Bailiff Law

A Guide for Creditors and Debtors

,

• Publisher: Straightforward Publishing Digital
• Year: 2016
• Print ISBN: 9781847165954
• eBook ISBN: 9781847166579
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

Significant changes to the law of enforcement of debts by bailiffs were implemented in 2014. Among other things, The Tribunal Courts and Enforcement Act 2007 provided a new regime for the recovery of debts by seizure of goods. The changes also put in place new mandatory training and certification requirements for bailiffs, as well as simplifying the fees they are allowed to charge. This comprehensive book is a useful reference work for anyone who is either threatened by bailiffs or wishes to know more about the law generally.

Part 1

Instructing a bailiff

Before a warrant is issued permitting a bailiff to attend to take control of goods , there will either be a court judgment/court order, court fine, unpaid taxes or a commercial lease permitting the recovery of rent arrears. A common, although not the only, reason for the instruction of a bailiff is to recover the money awarded by court in a civil judgment. Bailiffs are also instructed to recover possession of property. What is sometimes forgotten when debts are being pursued is that a creditor cannot simply instruct a “debt collector” to visit the non-payer and take the debtors goods away. A “debt collector” is not the same as a bailiff. It should be made clear that a debt collector is merely a person who is instructed to chase unpaid debts, usually those which have not been disputed. If a debtor does not or refuses to pay, before taking action to legally collect the debt the creditor will need a court judgment before moving on to instructing a bailiff. The process of obtaining a money judgment will require the issuing of a court claim, usually through the County Court.

The responsibilities of creditors

The National Standards for Taking Control of Goods by Bailiffs published by the Ministry of Justice in April 2014 is not a legally binding document but an important guide to minimum standards. It is important because when complaints are made, for example when complaints are made to the local government ombudsman about the conduct of a bailiff instructed by a local authority, the standards contained in this guide are often used as a useful bench mark as to what should be expected of a bailiff. At the end of this Chapter there is an extract from these National Standards showing the main responsibilities of a creditor.

The key aspect is the statement that the bailiff is acting as the agent of the creditor and ultimately the creditor is responsible for the behaviour of the bailiff. That means that if the bailiff does something wrong then not only could there be action against the bailiff but there could be action against the creditor. It also states that the creditor should consider acting proportionately when instructing a bailiff. To some creditors this will seem rather ironic when they might take the view that the debtor has hardly acted proportionately by not paying what he owes or even anything towards what is due. However, it is a warning against taking a “sledge hammer to crack a nut” or perhaps without having explored a more appropriate method of collecting what is due. The guidelines for considering the appropriateness of referring cases to bailiffs where the debtor is vulnerable avoids people who are not capable of dealing with their own financial affairs from being taken advantage of unfairly. It has got to be sensible to make creditors tell the bailiff what they know about the debtor’s circumstances. There is nothing new in this respect as when you instruct a county court bailiff, for example to carry out an eviction, you are always asked ahead of the eviction to warn the bailiff if you feel he might experience difficulties. If you are aware that a debtor is known, for example to be aggressive or has potentially dangerous dogs on the premises, then as the creditor you can understand the bailiff needs to know for his own protection and safety so that appropriate steps can be taken. In the same way, if the debtor is vulnerable, the bailiff should know because if the debtor is known to have mental health issues for example, then he needs be fully prepared when attending to take control of goods. If the bailiff does have the full picture, then he leaves himself open to criticism by the debtor, particularly if the debtor has issues that might lead him to distort what happens when the bailiff visits. In short, the bailiff will expect the creditor to give as much information as possible about the debtor; a failure to pass on material information may well lead to not only the debtor causing the bailiff problems, but ultimately the bailiff company may well consider action against the creditor being negligent in not properly briefing the bailiff when instructing him to take goods.

Instructing Bailiffs - money judgments

A bailiff may be instructed following criminal court proceedings (such as in the Magistrates Court) where a fine is imposed following a conviction and that fine remains unpaid. If a person does not pay Council Tax, the Council applies for a liability order and that is then passed to a bailiff to collect it.

A typical example of a civil matter which could end up with the instruction of a bailiff is a claim through the County Court for an unpaid debt. A creditor wishing to collect a civil debt could:

• obtain a warrant of control in the County Court and instruct a County Court Bailiff (“CCB” - a salaried civil servant employed directly by the court) or

• ‘transfer up’ the judgment to the High Court for enforcement by an HCEO.

It is important to note that the size of the debt will determine whether a bailiff or High Court Enforcement Officer can enforce the Judgment.

• judgments below £600 may only be enforced by a CCB

• judgments between £600 (including court costs) and £5,000 may be enforced by either a CCB or an HCEO

• judgments above £5,000 may only be enforced by an HCEO

Let us suppose that there is a County Court Judgment (“CCJ”) for the sum of £4,000. The creditor can instruct a County Court bailiff or transfer the Judgment up to the High Court for enforcement by a High Court Enforcement Officer (“HCEO”).

