Fact Sheet - Bailiffs and High Court writs.

 

 

 


Bailiff attended about a debt you knew nothing about

You have an unpaid county court judgment, and it was transferred up to the High Court for enforcement. The bailiffs ambushed you unawares. You can apply to stay the execution of the writ and set aside the judgment. That stops enforcement and takes the bailiffs fees out of circulation. You must act quickly because the enforcement power is live until the court has stopped it. It doesn’t matter if you paid the bailiffs. You can still recover all your money and claim damages for breach of enforcement regulations.

 

You did not get a notice of enforcement

The law says you must be given at least seven days’ notice before the bailiff turns up. You have moved, and the bailiff traced you. The address on the writ is wrong. Always ask to see it. Some bailiffs do not give a notice because they stand to gain a higher fee, otherwise they only earn just £75. They like to ambush debtors catching them unawares. The law says bailiffs must record the time the debtor was given notice. For such an important document, it is good practice the bailiff gets a proof of posting which costs nothing. If a bailiff failed to record the time the notice is given, enforcement fails and the debtor can sue to recover the bailiff’s fees

 

The bailiff refused to show you the writ

The law says a bailiff must show evidence of his right to enter the premises to the debtor or any person who appears to be in charge of the premises being attended. The right to enter is conferred under the writ. If the bailiff refuses to show it, then he is not "acting lawfully". The bailiff can be thrown off the premises or property without the debtor or person committing an offence of "obstructing an enforcement agent". Bailiffs refuse to show the writ because they know the address is wrong or it might be defective.

 

You want more time to pay the debt

Using a court form N244, you apply to stay the execution of the writ and vary the county court judgement to be paid in instalments. That stops enforcement and takes the bailiffs and their fees out of the loop.

 

Your name or company name on the writ is wrong

The law says the debt can only be enforced against the debtor named on the writ. If enforcement is executed against someone else, they can claim damages under section 3 of the Torts (Interference with Goods) Act 1977. They can also make an “interpleader claim” which need legal expertise, but the costs are recoverable.


 

The address on the writ or other document is wrong

The law says enforcement can be executed where the debtor usually lives or carries on a trade or business. If the debtor is a company trading from other premises, the bailiff cannot execute against a director at his home. The writ having a wrong address is evidence the debtor has not been given notice and he can sue for damages for breach of regulations requiring debtors to be given notice before enforcement starts.

 

You were forced to pay someone else's debt

You can sue the bailiff and the creditor jointly and severally to recover the money and for damages caused.

 

The bailiff attended your private address about a company's debt

Directors are not liable for his company’s debts, unless he made a personal guarantee. The company cannot "reside" at a director’s private address unless the writ has the directors private address on it. In that case, the company’s goods are probably not at the address and enforcement cannot be executed. The director can sue the bailiff company and the creditor for breach of regulations that specify addresses the bailiff may attend.

 

You have recently moved

If you have moved and the correspondence about your judgment was given to your old address, then enforcement fails. If you received a judgment without you knowing at your old address and the bailiff has traced you and turned up unexpectedly at your new address, the law says the enforcement is invalid. You can apply to stay the writ and set aside the judgment. The creditor may bring fresh proceedings. If the bailiffs do not know your new address, you must not give it to them.

 

The fees look way too high

It is common practice for bailiffs to exaggerate their fees and costs. You can apply to the court for a detailed assessment hearing to examine their fees. You need some legal expertise to bring this action, but you get your costs paid.

 

The bailiff charged you an "enforcement stage fee" more than once

Bailiffs charge the first and second enforcement stage fee together in a single visit. The regulations set them for separate attendances. If you can show the bailiff only attended once, then you can reclaim the second enforcement stage fee. There is nothing stopping the bailiff stepping off your premises and stepping back on again to attract the second enforcement stage fee. That may be an abuse of process.

 

You were charged a "sale stage fee"

The law says the sale stage fee only applies when the bailiff has started the process of removing goods to sell. If a bailiff removed the goods or vehicle to a compound for storage, the sale stage fee does not apply unless the sale takes place at the compound. The fee does not apply when the bailiff says he has "called a truck". The sale stage fee only applies after the bailiff has taken control of your goods using one of the four methods prescribed in paragraph 13 (1) of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007, and has started the process of moving them to the place of sale. You can reclaim this fee by applying for a detailed assessment. That should not be tackled unless you are legally proficient. You get your legal costs paid.

