoutofdebtfree.org/forum/v … it=implied

and more

http://www.getoutofdebtfree.org/forum/v … =+peaceful

If it works for the Police, it will work for all

BailiffAdviceOnline replied:

So why have Bristow & Sutor admitted in their letter that they cannot gain entry to the debtors house due to the NOROIROA?

It may be because I using a MacBook but I cannot see where the letter Bristow & Sutor have confirmed that they cannot enter the debtors home due to the NOROIROA. Could you let me know which paragraph and which page.

I read with interest that as recently as 2012, John Kruse has commented on the possibility that a NOROIROA may be useful in some instances (council tax, parking fines etc)

I know John Kruse pretty well and in fact, he also stated recently that the NOROIROA is “defective”.

I can’t help but feel part of your mission to dismiss the notice is because Jason advocates it.

You couldn’t be more wrong.

I notice in the B & S letter is also a reference to the Burnley form 4 complaint-The only place I’ve read about this on the internet is in posts made from yourself.

Again…not true. This was a Form 4 Complaint drafted by Jason and this was confirmed on BHF by the claimant himself. It is my understanding that a report of the case was made in a trade mag before I had posted about it.

JasonDealingWithBailiffs replied:

I would normally ask you for the claim number for the Norwich case and I will get the tapes written up, but since you have been behind so many spoof court cases posted on the CAG forums sending me on pointless goose chases around the Court Service, I won’t even bother.

butterfingers replied:

The “Bailiffs Law & Your Rights” book, written by John Kruse (published 2011 not 2012-sorry), constantly advertised on the MarstonsCAG website contains the following on page 58:

“Readers may note that it is, in theory at least, possible to refuse a bailiff entry before he has even crossed the boundary of a property. No less an authority than Lord Scarman suggested in one case that it would be possible to put up a sign on the front gate of a property, forbidding entry to police officers and bailiffs, and this would have to be respected. This curious fact underlines the quite weak rights of entry that bailiffs actually possess”

On what grounds has JK stated the notice defective?

The Bristow & Sutor letter is in post #1 of the thread on this board started by Letisser

Tmonesixnine replied:

Lots of interesting points here.

The two notices from the council and police respectively are interesting. The first might be something to do with the Occupiers liability act 1984, the second by the police is a nonsense empty threat.

Trespass is not a crime – that is the fundamental thing to understand. So the DJ in the case you cite is basically correct.

However trespass is a tort and is actionable per se so its not a complete picture.

There are various defenses to trespass including an implied licence (this is what a postman etc. would use) a notice could serve to remove an implied licence. What it won’t do is give you an automatic right to claim damages etc.

Other defense to trespass include having common law or statutory authority. This is what the police and bailiffs will rely upon if they were accused of trespass.

Let me say right now that depending on the type of “debt” such notice may well be effective.

I think this is probably true, but if the bailiff does not have authority to enter the property, a closed door would be just as good a barrier to prevent them entering the property as any notice. Its not really giving you anything above and beyond what protection you already have at common law.

Anyway I’m out and about at the moment. I will post a proper reply later.

JasonDealingWithBailiffs replied:

I would also concur with both the above posts.

I haven’t read JK’s book but his comment is also correct. It’s the Morris Beardmore case http://www.dealingwithbailiffs.co.uk/Mo … L1981.html [ http://www.dealingwithbailiffs.co.uk/Morris-v-BeardmoreHL1981.html ]

butterfingers replied:

With regards the last point of your post, I would argue that the advantage of the notice over the “door slam” is twofold.

1.By sending the notice, you eliminate any further costs for visit fees.

2.If bailiffs were to visit 10 vulnerable debtors who had been advised to “slam the door”, at least one (& probably more) would fold under the pressure placed upon them by the bailiff. Sending the notice saves the vulnerable debtor from the confrontation.

BailiffAdviceOnline replied:

By far the biggest area of dispute at this present time is “private parking” ( and by this I mean in supermarket car parks, out of town shopping complex’s and motorway service stations)…in other words on land that is not local authority owned.

Following the government banning of “cowboy clampers” last October (under the Protection of Freedoms Act 2012) the same operators have now quickly turned into “cowboy ticketers” and people are now being charged a standard fee of £100 for overstaying in Lidl’s or Morrisons supermarket by just 2 minutes. The damage to shops is immense and will get much worse over Christmas with many people turning to the internet.

In order to “sweeten up” the private parking operators, the government allowed these parking companies to pursue the KEEPER and not the driver of the vehicle.

The result is that companies such VCS or Parking Eye etc are now issuing tickets at a rate never seen before. The DVLA is simply overwhelmed by the level of complaints from vehicle owners at the way in which their personal data is being sold.

A condition of “keeper liability” was imposed by the government and that being that there had to be an INDEPENDENT appeal service. This is known as PoPLA (Parking on Private Land Appeal). Thankfully, forums are now encouraging people to APPEAL each one of these tickets and not to ignore them. The result now being that PoPLA are constantly ACCEPTING the appeal on the basis that the land owner cannot demonstrate a “genuine pre estimate of loss” resulting from the “alleged trespass”.

Unfortunately, Parking Eye are also issuing summonses at a staggering rate with over 1,300 writs being issued in just ONE DAY last month.

Thankfully, vehicle keepers are not ignoring the summons and are making sure that they visit forums such a Pepipoo and MSE and are putting together excellent defences to the summons. We are now seeing many cases being thrown out of court by Judges on the basis that the operator must be able to demonstrate what damage was actually done to the piece of land in question by the vehicle keeper. In other words….the parking operator must provided evidence of a “genuine pre estimate of loss” that has resulted from the alleged “trespass”.

The above scenario is identical to the allegation of “trespass” for a bailiff walking towards a debtors property and posting a notice through the door and by doing so….ignoring a Removal of Implied Right of Access notice.

If the bailiff smashed some bricks on a wall leading to the door then this can be substantiated. In the same way that if he damaged the driveway in some way. A debtor would need to be able to prove the monetary loss to the LAND on which the debtor “trespassed”.

BailiffAdviceOnline replied:

The notices that I have seen on the internet refer to the case of Knox v Anderton and where the judgment apparently states that:

“placing such a notice is akin to a closed door but it also prevents a bailiff entering the garden or driveway”

Can anyone post a copy of the judgment or provide a link?

JasonDealingWithBailiffs replied:

When bringing a claim, a better judgment to use is R. v Leroy Roberts [2003] EWCA Crim 2753 because the judgment gives a much better definition of implied right of access over a boundary of a property.

BailiffAdviceOnline replied:

I assume that the author of the Removal of Implied Right of Notice referred to on this site is one of the moderators (or poster on here)…..can somebody therefore provide a copy of of BOTH judgments. The one for Knox v Anderton AND R v Leroy. Thank you.