Instructing a County Court Bailiff

Instructing a county court bailiff is a simple process. It requires the completion of form N323 which is sent to the Court along with the court fee. A copy of form N323 is at the end of this Chapter. If a creditor used Money Claims Online, they can also instruct the bailiff online. The guidance for Claimants who use Money Claims Online explains the process:

Requesting a Warrant online

Please note that whilst the use of MCOL for claim issue against 2 defendants is possible, should you wish to issue a joint warrant of control against both defendants at the same time you will not be able to proceed via MCOL. If you have a joint judgment in a two defendant case and you would like the warrant to be executed against both defendants jointly, you will need to apply for a warrant manually. To do this, please refer to leaflet EX322 for information on how to apply and the fees payable which can be downloaded from www.justice.gov.uk/forms. The application should be sent to the County Court Money Claims Centre (CCMCC) to be processed. Court addresses can be found at https://courttribunalfinder.service.gov.uk/search/

Step 1 – Guidance

Choose the “Warrant” option from Claim Overview page. This brings up a guidance screen, including a warning that the warrant should be for a maximum of £5000 including costs.

Steps 2, 3 & 4 – Claimant/Defendant Address

Please follow the instructions outlined when entering judgment and select a defendant

Step 5 – Warrant Details

On the “Warrant Details” page the claim judgment figures will show in the top section. The “Balance due at date of this request” box should be completed with the current amount outstanding. You must then type in the amount you would like the bailiff to collect on the warrant.

This amount cannot be more than the outstanding balance due on the judgment and cannot be more than £4930 as the system will not allow the warrant to exceed £5000 (including the warrant fee, which can be confirmed in the EX50 court fees booklet). If you are a Solicitor there will be an opportunity to add your fees as applicable - http://www.justice.qov.uk/courts/procedure-rules/civil/rules/part45-fixed-costs

If the Judgment is for over £5000.00 and payable forthwith or in full by a certain date, you cannot request a warrant unless it relates to the Consumer Credit Act 1974, in which case you may issue a warrant for up to the claim amount.

If The Judgment is for over £5000 and is payable by instalments of less than £5000.00 you can issue a warrant provided the defendant has defaulted on the instalments. The amount of the warrant must be at least one instalment but can be anything up to £5000.00.

At the bottom of the screen there is a box for “Additional Information” where you can provide any extra information that may assist the bailiff in the execution of the warrant. The additional information has a limit of 120 characters and the same conditions apply regarding punctuation as with the POC.

The “additional information box” on the form to request a warrant of control is important because the more information the creditor can provide the bailiff the better the chances of successfully taking control of the debtor’s goods, assuming the debtor has goods that can be taken.

When a judgment is transferred up for enforcement, it does not become a High Court Judgment but merely the CCJ has been transferred up to the High Court for enforcement by a HCEO. This book does not intend to make too much comment on whether or not a County Court Bailiff is more appropriate than a High Court Enforcement Officer. What can be said though is that it is generally regarded that the County Court bailiff (who is an employee of the court) is less effective or has less time and resources to take control of goods.

Time limit for instructing a bailiff

A creditor should be aware that there is a time limit in which to instruct a bailiff to enforce a Judgment debt. This will not a be a problem in the vast majority of cases because a creditor can take enforcement action up to 6 years from the date of the Judgment. If a creditor wants to take enforcement action on a judgment after 6 years, then permission of the court is required. It may be thought who on earth is going to wait 6 years to enforce a Judgment. It is not uncommon for debt purchasers to be faced with enforcing quite old judgments. The judgment creditor has to be able to persuade the court to exercise it’s discretion and grant permission to enforce after 6 years and this will require demonstrating that it is just to do so. The burden of proof is on the creditor to show that it would be just to grant permission.

How to transfer up a County Court Judgment

In the case of a creditor being owed a £4,000 debt and having obtained a CCJ, if it is appropriate to instruct a bailiff, then he would probably transfer the judgment up to the High Court for enforcement. The process is started by the completion of Part 1 of Form N293A. This form is shown at the end of this Chapter.

When completing N293A, you should provide the judgment details and attach a copy of the sealed judgment or order. The form should be signed by the creditor or their solicitor. This completed form is then sent (or taken) to the County Court that issued the judgment. Providing everything is in order and the judgment still stands, then the court will seal Part 2 of the Form N293A, authorising the transfer to the High Court for the purposes of enforcement. The Judgment however remains a County Court judgment.

Once the Form N293A has been sealed, it is returned and can then be submitted to the High Court or a local District Registry (a High Court section within many County Courts) with a completed Form 53 writ of control. An example of a completed writ of control is shown below at the end of this Chapt...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Historical background
• Introduction
• Part 1: Instructing a bailiff
• Part 2: Giving Notice
• Part 3: Preventing and postponing a warrant
• Part 4: The bailiff arrives
• Part 5: When can a bailiff take control of goods?
• Part 6: Third Party Goods
• Part 7: Remedies for Creditors and Debtors
• Part 8: Commercial rent arrears recovery (“CRAR”)
• Part 9: Removal and sale by a bailiff
• Part 10: Bailiff fees
• Part 11: Overall summary of new bailiff laws
• Useful sources of information
• Index