 

You were charged a "card fee"

The fee regulations say the bailiff can only recover the prescribed fees in the Schedule of the Taking Control of Goods (Fees) Regulations 2014 along with disbursements paid for taking and selling the debtors goods. A card fee does not fit any of these rules. If a bailiff is charging a card fee, then you do not have to pay it. You can reclaim it via a Chargeback with your bank or credit card company. Act quickly as soon as the transaction has taken place.

 

The bailiff charged VAT on his fees

The bailiff is performing services for the creditor. There is no contractual relationship with bailiff and debtors that attract VAT. HMRC published an advisory that says VAT registered creditors reclaim the VAT, otherwise, the debtor pays the VAT as a disbursement (costs) by the creditor. Debtors cannot reclaim the VAT even if they are VAT registered. If you are a debtor charged VAT, and the creditor is VAT registered, then the bailiff has been paid the VAT twice.

 

The bailiff refused to explain his fees

Bailiffs often charge a fee to explain his fees and costs. The law says all fees and disbursements must be set out in the Notice of Enforcement. If they are not, the enforcement fails and you can sue for the recovery of the fees. You bring the action under Paragraph 66 of the Tribunals, Courts and Enforcement Act 2007 for failure to comply with paragraph 7 (1) (2) of the Schedule. You must quote in your statement of claim, the operation of Regulation 3 of the Taking Control of Goods (Fees) Regulations 2014, otherwise judges tend to overlook it.

 

The bailiff is pestering you just for his fees

Bailiffs cannot take control of your goods after you have paid the debt - the "amount outstanding" to the creditor. The law says bailiffs may take control of goods to recover the debt and the costs of taking and selling your goods. It does not provide for recovering "fees" when you have paid the debt on a date before the bailiff takes control of your goods. Enforcement fails and you can sue for damages, recover of the goods taken or you can claim the replacement cost of them.

 

The bailiff is recovering a judgment more than six years old

The law says debts are barred from enforcement if it remains unpaid for 6 years without the debtor's acknowledgement of the debt. If a judgment debt is transferred up to a writ, it does not extend the six year statutory period from the original judgment date or from the date of the debtors last acknowledgment of it. The court is not empowered to revoke a time limit set by the law.

 

The bailiff attended less than 21 calendar days from the date printed on the notice

The bailiff must wait until the legal time limit has lapsed before he can attend. The law says the Notice is given by second class post, which means, it is delivered on the 4th weekday after posting - unless the sender makes a sworn affidavit. If the bailiff has attended in haste, enforcement fails and you can sue for damages including recovery of goods taken or claim the replacement cost of them.

 

You are a vulnerable person

Guidelines define the classes of vulnerable people and the law protects vulnerable people from enforcement action in certain circumstances. If the vulnerable person is alone, the law says the bailiff may not take control of goods. Otherwise, the law requires the bailiff to give the vulnerable person an opportunity to "seek advice". The law says fees are not recoverable from vulnerable debtors. The law does not make bailiff companies to have a "welfare department". Bailiffs are not medically qualified to decide whether you are a vulnerable person or have access to DWP benefit entitlements.

 

The original judgment is under £600

The laws say judgments debts must be over £600 before it can be transferred up to the High Court for enforcement. You can apply to have the writ set aside and apply for your costs. These costs are called indemnity costs, which means the bailiff pays them because he transferred up a judgment debt that is under £600 against regulations.

 

Your vehicle was wheel-clamped

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.

 

Your vehicle has been removed or towed away

Call TRACE on 0845 206 8602 and report the car stolen to the police. It doesn't matter if the police tell you, it's a civil matter. You must report it to log the call onto the CAD (Computer Aided Dispatch). Inform the DVLA the car has been "taken without permission". That protects you from any traffic offences liability. If your car is on hire purchase, leased or has a logbook loan secured on it, you must inform the lender or leasing company and they can make an "interpleader claim" to recover the car. The bailiff company pays their solicitor's costs for bringing the claim.