PS: Does anyone know who the author of the notice is? If anyone knows can they please post their name and I can then direct my question their way.

JasonDealingWithBailiffs replied:

There are lots of different authors of the notice, they all have the same following but using different choice of words. It’s not unique to this website.

I have the Knox case in a FAX but I have not OCRd it on DWB because it is redundant, it is only reiterates Lord Scarman in Morris Beardmore, but the R. V Roberts case was heard in the EWCA and is a higher authority than Knox Anderton.

This is why R v Roberts is the case used for NORIROA incursion claims. You can get the Roberts judgment easily enough.

Tmonesixnine replied:

Both these cases are about the definition of a public place. I think you need to go more into licences but anyway here they are.


Knox v Anderton

[Divisional Court]
12 November 1982
(1983) 76 Cr. App. R. 156
Lord Justice Ackner and Mr. Justice Webster

November 12, 1982

Public Place–Possession of Offensive Weapon in Public Place–Block of Estate Flats to Which Public Have Access–Whether Landing of Flats a Public Place Within Prevention of Crime Act 1953(1 & 2 Eliz. 2, c.14), s.1(4) .

By section 1(4) of the Prevention of Crime Act 1953 : “In this section ‘public place’ includes any highway and any other premises or place to which at the material time the public have or are permitted to have access, whether on payment or otherwise …”

In determining whether a place is a “public place” to which, at the material time, the public have access, justices are entitled to find that premises where *157 there are no barriers or notices restricting access, such as the upper landing of a block of flats which could be entered by members of the public without hindrance, are a public place within the meaning of section 1(4) of the Prevention of Crime Act 1953 .

Cawley v. Frost (1976) 64 Cr.App.R. 20; [1976] 1 W.L.R. 1207 considered . Edwards and Roberts (1978) 67 Cr.App.R. 228 distinguished .

[For meaning of public place, see Archbold, 41st ed., para. 25-9 .]

Case stated by Greater Manchester Area Justices sitting at Salford.

1. At about midnight on July 27, 1981, the defendant was arrested by Police Constable Peter McGawley of the Greater Manchester Police Force. The defendant was taken to a police station where later in the morning of July 28, 1981, he was charged by James Anderton, the Chief Constable of Greater Manchester police, that he at the city of Salford on July 27, 1981, without lawful authority or reasonable excuse had with him in a public place called Langworthy Estate an offensive weapon, namely, a claw hammer, contrary to section 1 of the Prevention of Crime Act 1953 .

2. The only evidence heard by the justices was that of the prosecution. This they heard on November 13, 1981, when the justices found the following facts: (a) at 11.50 p.m. on July 27, 1981, Constable Peter McGawley arrived at the Langworthy Estate Flats in Salford. A disturbance was taking place and a small crowd had gathered. (b) The police officer saw two men running along one of the upper “landings” to one of the blocks of flats. He could see that one of them had an object in his raised hand. The officer ran to the place where he had seen the men. There he discovered the defendant and a man named Philip Garbett. The defendant had a claw hammer in his hand. The men were standing on a “landing” which gives access to the flats situated on that floor. They were shouting abuse at one another. Both men resided within that particular block of flats. The defendant raised the hammer in an aggressive manner and shouted “Let me get the bastard.” This was after the police officer had placed himself between the two men. The defendant then attempted to attack the man Garbett. At this stage the officer managed to take the hammer from the defendant and arrested him. (c) The plans produced accurately represent the Langworthy Estate, the landings in question and the surrounding district at the time they were drawn. The surrounding district was steadily being demolished and so subject to constant change. (d) There were in the region of 420 flats on the Langworthy Estate housing in the region of 1,500 people. (e) At the rear of the estate, that is to the north of the estate, there were main railway lines. Until recently there was a bridge for the use of pedestrians over the railway lines. A motorway was being constructed running parallel with the railway. Whilst this construction had been taking place the pedestrians’ bridge had been removed. There was no evidence as to whether the bridge would be replaced when the motorway workings were complete. Before the bridge was demolished it was used by the inhabitants of the estate to walk to the main shopping precinct in Salford. The bridge was also used by persons other than those residing on the Langworthy Estate to get from the south side of the railway to the north side and onwards to the shopping precinct. To do so many of these people would walk through the Langworthy Estate. No attempt was made to stop them. There is a community centre within the Langworthy Estate. The centre was used by both residents of the estate and non-residents. There were notices on some of the buildings at the entrance to the estate which read “Parking of vehicles above 10 cwt. on the estate is Prohibited, Access is restricted to tenants and their visitors only.” They were not official signs in the sense of complying with the Road *158 Traffic Acts. (f) The Langworthy Estate was the property of the local authority. (g) There was nothing to prevent any member of the public from entering the estate. There was nothing to stop members of the public from entering the stairways of the blocks of flats. There was no barrier to prevent members of the public walking along the landings which give access to the individual flats. There were no doors to the stairways or landings which were open to the atmosphere. There were no notices to suggest that there was any restriction of access to the landings and stairways or indeed to the whole estate except those notices mentioned in relation to motor vehicles.

3. At the end of the prosecution’s evidence Mr. Peter Mercer, the solicitor acting for the defendant, submitted that there was no case to answer. He contended that the place where the incident had occurred was not a public place. He suggested that the criterion for deciding whether a place is a public place was that laid down in Elkins v. Cartlidge [1947] 1 All E.R. 829 . That approved the earlier case of Collinson (1931) 23 Cr.App.R. 49 . The criterion was whether or not at the relevant time the public were being invited to use the place. It was submitted that the public were not invited into either the Langworthy Estate, or more particularly on to the stairs and landing. The stairs and landings were private property of the council, who gave certain limited rights of access and passage simply to tenants of the estate and their visitors. The stairways and landing could be severed from other parts of the estate in that their sole use was to gain access to the flats, and not to any public facility. Landings and stairways giving access to flats alone could be distinguished from recent case law requiring one to have regard to an area as a whole, rather than separate parts. Part of the area of the Langworthy Estate, namely the flats themselves, was undoubtedly private property and the landings and stairways should be considered as an adjunct to that.

