Withdrawing Warrants of Distress

Joe_Horner

Having just heped my son in dealing with a defaulted compensation order that was in the hands of the bailiffs, I thought this might be of potential use. If it's inappropriate or in the wrong place, mods please delete or move

There's a lot of information out there on how to deal with Warrants in the case of default on civil claims, but (it seems) very little in the case of fines or other sums "adjudged to be paid on conviction" (posh words for a criminal court imposed penalty that covers fines, compensation orders, costs etc).

When bailiffs get involved with these they're ususally reluctant to agree installments and can come on pretty strong with threats of locksmiths, imprisonment and so on. But it's sometimes, as in my son's case, a matter of genuine inability to pay at the original Court imposed rate.

The lead ruling on what could be done in this case used to be the decision in [FONT=Arial, sans-serif]R. v. Hereford and Worcester Magistrates' Court ex parte MacRae[/FONT] which decided that, once issued, Warrants couldn't be withdrawn by the courts.

That's the line that's still held by a lot of court Fines Officers, especially in Magistrates Courts, which means that once bailiffs are involved (even if it's genuinely through no fault of the defaulter) then tough luck, you're going to be hounded for the fine plus the ever increasing bailiff fees. In my son's case, that had turned an outstanding £300 into over £800 and rising with no prospect at all of raising that amount.

But there was an amendment to the Courts Act 2003, initiated by Baroness Lister and Lord Thomas of Gresford QC, which now allows a Court to withdraw a Warrant of Control (that's the "new" name for a Warrant of Distress but the old name is still used) if it appears there was a mistake in issuing it. The amendment was contained in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 S.88 and came into force on 8th April 2013. The amendment specifically includes lack of information (which includes the defaulter's means) as an example of a "mistake".

Having been told by the Magistrates Court on Monday that they couldn't withdraw the warrant, today it was withdrawn by the Central Fines Office concerned and a payment plan (which will be tough but possible) agreed.

MSE doesn't have an attachment facility so, rather than filling a huge post with the "letter that worked", a sanitised version (all identifying info removed) is available in doc format below. Obviously, some of the details wouldn't be applicable to other cases, but the "important" bit is highlighted in blue text:

www.ournet.org.uk/docs/TMCLetterSanitized.doc

Superfandango

Hi Joe,
Thank you for posting your letter I have used alot of it for my case. I also have a statuary declaration ready to be signed under oath but will get this on off now, see my take with your help below.
Many thanks to you and glad you sorted your sons out for him, your a great dad.
The Court Manager
xxxxxxxx
xxx
xxxx
xxxT

Dear Sir or Madam,

I am currently the subject of a Warrant of Distress issued by your Court in respect of a fine for a traffic offence and costs imposed on me by HMCRS Hampshire & I.O.W Court sometime in 2011. I apologise for not giving you further information but I never knew of these proceedings taking place. I was for a short time staying at my friends mothers address xxxxxxxxxxxxxxxxxxxx I am sure your records will state any letters sent to me to that address were sent back not at this address having moved back to London in October 2010 due to my son being very unwell. I was at that time in receipt of carers allowance and income support, I hadn’t worked for a couple of years before due to being a single parent my son needing 24/7 care. I have never been means tested either. I went back in February 2011 only to collect the rest of my possessions even then I did not receive any notification of any proceedings against me.

Very sadly my son passed away, this past year I have spent most of my life in bed being treated for bereavement causing Major Depression Disorder, I am also in the process of claiming sickness benefits with a 3 month back date. Having been at the mercy of friends and family.

On Saturday I was visited by a marston bailiff (refxxxxxx) who then returned and clamped a sign written van at 5.45am after some very concerning lies and not so legal attempts on his behalf he removed the clamp and has given me 10 days to try and rectify this.

I am, naturally very concerned that the matter is resolved as satisfactorily as possible for the benefit of the Court and my own health.
I would ask to seek an equitable solution where possible.
I understand As you're aware, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 C.10, S.88(8) inserted the following para 40A into schedule 5 of the Courts Act 2003:

(1)This paragraph applies if, in taking a step specified in a further steps notice or replacement notice, the fines officer has issued a warrant of control for the purpose of recovering the sum due.

(2)The fines officer may withdraw the warrant if—

(a)P remains liable to pay any part of the sum due, and

(b)the fines officer is satisfied that the warrant was issued by mistake, including in particular a mistake made in consequence of the non-disclosure or misrepresentation of a material fact.

This section was commenced on 8th April 2013 by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 6) Order 2013 and so has been in force for the entirety of this matter. It makes no distinction between warrants held by private or court bailiffs so, under this provision, the Fines Officer does have power to withdraw the warrant if it has been issued by mistake. The Act is also specific that this includes mistakes caused by non-disclosure or misrepresentation of fact. In my case there are several mistakes that contributed directly and significantly to default and the issue of the warrant.

At no stage was I presented with an opportunity to complete a Statement of Means nor with my current situation. I am still at a loss of what this fine is about and willing to make a statutory Declaration to that effect if required. If I am guilty of an offence I would pay the fine as I had finished paying one in 2009 that i overpaid IOW court sending me 11 cheques @ £25


In light of the above, I submit that refusing to use the power granted by the Courts Act to withdraw the warrant at this time would be detrimental to the timely collection of the defaulted amount, and would be in no-one's interests but the bailiff company's.


I therefore ask that you refer this matter back to the court or to the Fines Officer for reconsideration. If the Officer maintains that withdrawal is not possible, or accepts the possibility of withdrawal but refuses to do so, they should provide a written explanation of their decision to include any legislation, procedures, or case law that they've relied on in making it. They should also furnish a copy of the Further Steps Notice that may of been issued but not received so that further steps can be taken to manage the situation.

Yours faithfully,



xxxxxxxxxx

Joe_Horner

Ypu're welcome

Sorry to hear about the year you've had, and obviously the last thing you need on top is to have bailiffs chasing you, especially for something you didn't know about!

Please do let us know how you get on - hopefully you'll get it sorted with minimal hassle