 

Your vehicle has been sold, but you were not given a valuation

Enforcement fails. The law says the debtor must be given a valuation before the goods are sold. You can sue for the replacement cost of the goods. The law says valuations can be independent, or the bailiff can just make one up. The most irrefutable valuation is written by the dealer principal at a franchised dealership for the vehicle's manufacturer. You can get quick valuations by searching eBay completed sold listings for the same model and condition of the vehicle.

 

The bailiff charged "storage fees" for keeping your vehicle

The law provides for bailiffs to recover regulated prescribed fees. Storage fees are neither prescribed nor regulated. The law provides for disbursements, or "costs" to be recovered from the debtor. Storage fees are neither disbursed nor "costs". You may recover all storage fees you have paid to reclaim your car.

 

The bailiff refused to show his ID

The law says a bailiff must show evidence of his ID to the debtor or any person who appears to be in charge of the premises being attended. If the bailiff refuses to show it, then he is not "acting lawfully". The bailiff can be lawfully removed from the premises or property without the debtor or person committing an offence of "obstructing an enforcement agent".

 

Bailiff does not have an enforcement certificate

The person commits a criminal offence. The law says anyone, unless employed by the government, instructed to take control of goods must have an enforcement certificate. You can report the person to the police for committing an offence under section 63 (6) of the Tribunals Courts and Enforcement Act 2007. If the police tell you, it’s a civil matter, then you can lay the information before a Justice of the Peace sitting in a magistrates' court for the question of reporting the suspect for the offence. All enforcement carried out by any person not having an enforcement certificate is invalid.

 

The debt is more than 12 months old

Before starting enforcement, all debtors by law, must be given a Notice of Enforcement. The Notice only has a service life of 12 months from the date of issue printed on it. Once that time has lapsed, enforcement cannot begin. The bailiff must give a fresh Notice of Enforcement provided the enforcement power has not ceased to have effect in the meantime.

 

The bailiff turned up before 6am or after 9pm

If you see bailiff activity at your property before 6am, then you must call police on 999. The time of the call is logged on the CAD and is irrefutable evidence when bringing a claim for non-compliant enforcement. It is common for bailiffs to work at night or under cover of darkness with ANPR vans and clamp cars before 6am, then write on a document they attended at 06.05am. If you or a CCTV system sees enforcement activity before 6am, the enforcement fails and you can sue for damages.

 

The bailiff threatened you with a locksmith

There is no legislation that says bailiffs can use a "locksmith" or break entry into homes. The word "locksmith" is bailiff terminology for a right to "enter by reasonable force". There is no law enabling bailiffs to enter domestic premises by reasonable force when recovering unpaid writs. Bailiffs can enter an unlocked door. Not open windows. If the key is in the lock, the bailiff can unlock the door by turning the key. They cannot unlock a door using a key found under the doormat. When you tell a bailiff to leave your home, he must do so with all due reasonable speed. They can enter commercial premises by breaking entry, but defending the claim for damages makes this commercially untenable for bailiffs.

 

The bailiff wrote on a document you paid voluntarily

The bailiff is trying to prevent you recovering the money on the grounds you paid by agreement. This happens when you pay somebody else debt. When you bring a claim, you must assert by making an affidavit, the bailiff wrote the comment on the receipt AFTER you paid and there is no agreement. You paid after a threat of having your goods removed.

 

The debate arises from a consumer credit agreement

The law says debts arising from a consumer credit agreement may only be enforced by the county court.

 

The controlled goods agreement is not compliant with regulations

The controlled goods agreement is a regulated contract between a bailiff and a debtor. If the agreement is not compliant with regulations stating what is must contain, then it fails. Typical reasons a controlled goods agreement fails are the bailiff not identifying the goods listed, or their quantities taken into control are estimates. Controlled Goods Agreements also fail when the goods listed are not the debtors, or a person other than the debtor has signed it without the debtor’s permission.

 

You were charged interest

If the original county court judgment does not award interest, the bailiff cannot recover it. Otherwise, Interest has a legal rate of 8% for a maximum of 6 years simple interest.

 

A document was left hanging out of your letter-box or communal doorway

It is a bailiff’s method to see whether a property is empty. A document would otherwise be taken in when the occupant comes home. This is the practice of burglars and criminals checking whether a house is empty. It also finds out if the document provokes a reply as a method of tracing missing debtors. It can also be to attract an enforcement stage fee.