4. Mr. Kenneth Smith, the solicitor for the prosecutor, contended that the landings to the Langworthy Estate flats were a public place. In support of his contention Mr. Smith submitted: (1) As the plans (produced) showed the flats were all of a uniform construction, there being four floors in all, lettered A to D. (2) There were numerous stairways giving access to each level and people were able to move freely from one floor to the next. (3) At ground floor level there was a walkway or pavement serving all ground floor flats. (4) That was repeated at each of the upper levels, the only difference being there was a balustrade to prevent persons falling over the edge. They were, in effect, therefore pavements in the sky. (5) It followed from the layout described above that persons were able to walk considerable distances along the pavements. (6) Until recently there was a footbridge at the rear of the flats used by the public to cross over the railway to give access to Eccles New Road in one direction and the shopping precinct in the other. That brought people who were not tenants through the flats complex. (7) There was a community centre next to the superintendent’s house not restricted to use by tenants of the flats. (8) Apart from the vehicular control notices displayed at the entrances from Eccles New Road no steps have been taken to prevent access by the public which the above points at 6 and 7 show has in fact been exercised. (9) The open spaces and roadways at the front and rear of the flats and the pavements at the ground floor must therefore be found to be public places within the definition required by this Act. (10) The authorities, to which the justices were referred, tend to indicate that complexes should be viewed as a whole rather than be split up into separate segments to be given separate consideration. On this basis since there was nothing to prevent persons going up to the higher levels should they choose, the pavements in the sky fall within the scope *159 of the Act. (11) They are in many ways no different from cul-de-sac access which would normally be exercised by a limited number of people.

5. The justices were referred to the following cases: Kane [1965] 1 All E.R. 705 ; Cawley v. Frost [1976] 1 W.L.R 1207; [1976] 3 All E.R. 743 ; Anderson v. Miller (1964) 64 Cr.App.R. 178 ; Edwards and Roberts (1978) 67 Cr.App.R. 228 ; Elkins v. Cartlidge [1947] 1 All E.R. 829 and Collinson (1931) 23 Cr.App.R. 49 .

6. The justices were of the opinion there was no restriction on members of the general public entering the Langworthy Estate. That the estate had to be considered as a whole, with the exception of the actual dwellings. That they were entitled to have regard to the mischief at which section 1 of the Prevention of Crime Act 1953 was directed. The justices were of the opinion that the place where this incident took place was a public place.

7. Having announced their opinion and that they therefore rejected the submission of no case to answer, the defendant changed his plea to one of guilty. After hearing about the defendant’s personal circumstances they ordered that he pay a fine of £40 and £10 toward the costs of the prosecution.

The defendant appealed.

8. The question for the opinion of the court was were the justices right or wrong in finding that the landings to the Langworthy Estate flats in Salford were a public place.

J. M. Shorrock for the defendant. N. M. Simmonds for the prosecutor.

Ackner L.J.:

I will ask Webster J. to give the judgment of the court.

Webster J.:

This is a defendant’s appeal by way of case stated by Justices for the County of Greater Manchester sitting at Salford in respect of their adjudication on November 13, 1981, whereby they convicted the appellant of having, on July 27, 1981, without lawful authority or reasonable excuse with him in a public place called Langworthy Estate an offensive weapon, namely, a claw hammer, contrary to section 1 of the Prevention of Crime Act 1953 .

It was not disputed before the justices that on that date the defendant, when standing on an upper landing of a block of flats on the Langworthy Estate in Salford, had a claw hammer in his hand, and that this was an offensive weapon. The only issue raised before the justices, which was raised at the close of the prosecution evidence, was whether that landing was a public place within the meaning of that expression in the Prevention of Crime Act 1953 . The justices rejected the submission made on behalf of the defendant that it was not a public place, whereupon the defendant, who had previously pleaded not guilty to the charge, changed his plea and pleaded guilty. The question for the opinion of this court is whether the justices’ finding that the landings to the Langworthy Estate flats in Salford are a public place was wrong in law.

Before considering the facts, it is convenient to note the definition of the expression “public place” in section 1(4) of the Prevention of Crime Act 1953 , which is that: “In this section ‘public place’ includes any highway and any other premises or place to which at the material time the public have or are permitted to have access, whether on payment or otherwise …” This definition of “public place” for the purposes of section 1 of the Prevention of Crime Act 1953 is in precisely the same terms as its definition for the purposes of the Public Order Act 1936 , as amended by section 33 of the Criminal Justice Act 1972 ; although for the purposes of the Public Order Act 1936 there is also a definition of the expression “private premises.”

*160

The facts found by the justices, so far as material, are as follows. The Langworthy Estate is the property of the local authority. There are in the region of 420 flats on the estate housing approximately 1,500 people. Plans of the estate produced to the justices showed that the flats are all of a uniform construction, there being four floors in all in each particular block with, in each block, numerous stairways giving access to each level so that people are able to move freely from one floor to the next. At ground floor level there is a walkway or pavement serving all ground floor flats which is repeated at each of the upper levels, the only difference between the upper and the ground floor levels being that there is a balustrade on the upper levels to prevent persons falling over the edge. Until the demolition of a nearby bridge shortly before the hearing before the justices, many people, not being residents on the estate, used to walk through the estate in order to reach a shopping precinct on the other side of the bridge from the estate, and no attempt had been made to stop them doing so. There is a community centre within the estate used both by residents of the estate and by non-residents. There is nothing to prevent a member of the public from entering the estate, there is nothing to stop members of the public from entering the stairways of the blocks of flats, there is no barrier to prevent members of the public walking along the landings which give access to the individual flats, and there are no doors to the stairways or landings, which are open to the atmosphere. There are no notices to suggest that there is any restriction of access to the landings and stairways or to the whole estate except that there are notices on some of the buildings at the entrance to the estate which read “Parking of vehicles above 10 cwt. on the estate is Prohibited, Access is restricted to tenants and their visitors only.”

Mr. Shorrock’s submission on behalf of the defendant amounted to a challenge of the justices’ decision that the landing was a public place on two grounds, the first that the justices expressly misdirected themselves and the second that their decision was perverse, that is to say a decision which no reasonable justices, properly directing themselves, could reach upon the facts found by them.

Mr. Shorrock submitted that the justices expressly misdirected themselves in expressing the opinion “that the Estate had to be considered as a whole, with the exception of the actual dwellings.” We do not regard that as a misdirection. In Cawley v. Frost (1976) 64 Crim.App.R. 20; [1976] 1 W.L.R. 1207 , where the question was whether a particular part of a football ground was a public place for the purposes of sections 5 and 9(1) of the Public Order Act 1936 , Lord Widgery C.J. at pp.24 and 1212 respectively said: “Prima facie you look at the whole establishment and you are not … deterred from doing that merely by finding that certain portions of the establishment have been denied to the public for one reason or another.” Mr. Shorrock also, as we understand him, submitted that the justices misdirected themselves when expressing the opinion that they were entitled to have regard to the mischief at which section 1 of the Prevention of Crime Act 1953 is directed; but there is abundant authority to support that direction. We cannot, therefore, conclude that the justices expressly misdirected themselves.

The question remains whether their decision was perverse.

In support of his contention that it was, Mr. Shorrock relied, primarily, on two points. He submitted that there is no evidence from which the justices could have inferred that members of the public had an implied licence to go on to the landings, and he relied upon a passage in the judgment of Bridge L.J. (as he then was) in Llewellyn Edwards and Eric Roberts (1978) 67 Cr.App.R. 228 , 231 , where Bridge L.J. said: “… it seems to this Court that it is quite impossible to hold that the expression ‘public place’ can be construed as extending to the front gardens of *161 private premises simply on the footing on which the learned judge relied that members of the public have an implied licence to pass through those private gardens in order to obtain access to the front doors of private premises if they have some lawful occasion for so doing. It is not qua members of the public that they thus enjoy access, it is qua lawful visitors.”

As to this contention, however, it is to be remembered that the definition of a public place contains two distinct alternative elements, namely, premises or a place to which at the material time “the public have … access,” and premises or a place to which at the material time “the public … are permitted to have access.” For reasons which will later become apparent in this judgment, it is clear to us that the justices in the present case decided that the landings were a public place for the first, not the second, of those two reasons, namely, because they were premises or a place to which at the material time “the public have … access.” They made and purported to make no finding that the public had any implied licence or permission to go on to the landings and they made no reference to any such licence or permission in the reasons given for their decision. We, therefore, reject the first of Mr. Shorrock’s points in support of his contention that their decision was perverse.

His second point was a more broad one, namely, that it defied common sense to regard the landings as a public place; and in support of that contention he relied upon the decision in Llewellyn Edwards and Eric Roberts ( supra ) and upon a decision of Judge Nance in Heffey [1981] Crim.L.R. 111 . The landings, he submitted, must be just as much a private place as were the front gardens in Edwards and Roberts ; but as to that submission it has often been said that each case has to be decided upon its own particular facts, and in that case there was a gate which presumably separated the garden from the public road or pavement; see Bridge L.J. quoting the trial judge: “‘Persons, members of the public, are by implication permitted by the owner/occupier of the dwelling house to approach that dwelling house via the garden and gate, the steps, and up to the front door ….'” It is true that in Heffey ( supra ) Judge Nance upheld a defence submission that the third floor landing of a block of council flats was not a public place; but there is no indication whatsoever in the short report of that decision as to the particular facts in that case.

We do not, therefore, think that either of those two decisions enable Mr. Shorrock to show that the decision of the justices in this case, on the facts before them, was one which no reasonable bench of justices properly directing themselves could have reached. It seems clear that the first stage in the reasoning or fact-finding process which led to that decision was their “opinion” (which is really a finding) that there was no restriction on members of the general public entering the Langworthy Estate.” That finding was, in our view, wholly consistent with the evidence as to the use of the estate by persons not residing there and as to such notices as there were purporting to restrict access to it. Had the question arisen, therefore, the justices would have been perfectly entitled, in our view, to have decided that the estate itself was a public place as, by inference, they have done. At what point, short of the front door of the individual flats, can it be said as a matter of inevitable inference from the facts found to have ceased to have been a public place? And in particular can it be said, as a matter of inevitable inference from those facts, to have ceased to have become a public place before the landings are reached? In our view there is no inevitable inference that it ceased to become a public place at any point before the landings are reached, in view of the justices’ findings that there was nothing to stop members of the public from entering the stairways of the blocks, that there was no barrier to prevent members of the public walking along the landings which give access to the *162 individual flats, that there were no doors to the stairways or landings which were open to the atmosphere and that there were no notices to suggest that there was any restriction of access to the landings and stairways or indeed to the whole estate except the notices posted on some of the buildings at the entrance to the estate to which we have already referred.

For all these reasons we would, slightly rewording the question for the opinion of this court, answer it by saying that the justices have not been shown to have made any error of law in finding that the landings were a public place and we, therefore, dismiss this appeal.


Regina v Roberts

Court of Appeal
20 October 2003
[2003] EWCA Crim 2753
[2004] 1 W.L.R. 181

Mantell LJ , Elias and Jack JJ
2003 Sept 1; Oct 20

Crime–Offensive weapon–Article with blade–Defendant charged with having bladed article in public place–Defendant in own front garden–Judge directing jury that defendant’s garden “public place”–Whether “public place” including private land adjacent to areas where public had access– Criminal Justice Act 1988 (c 33), s. 139(1) (7)

The defendant was arrested in the front garden of his house, which was no more than a metre deep, following a struggle in the course of which he been dragged from a neighbour’s garden across a dividing wall. A search revealed that the defendant had a lock-knife in his trouser-pocket. He was tried on an indictment charging, inter alia, having a bladed article with him in a public place contrary to section 139(1) of the Criminal Justice Act 1988 1 . At the end of the prosecution case the defence submitted that there was no case to answer because the front garden was not a “public place” within the meaning of section 139(7) of the 1988 Act. The judge, while accepting that the front garden was not a place where the public was “permitted access” within section 139(7), nevertheless held that the term “public place” was capable of embracing not merely land to which the public was permitted access but also land adjacent to areas where the public had access, provided that the harm against which section 139 was designed to provide protection could still be inflicted from such a place. Since it would have been possible for the defendant, standing in his front *182 garden, to use the knife against a passing pedestrian he rejected the submission of no case to answer and directed the jury that as a matter of law the front garden was a public place. The defendant was convicted.

On the defendant’s appeal-

Held , allowing the appeal, that the term “public place” in section 139(7) of the 1988 Act did not include land adjacent to areas where the public had access merely because the harm against which the section was designed to provide protection could be inflicted therefrom; and that, accordingly, the judge ought to have upheld the submission of no case to answer and had not been entitled to direct the jury that the front garden was a public place (post, paras 5 – 6 , 9 ).

The following case is referred to in the judgment of the court:

R v Edwards (Llewellyn) (1978) 67 Cr App R 228, CA

The following additional cases were cited in argument:

Bates v Director of Public Prosecutions The Times, 8 March 1993, DC

Fellowes v Director of Public Prosecutions The Times, 1 February 1993, DC

Knox v Anderton (1982) 76 Cr App R 156, DC

Williams (Richard) v Director of Public Prosecutions (1992) 95 Cr App R 415, DC

No additional cases were referred to in the skeleton arguments.

APPEAL against conviction

On 17 June 2002 in the Crown Court at Harrow before Judge Mole QC and a jury, the defendant, Leroy Lloyd Roberts, was convicted, on count 1, of affray and, on count 2, of having a bladed article with him in a public place contrary to section 139(1) of the Criminal Justice Act 1988 , for which he was sentenced on 15 July 2002 to a community punishment order of 40 hours concurrent on each offence.

The defendant appealed against conviction on the grounds, inter alia, that (1) the judge had erred in rejecting the defence submission that there was no case to answer on count 2 because the defendant’s front garden, where the offence was alleged to have been committed, was not a “public place” within the meaning of section 139(7) of the 1988 Act, in holding that the term “public place” was capable of embracing not merely land to which the public was permitted access but also land adjacent to areas where the public had access, provided that the harm against which section 139 was designed to provide protection could still be inflicted from such a place, and in directing the jury that as a matter of law, the defendant’s front garden was a public place for the purposes of section 139; and (2) the erroneous direction on count 2 could have misled the jury as to the availability on count 1 of the defence of using reasonable force to evict a trespasser from his front garden.