 

The enforcement agent said he is a "high court enforcement officer"

An enforcement agent, or a "bailiff", is a prescribed person under section 63 of the Tribunals Courts and Enforcement Act 2007. A High Court Enforcement Officer is a prescribed person under regulation 6 of the High Court Enforcement Officers Regulations 2004. If a bailiff says he is a High Court Enforcement Officer when he is not, then he commits an offence under section 2 of the Fraud Act 2006. It is "fraud by false representation". Enforcement Agents cannot officiate and cannot call themselves an "officer". They are "agents" authorised to take control of goods.

 

The bailiff damaged your business reputation

If a bailiff told other people, you have a fine or a debt, you can sue for damages. You must be able to quantify the monetary loss paid and have anyone contacted by the bailiff to come to court as witnesses and making a sworn statement filed in evidence. Otherwise, proving a claim for reputation damage and quantifying your claim is difficult.

 

You received nuisance text messages from the bailiff

Bailiff companies sometimes send text messages to mobile numbers, who they think might be the debtor. It is a method of tracing missing debtors and seeing if it provokes a response and gets your identity. Never respond to unsolicited or nuisance text messages. Even if the sender's identity is hidden, you can hand it in to the Information Commissioners Office with a complaint under section 1 of the Protection from Harassment Act 1997 by completing an online form.

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You told the bailiff to leave your property

If the bailiff has not taken control of goods and fails to show evidence of his right to enter the premises, he must leave with all due reasonable speed when the debtor or other person in charge of the property tells him to leave. Failure to comply can bring a claim for damages for breach of Paragraph 26 of Schedule 12 of the Tribunals Courts and Enforcement Act 2007. If the debtor does not live or trade at the address, the bailiff is liable in a trespass action brought by the person in charge of the property.

 

A notice was displayed telling the bailiff to leave the property

Unlike common debt collectors who have no enforcement powers, bailiffs acting with a writ may enter specified premises on the writ. He can disregard a notice to leave if the debtor trades from there (unless the bailiff is otherwise not acting lawfully). Bailiffs may only enter non-violently, through an unlocked door, or be invited. He may enter commercial premises without the debtor's permission, provided the address being entered is named in the writ. The writ does not confer a power to enter any random address anywhere in England and Wales. That permission must be obtained separately.

 

The bailiff jammed his boot into your door

Enforcement fails. The law says the bailiff may enter a property by "normal means". A bailiff jamming his boot into a door amounts to the use of force against a person. The law says a power to use force does not include power to use force against people.

 

The bailiff was wearing a bodycam or a GoPro camera

If you are bringing a claim for unlawful enforcement action which the bailiffs body-cam footage would prove your claim, you have a right to ask for a copy. You may get excuses like "data protection act". You apply to the court to make an order requiring the bailiff to give you his body-cam footage according to a deadline. When the bailiff fails to produce it, the court can strike out his defence and you win your claim without a fight. The bailiff hangs himself with his own rope.

 

The bailiff turned up with a TV film crew

You can stop the footage being broadcast. Section 10 of the Data Protection Act 1998 states you can give a notice to the data controller of the film company or the TV station to stop "processing your data". The Act classes video footage of you and your property as "personal data". If the data controller fails to respond in writing confirming they have stopped processing your data, you can ask the Information Commissioner to assess the breach and give a fine. You can sue the TV company or TV station in a county court for breach of Section 10 of the Act for a "sum decided by the court". If the debtor is a company, and the premises is a commercial one, then you can claim royalties for use of footage containing you, your staff and premises in public broadcast. It does not matter if faces are concealed. Bringing this claim needs specialist legal work. Contact me for a referral.

 

The bailiff looked like police

A bailiff wearing attire with police-like markings or equipment with intent to deceive or impersonate a police officer, commits an offence under Section 90 of the Police Act 1998. If you capture him on video or CCTV, you can report him to the police.

 

The bailiff called the police

If a bailiff says he called the police, then you can get the call details from the police CAD (Computer Aided Dispatch) by calling them on 101. That not only confirms whether the bailiff called the police, it says what the bailiff said to them. This information is exempt under section 29 of the Data Protection Act 1998. It is a bailiffs’ tactic to scare you into thinking the police will be coming. You can use the CAD report as evidence of the bailiff’s dishonesty by pretending to call police when he did not.