The facts are stated in the judgment of the court.

Representation

Tony Ventham (assigned by the Registrar of Criminal Appeals) for the defendant.

Alisdair Smith for the Crown.

Cur adv vult

MANTELL LJ

handed down the following judgment of the court.

1 On 17 June 2002 in the Crown Court at Harrow Leroy Lloyd Roberts was convicted of two offences, affray (count 1) and having a bladed article in *183 a public place (count 2). On 15 July 2002 he was sentenced to a community punishment order of 40 hours concurrent for each offence. He now appeals against conviction by leave of the single judge.

2 The facts were as follows. On Sunday, 24 June 2001 at 9.30 p m the police came to the defendant’s home after receiving an emergency call from a distressed child at that address, complaining that her parents were fighting. The police were met with abuse. They withdrew. More police arrived. Sergeant Rutherford went up to the house to be told in no uncertain terms by the defendant, to go back. The police officer then tried to enter the property but was pushed away. He began struggling with the defendant and both men fell over a wall separating the front garden from the one next door.

3 The defendant was next seen in his neighbour’s front garden, holding a car tyre which he swung at Police Constable Lawrence, who told him to put it down. When the defendant failed to do as he was told, PC Lawrence hit him with his baton. The defendant then was brought to the ground, pulled over the garden wall, handcuffed and taken to Kilburn Police Station. There, he was searched and found to have a lock-knife in his trouser-pocket.

4 At the end of the prosecution case, a submission was made by the defence, inviting the judge to withdraw count 2 from the jury on the ground that the defendant’s front garden was not a public place within the meaning of section 139(7) of the Criminal Justice Act 1988 , which, as far as material, provides: “In this section ‘public place’ includes any place to which at the material time the public have or are permitted access, whether on payment or otherwise.” The judge accepted that the front garden was not a place where the public was permitted access. In our view, that was plainly right and is consistent with the decision of the Court of Appeal in R v Edwards (Llewellyn) (1978) 67 Cr App R 228 , which concerned a similarly worded provision. As Diplock LJ pointed out, at p 231, persons such as the postman or milkman, who have an implied licence to enter the garden, do so not as members of the public but rather as lawful visitors. None the less, the judge held that the front garden of this particular property, a Victorian terraced house, was a public place. The garden was no more than a metre wide: it was possible for the defendant to sit on the windowsill of the front room and put his feet on the top of the garden wall. The judge held that, having regard to the purpose of this particular legislation, a public place was not merely land to which the public was permitted access but might also include land adjacent to areas where the public had access, provided that the harm against which the section was designed to provide protection could still be inflicted from such a place, and here it was perfectly possible for the defendant, standing in his own garden, to use the knife against a passing pedestrian.

5 In our judgment, the judge was in error to construe “public place” in this way. It seems to us there are considerable difficulties in such a construction. For example, as the judge recognised, it would mean that if there were a fence of sufficient height to prevent the householder from reaching from his garden into the road, then the whole of his garden would be private, and none of it would constitute a public place. If, however, the fence were removed, and replaced by a low wall, such as there was in this case, then the garden would become a public place. Again, if a house abuts the street, it is difficult on the judge’s analysis to see why part of a room in the house itself would not be a public place if the occupier could lean *184 through a window and use the bladed weapon to cause harm to passers-by. In our view, such a construction could not possibly be correct.

6 Accordingly, we consider the judge was not entitled to direct the jury that the front garden was a public place; on the contrary, he ought to have upheld the submission of the defence that in the circumstances there was no case to answer on the second count.

7 That ruling did not, of course, impact directly upon the charge of affray. However, the defendant submits that the defective ruling in relation to the second count affects that charge also. Essentially, the argument is as follows: the judge in his summing up explained to the jury that there were two potential defences to the charge of affray. One was that the defendant was using no more than reasonable force to evict somebody trespassing on his property. It is submitted that notwithstanding that the direction in relation to that defence was satisfactory in itself, nonetheless a jury may have been confused in that the garden was to be regarded as private property in relation to count 1 and as a place to which the public had access when they were considering count 2.

8 We reject the submission. The judge dealt with the two counts separately and emphasised at the end of his summing up that the jury must consider the evidence in relation to each count quite separately. We are quite satisfied that on a fair reading of the summing up there would be no possibility of confusion in the minds of the jury, as to the potential applicability of the defence to the affray charge of using reasonable force to remove a trespasser, notwithstanding that the garden was treated as a public place in the context of the second count.

9 Accordingly, we quash the conviction in relation to the second count, but allow the conviction on the count of affray to stand. It follows that the sentence is unaffected.

Tmonesixnine replied:

butterfingers wrote:

With regards the last point of your post, I would argue that the advantage of the notice over the “door slam” is twofold.

1.By sending the notice, you eliminate any further costs for visit fees.

Not sure about this. Certainly when it comes to mortgages (don’t know for sure about other types of bailiff visit) the costs are contractual. That is you have to pay the regardless. Also the cost is often for an attempted visit rather than an actual successful visit.

2.If bailiffs were to visit 10 vulnerable debtors who had been advised to “slam the door”, at least one (& probably more) would fold under the pressure placed upon them by the bailiff. Sending the notice saves the vulnerable debtor from the confrontation.

Yes I mostly agree with this. Really its about people knowing their rights.

However, to put a question to you. How is the Notice superior to a sign saying “no trespassing”? Surely if the bailiffs have authority to enter your land the implied rights are irrelevant, if they don’t they are committing trespass irrespective of any notice.

JasonDealingWithBailiffs replied:

My 2p, the sign no trespassing may be different law because I have not seen it in any case law relating to bailiff redress.

The certificate is a license to enter without permission, but is revocable easily enough by telling the bearer to leave. However if the bailiff has started making the levy, then case law says the bailiff can remain on the premises. This is why the use of the notice is popularised.

The law may change next year with the introduction of a warrant to enter and search premises, but no regulations have been created to set the application procedure for it. It still might not become law. 28 & 29 of the Taking Control of Goods Regulations 2013.

JasonDealingWithBailiffs replied:

Tmonesixnine, where did you get the Knox Anderton judgment from?

BailiffAdviceOnline replied:

Thank you very much indeed. In fact, since posting my request somebody who had been viewing this thread send me a PDF copy of Knox v Anderton. If I can find out how to do it..I will see if I can upload a copy. Once again, thank you.

BailiffAdviceOnline replied:

JasonDealingWithBailiffs wrote:

There are lots of different authors of the notice, they all have the same following but using different choice of words. It’s not unique to this website.

I have the Knox case in a FAX but I have not OCRd it on DWB because it is redundant, it is only reiterates Lord Scarman in Morris Beardmore, but the R. V Roberts case was heard in the EWCA and is a higher authority than Knox Anderton.

This is why R v Roberts is the case used for NORIROA incursion claims. You can get the Roberts judgment easily enough.

What are you talking about !!!

Knox v Anderton is NOT “redundant” and if you care to read it correctly it was considered by the COURT OF APPEAL in 1993 !!!

Tmonesixnine replied:

Yeah I’m not sure these “public place” cases are of great assistance to anyone.

The bailiff are not (as far as I know) suggesting that the reason they can ignore the notice is because a garden is a public place. What is in question is whether there is an express or implied licence for bailiffs to enter a garden and whether or not that is revocable by a notice or anything else.

butterfingers replied:

Spot on

BailiffAdviceOnline replied:

Taking BOTH cases into consideration the Court of Appeal (in both cases) found that the properties in question were ones where the public had access.

On the relevant matter of “Implied Licences” the Justices in the Court of Appeal case of Knox v Lambert:

“Made and purported to make no finding that the public had any implied licence or permission to go on to the landings and they made no reference to any such licence or permission in the reasons given for their decision.

Of even more significance is the comment In the Court of Appeal case of R V Leroy Roberts where the Justices referred to the Court of Appeal case of R v Edwards and Roberts [1978] and where Lord Justice Diplock pointed out that:

“Persons such as the postman or milkman who have an implied licence to enter the garden do so not as members of the public but rather as lawful visitors.

Accordingly, if a postman or milkman has an “implied licence” as “lawful visitors” then it cannot be clearer that a bailiff enforcing a court warrant on behalf of a government agency MUST also be a “lawful visitor” and would therefore have an “implied licence” to enter the garden.


PS: The PDF copy of Knox v Anderton that was emailed to me earlier this evening is from Westlaw.

There is nothing further that I will add suffice to say that it would seem that the various authors of the Removal of Implied Right of Access Notices do not appear to have properly read both Judgments before recommending them to debtors.

JasonDealingWithBailiffs replied:

Someone’s been smoking the wrong stuff.

butterfingers replied:

TT-In the past, you have chastised the notices because they would ultimately lead to AOE orders (in the case of council tax)

Are you now changing your stance and claiming that this is not really the case?

JasonDealingWithBailiffs replied:

This guy has. http://www.legalbeagles.info/forums/sho … post388035 [ http://www.legalbeagles.info/forums/showthread.php?44576-If-a-bailiff-is-asked-to-leave-before-they-have-levied-do-they-have-to&p=388035#post388035 ]

BailiffAdviceOnline replied:

I totally agree with you, Tmonesixnine. Nether of these legal cases are of any assistance whatsoever and I would question whether the various authors bothered to even read both Judgments. Yet again, it is important if anyone is quoting case law to read the judgments for themselves to ascertain whether the information that they are “relying”upon is accurate.

Regarding your second comment…It is my belief that bailiffs can ignore the notices on the basis of the the Court of Appeal case of R v Edwards and Roberts [1978] where Lord Justice Diplock pointed out that:

“Persons such as the postman or milkman who have an implied licence to enter the garden do so not as members of the public but rather as lawful visitors.

As I mentioned above, if a postman or milkman has an “implied licence” as “lawful visitors” then common sense alone must dictate that a bailiff enforcing a court warrant on behalf of a government agency MUST also be a “lawful visitor” and would therefore have an “implied licence” to enter the garden.

JasonDealingWithBailiffs replied:

Unless that “implied right” is withdrawn.

butterfingers replied:

Factamondo

Plus private bailiffs do not “enforce court warrants”

They don’t even have court paperwork in their possession when they visit debtors in the case of council tax-Just written permission from the council to attend-Akin to a parent giving written permission for a child to be excused PE really

Tmonesixnine replied:

JasonDealingWithBailiffs wrote:

Unless that “implied right” is withdrawn.

My feeling would be sometimes the bailiffs operate under an implied license (ie implied permission to enter, implied by the court or perhaps the owner themselves by virtue of a contract (say a mortgage condition))

Other times they operate under an express right granted either by the court or by statute or perhaps common law powers.

The real question is what can be revoked and what can’t, and I don’t think the answer is simple.

butterfingers wrote:

TT-In the past, you have chastised the notices because they would ultimately lead to AOE orders (in the case of council tax)

I’ll chip in on this one. If you can revoke an implied licence I’m not sure it will get you too far. There are other ways on enforcing judgments including 3rd party debt order ans AoE. The bailiffs are more an intimidation process rather than an actual enforcement method. Once they know you aren’t going to be intimidated (eg by receiving a notice in the post) it might well speed up the process and get you closer to other methods of enforcement.

Its worth having a long think about why you are using the notice.

If its to try to claim damages or fees don’t bother because you aren’t going to get anywhere with that.

If it is an attempt to hold the bailiffs liable in crime or tort, don’t bother either because firstly trespass isn’t a crime and tort will be difficult to sustain notice or no notice.

If it’s to prevent fees being charged to your account, don’t bother because I think they’ll charge you anyway.

If it’s to delay, obfuscate or frustrate the bailiff with an end to preventing them from visiting as frequently or move on to other methods then I can’t see it will do much harm, as long as you accept that it’s legal framework is not conclusive and it could accelerate other enforcement methods which would be even more undesirable.

JasonDealingWithBailiffs replied:

AFAIK the only times the notice can be ignored is.

1. Warrant of entry under Section 2 of the Rights of Entry (Gas and Electricity Boards) Act 1954

2. A search warrant under Section 8 of the police & Criminal Evidence Act 1984

3. From next year, a warrant under section 28 of the Taking Control of Goods Regulations 2013.

4. A debt owed to the king. – HMRC debts adopted from Semaynes Case.

Point #3 above does not have a court procedure for making the application yet, so it might not come into force.

Points #1 & 2 both have a prescribed court procedure requiring the applicant to stand on oath before a JP to explain his reason for applying for the warrant.

butterfingers replied:

I would agree with most of that

Strangely enough, when I’ve posted it on MarstonsCAG in the past, it’s been deleted

I would disagree with your opinion on whether it prevents fees being added to your account. If you send the bailiff company a notice, they will not turn up on your doorstep thus you are saving on visit fees as well as potential bigger fees as a result of the initial visit (I have sent 2 notices on behalf of 2 different people to 2 separate bailiff firms for council tax & neither have visited the properties in question.)

Even if (for arguments sake) the bailiff considered the notice worthless, he would be aware that the debtor is a “fighter” so would be more inclined to pick the soft option/easy target ie the single mother with 2 or 3 kids, not a pot to piss in etc, etc.