 

The bailiff committed a crime against you in the presence of police

Police forces have an institutional policy that says bailiff crime is a civil matter. That is not what the law says. If a police officer witnesses a bailiff committing an offence, then the law says he must place the suspect under arrest. By failing to do so, the police officer commits an offence under Section 26(5) of the Criminal Justice and Courts Act 2015, and you have a right to lay the information and the evidence before a Justice of the Peace sitting at a Magistrates' Court for the question of reporting the suspect for the offence.

 

The police arrested you, or threatened to arrest you

If you are charged with an offence of "obstructing an enforcement agent" under Paragraph 68 of Schedule 12 of the Tribunals, Courts Act 2007 and the enforcement agent was not acting lawfully, then you are not guilty of the offence. If you are charged with "interfering with controlled goods" and the bailiff did not lawfully take control of them, then you are not guilty of the offence. You need to get legal representation straight away. You get all your costs paid. If you are threatened with arrest for a charge which you are not guilty, then you can make a complaint against the police officer to the police Professional Standards department for abuse of police privilege. If you are arrested and released without charge, you can sue for false arrest and unlawful imprisonment. You need expert help to bring this claim against the police force. Contact me for a case examination.

 

You or a member of your staff was injured or assaulted by the bailiff

Seek immediate medical attention. Call 999 if necessary. The call is logged, and a recording is made. Time is critical at this stage because you can bring a Personal Injury Claim. Medical evidence is crucial in bringing a claim. The claim may be against the creditor, the bailiff, the bailiff company, or all three of them together. The bailiff company will have liability insurance to pay your claim and compensation. You can make a complaint to police for offences of common assault or Actual Bodily Harm (ABH), depending on the severity of your injuries. Police might tell you the offence is a civil matter.

 

The bailiff damaged your property or vehicle

When a bailiff takes control of goods or a car, the law says liability for their care passes to the bailiff. If your goods become damaged, or returned damaged, the law says you may claim damages for the repairs or the replacement cost. You must have irrefutable evidence the damage was inflicted by the bailiff. Make a video of the bailiff when he comes into contact with your goods or your car. If your video shows your goods are undamaged when the bailiff took control of them, the bailiff has no defence.

 

You want to make a formal complaint about the bailiff

Bailiffs encourage complaints to their own company or their trade association. You will waste your time. They play lip service getting you into an endless volley of letter-writing until you give up your complaint. There is an official channel to complain about a bailiff, but limited to questioning the bailiff’s fitness to hold a certificate. Unless you can show the bailiff is unfit to hold a certificate, for example, he has undeclared convictions, sex offences, commits fraud or lacks proficient knowledge of enforcement regulations. Instead, make a claim and recover your damages. You hit the bailiff where it hurts most - in the pocket.

 

You want to prosecute the bailiff

Anyone can bring a prosecution, but you must gather your evidence, prepare a witness statement, then give the police an opportunity to investigate the crime and question the suspect. When the police tell you, it’s a civil matter, or choose not to pass the case to the Crown Prosecution Service, you now have a right to lay the information and evidence before a Justice of the Peace sitting in a Magistrates' Court. The magistrate has a power to order the Crown to prosecute the case and issue warrant to the police to bring the suspect into court to enter a plea.

 

Still can't find it? Ask in the bailiff forums

You can ask simple questions about your enforcement case by signing up for the UK's only dedicated discussion forum for debtors receiving bailiff action. Do not give your real name or information that could identify you. Other members of the public offer their help.

 

Prefer to chat about your case? Speak to someone urgently? Get a private consultation

Maybe I can fix it? I offer a private telephone consultation service for which I charge a small fee £35. Otherwise, I would be on the telephone 24/7. Your case and evidence is examined, I speak to the bailiff where needed to solve your complaint. If the bailiff is not forthcoming, then I recommend a choice of legal action. This can include a referral to specialist solicitors experienced in civil enforcement redress and legal counsel to advocate for you at court.

 

You would like to speak to the media about your experience

If you want to raise public awareness about your case using the media, you must make your story newsworthy. Only approach the media when your legal proceedings are finished, otherwise your claim can be undermined.

 

 

Jason Bennison (c) 2017

 

 

 

 

 

 

 

 

 

 

 

 

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