BailiffAdviceOnline replied:

butterfingers wrote:

TT-In the past, you have chastised the notices because they would ultimately lead to AOE orders (in the case of council tax)

Are you now changing your stance and claiming that this is not really the case?

Certainly not !!! The Notices are defective and rely upon case law that is neither relevant or helpful.

There is a large increase in applications for Attachment of Earnings and I have no doubt at all that such applications with increase significantly when the new fee scale is implemented on 6th April. Already we have situations where local authorities are struggling with rental and council tax arrears following the “bedroom tax” and there are more reports this week of queues forming outside of Magistrate Court with debtors wishing to object at a Liability Order being imposed.

Further meetings were held at MOJ approx 2 weeks ago and there will be more bad news coming shortly regarding the fees and this is why I constantly try to stress that debtors MUST address arrears of council tax at the earliest opportunity. If they ignore the initial letter and have a bailiff attending the debt will increase by over £350 !!!

With parking tickets…if applicable….make representation (which is free).

With court fines the current position is that if you cannot afford to pay then approach the court straight away and if you are in receipt of benefits, they will allow repayment at the rate of just £5 per week.

I am seriously worried at what the impact that the new fee scale will have on

Tmonesixnine replied:

This isn’t really a question of law. Its more about what each individual company / councils policy and practice is. Every case is different so its not always useful to go on past experience. Also it varies as to whether being “difficult” makes you more or less likely to be targeted. Sometimes it down to someone’s decision, other times a computer algorithm decides what type of enforcement action is cost effective etc.

BailiffAdviceOnline replied:

My last post.

There is nothing further to be gained by posting any more. The public have a choice whether to use such notices or not and they can decide for themselves whether the Ministry of Justice really have settled a case as claimed by DWB.

Tmonesixnine replied:

In my opinion it’s not just about if the MoJ have settle a case. Maybe they have, people settle cases all the time for lots of different reasons. What we need to know is what was the basis of the settlement and the full facts of the case.

Say a bailiff, assaulted someone for no reason, had a defective warrant and out of date licence and ignored a notice there would be no surprise if they settled a claim. That’s why its pretty difficult to take “success stories” on face value unless we have all the facts and all the documents in front of us. Sometimes I can see these documents are privileged or confidential but if they aren’t or if they can be redacted to an extent that they can be posted or if confidentiality can be waived they should be posted for sure.

BailiffAdviceOnline replied:

The most experienced person in the country regarding bailiff law is John Kruse and he has written extensively on bailiffs for many years and his books are readily available on Amazon. He also provides advice to the Government on the forthcoming Tribunals Courts & Enforcement Act that is is expected to be implemented on 6th April 2013. He is also a specialist adviser to a London borough CAB.

On another thread I had mentioned that John Kruse had commented that the Removal of Implied Right of Access Notices are “defective”.

On that thread I have been asked to provide the source. As always, wherever possible I will provide EVIDENCE.

In April this year John Kruse published a Newsletter for CAB members which highlighted the progress of the TCE Bill (mentioned above). In that same Newsletter he commented on the Rossendales legal case. The following is a TRUE copy of that part of John Kruse’s Newsletter:

(This case was reported initially in CIVEA Enforcement News, April 2013- I have borrowed the transcript and expanded upon it with my own comments and observations)

This interesting case examines the strategy of serving a “Notice of removal of implied right of access” which is used increasingly by debtors to prevent seizure of their goods. I advised a bailiffs’ company on the issue last year and it was in need of judicial attention.

Mr Thornton owed council tax arrears and a liability order was issued against him. Rossendales were appointed to collect the debt. Thornton downloaded from the internet a “Notice of removal of implied right of access” which he served by recorded delivery post on Rossendales, warning that if they tried to call at his home to enforce liability orders, they would be liable for trespass. By ignoring the notice and by visiting the house, the notice stated that the bailiffs would be accepting that they would be liable for a penalty for “breach of contract” of £750. Despite the threat of criminal proceedings for ignoring the notice, Rossendales continued to enforce- they wrote to Mr Thornton and then visited the property. Accordingly, a claim for damages for trespass was then issued in the county court for the amount mentioned.

On his claim form Mr Thornton claimed £750 damages:

• For breach of the contractual terms incorporated in the notice;
• for trespass; and,
• for attending the property without a copy of the liability order.

The bailiffs defended the claim and it was allocated to the small claims track. At the hearing in January this year the claimant relied on breach of his notice and made reference to the case of Davis v Lisle [1936] as authority for his right to revoke the bailiffs right to be on the premises. The bailiffs defended their actions on the basis of the Council Tax (Administration & Enforcement) Regulations 1992.

The district judge rejected the contention that service of a notice could create a contract between the parties. There was no consideration between the debtor and bailiff and terms clearly could not be imposed upon Rossendales without their consent. Moreover, even if there had been a trespass, the court had the function of assessing the damages based on the evidence presented. No predetermined penalty could be imposed by the claimant- and certainly not such a disproportionate one. The courts are always very suspicious of ‘penalty clauses’ which seek to exact a charge from a party which is not a genuine pre-estimate of the likely damages to be experienced and which instead aims to act as a deterrent. If Rossendales trespassed on Mr Thornton’s property by calling to deliver a notice, the trespass would have been negligible and the damages nominal. As a result, the court claim failed and Mr Thornton had to pay the bailiffs’ costs.

Commentary

The case is a useful decision on these particular “Notices of removal of implied right of access.”. They are a defective idea and they cannot have the effect claimed for them.

butterfingers replied:

great-We’ve established that people can’t implement “penalty clauses” onto other people or bodies. We knew this anyway as none of us pay any notice to forbid parking on private land.

JK does NOT claim that the notices are ineffective in terms of stopping bailiffs attending.

Whilst TT would no doubt love to prove Jason wrong on this issue, she is sadly wasting her time. The notices DO work for mickey mouse debt collectors collecting council tax. These people do NOT have the authority of the courts, they have the same powers as any other member of the public-No more. If a bailiff collecting council tax or parking fines ignores the notice, he/she is no longer acting in the execution of his/her duty.

TT your obsession with proving Jason wrong is having a detrimental effect of the fight against bailiffs & is not helped by your group of mother hens (WD et all) hanging onto your every word.

You don’t agree with Jason-We get the message. FMOTL are misguided we got that one too. Why don’t you just concentrate your efforts on helping debtors instead of attempting to dissect every bit of advice that Jason gives? Do you not see the damage that you are causing when you have scum like Bristow & Sutor quoting your threads?

BailiffAdviceOnline replied:

butteringers.

A very odd reply and I would like the opportunity to explain why.

The Rossendales judgments referred to in this thread has been written about extensively. John Kruse’s article is from April this year. The case was also heavily reported by CIVEA and there are various references to it in trade magazines and the IRRV.

John Kruse had read the court transcript of the case and so have I.

If you care to look at the thread regarding a Form 4 case it had managed to go “off topic” and TWICE on the forum today Jason asked me to provide some evidence where John Kruse had stated that the notices were “defective”. As always, I will provide evidence if it is available and that this exactly what I have done today.

I would have been “damned” by Jason if I failed to provide it and “damned” by you for doing so.

I do not love to prove anyone wrong. I merely provide EVIDENCE where necessary.

On the subject of Bristow & Sutor YOU will know as well as I do that I am very likely the most fiercest critic of Bristow & Sutor and in particular, for the way in the way that they just “happen” to be the bailiff company that is constantly charging a “Head H” fee to debtors accounts. This is despite the LGO ruling.

I am pleased as well that “behind the scenes” District Auditors are now investigating bailiff charges and “Head H” fee is one such fee being looked at. At present such complaints are for London boroughs and more are following quickly behind.

Debtors have a choice to display notices but they should be made aware as well what could happen if they try to issue a claim in the County Court for trespass ( if the bailiff ignores the notice) and they should know as well of the opinion of the countries expert on bailiff law (John Kruse) on these notices….which is that they are a a “defective idea”.

butterfingers replied:

Yes-I did notice the irony of them picking up on your attitude to the notice whilst you are fierce in your criticism of their Head H policy.

They have the added dimension of actually quoting the LGO in cases where it suits them but dismiss her as not relevant in law when the LGO statement doesn’t suit them. That’s Bristow & Sutor for you though. I tend to pay no attention of anything they say as it is normally garbage anyway.

As I read JK’s quotes, he does not say that a notice will not stop a bailiff, he says it is defective in obtaining money for trespass. As I said, we know this because we don’t pay parking fines when we get tickets for parking on private land.

I am very interested in speaking with district auditers. Recent research has unearthed some very interesting concerns.

I have no problem with people being wary of the notice BUT what harm can it do? It costs the price of a postage stamp to send

BailiffAdviceOnline replied:

Mark, I have no intention of going off the subject of this thread but I would just mention that the Head H fee is of very serious concern and in particular; the frequency in which it is charged by Bristow & Sutor in particular and sadly, there are further serious issues with some bailiff companies who for the past year or so have been charging a “similar fee” ( which they refer to as Schedule 8 fee) when enforcing unpaid PCN’s. The culprits at present appear to be JBW and Newlyn and yet…this fee has recently been heavily criticised in a Local Settlement Report from the LGO. This fee is being also being looked at by the District Auditor.

Making a complaint via the District Auditor is very complex indeed and the present ones (or at least the ones that I know of) are London based and have been submitted by professional bodies with excellent attention to detail and include multiple examples of wrongdoing as evidence. For your information, there are similar complaints that are being prepared on the thorny subject of “summons costs” “chargebacks fees” and “credit card handling charges”. I am not in any way connected with any of the complaints but senior members of the enforcement industry and many others are aware that I have been “consulted for my opinion”. I will NOT be saying ANYTHING further on this subject suffice to say; that your comment which infers that I am helping the bailiff industry cannot be further from the truth !!! Of that I can assure you.

As I said, I do not want to have this thread going “off topic” so I will now address your following comment:

As I read JK’s quotes, he does not say that a notice will not stop a bailiff, he says it is defective in obtaining money for trespass.

John Kruse did NOT say what you have quoted !!! What he actually said was that they ( Removal of Implied Right of Access notices) are a DEFECTIVE IDEA and they cannot have the effect claimed for them !!!

As I have frequently stated the notices are probably very effective with traditional ‘doorstep debt collectors” ( NOT bailiffs) enforcing consumer credit debts such credit card debts, store cards, bank debts etc.

BUT, with bailiffs enforcing government debts…..as John Kruse has confirmed they are a DEFECTIVE IDEA.

JasonDealingWithBailiffs replied:

A PDF of this article would be a good idea.

Bringing JK into this and distorting his advice is a bad idea.

In 2012, he published a book, Sources of Bailiff Law (ISBN 9781858117171) and on page 51 he is of the opinion the notices have effect and he gives the source.

BailiffAdviceOnline replied:

With respect I have provided the evidence you requested and if you require a PDF approach JK or CAB yourself.

I know John very well and of course I have his books including the above one.

As you will know from reading JK’s excellent books, he states VERY CLEARLY that the legal cases referred to have NOT involved bailiffs and he gives his opinion on what could be the case with bailiffs.

In January this year ( AFTER the publication of his book) the case of Thornton v Rossendales was debated in court and in that particular case the judge REJECTED the claim and Mr Thornton was ordered to pay Rossendales legal costs. In light of this decision I am not at all surprised at JK’s commentary in that the notices are a DEFECTIVE IDEA.

I would assume that in his next publication he will refer to the case of Thornton v Rossendales and amend his guidance accordingly.

At this present time there are NO REPORTED CASES of any court successes regarding these notices with bailiffs and it is for this precise reason that there was so much interest in your thread 2 weeks ago where you stated that one of your “Claims Handlers” had received a cheque that morning from the “Ministry of Justice” after a bailiff refuse to acknowledge the notice. Although it was not a ‘court success’ as such, if true, it would have given a great deal of credibility to these notices.

If anyone has a copy of a Judgment where the court acknowledges these notices with BAILIFFS then please make the judgment public.

zark replied:

jesus fucking christ .. its a retarded thread

the ‘trespass’ written 45/7 is ‘trespass on the case’

not
trespass

specifically want of form or defect in the Liability Order

ffs… the judge was a sneaky fucker, rossendales blindsided the idiot claimant and the claimant should have immediately objected.

oh well, cant help the idiots but i can point out the stupidity of this thread

and make this a lesson to all when making a claim or defending a claim ALWAYS

demand the particulars and the Declaration
if the particulars arent defined i.e
FORM OF ACTION
and
ACTION of …
then issue a writ of error
.
the claimant should have specifically claimed
Action of Trespass on the land
or
Action of Trespass on the person
but leaving it wishy-washy allowed the criminals to twist the case
i wanted to be a professional thinker but the world hated my thoughts
the world thinks therefore i am

JasonDealingWithBailiffs replied:

That is not going to happen because JK doesn’t make mistakes like that.

It’s you that is confused between a case about bringing a trespass action and a judge advocating for the effectiveness of a notice.

BailiffAdviceOnline replied:

Will you STOP bloody arguing and stop following every post of mine !!!

JasonDealingWithBailiffs replied:

You are throwing wrong advice.

Im actually quite shocked you dragged JK into all this because he is a highly respected commentator on bailiff law but you are making him out to be saying a notice is “defective”.

I’ve never known a notice to be used as grounds for bringing a trespass action, JK has never given that advice, but to construe JK to have said a notice if defective is plain wrong, and it’s not true.