Third party claim to controlled goods CPR 85.4

To enforce a debt upon person 'A', - the bailiff cannot lawfully take the goods of person 'B'.


Procedure

If your goods have been taken into control, or your commercial premises secured for a debt owed by someone else, make a third party claim:

Gather evidence proving ownership of the goods, or in the case of a secured commercial premises, a copy of the lease

Give copies to the bailiff company and ask for your goods or vehicle to be released

Allow a total of 10 clear days (it's the law)

Apply to court on a form N244 for an Third party claim

The court fee for an N244 is £275. If you are on a low income, claim court fee remission online and put the application reference number on your form N244.

The court orders the release of your goods or commercial premises

Attend a further hearing to decide your costs and your claim for damages

Taking control of goods can mean:

clamping a vehicle on your property (but not on someone else's property) in England and Wales

Opening and re-securing a commercial premises containing the debtor's goods

Clamping a vehicle on a highway in England or Wales

Removing the goods or towing away the vehicle from a highway or your property (but not on someone else's property) in England and Wales

Making a controlled goods agreement with the debtor

The Law:

Paragraph 13(1) of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 states:

(1)To take control of goods an enforcement agent must do one of the following—

(a)secure the goods on the premises on which he finds them;

(b)if he finds them on a highway, secure them on a highway, where he finds them or within a reasonable distance;

(c)remove them and secure them elsewhere;

(d)enter into a controlled goods agreement with the debtor.


Bailiffs may only take control of goods that belong to the debtor

The Law:

Paragraph 10 of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 states:

An enforcement agent may take control of goods only if they are goods of the debtor.


Bailiffs have a "reasonable belief" that goods belong to the debtor. If that assertion without any foundation the bailiff can be ordered to pay costs on the indemnity basis.

- Alenezy v Shergroup Ltd [2022] EWHC 777 (QB) (01 April 2022)

The goods or vehicle cannot be lawfully sold when the bailiff has notice they are not the debtor's


The Law:

Paragraph 51 of Schedule 12 of the 2007 Act states:

(1)A purchaser of controlled goods acquires good title, with two exceptions.

(2)The exceptions apply only if the goods are not the debtor's at the time of sale.

(3)The first exception is where the purchaser, the creditor, the enforcement agent or a related party has notice that the goods are not the debtor's.

(4)The second exception is where a lawful claimant has already made an application to the court claiming an interest in the goods.

(5)A lawful claimant in relation to goods is a person who has an interest in them at the time of sale, other than an interest that was assigned or transferred to him while the property in the goods was bound for the purposes of the enforcement power.

(6)A related party is any person who acts in exercise of an enforcement power, other than the creditor or enforcement agent.

(7)"The court" has the same meaning as in paragraph 60.


If your goods or vehicle has been taken into control for someone else's debt; make a Third party claim.

Making a claim suspends the sale.

You must start the claim within 7 days from the date the goods were taken into control.

If the goods have been sold, and your third party claim succeeds, the court may undo the sale.

In bailiff jargon, they call it a CPR 85 claim - a Civil Procedure Rule 85, or a Part 85 claim.


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Nearly all third party claims involve recently bought vehicles

Bailiffs crawl streets with ANPR vans seeking vehicles with unpaid parking tickets and do "drive-by" clamping.


The process is made in two parts:

Ask the bailiff company and the creditor to return the goods to you.

If your request is refused, apply to the court.


Procedure:


The Law:

Civil Procedure Rule 85.4 states:

(1) Any person making a claim under paragraph 60(1) of Schedule 12 must, as soon as practicable but in any event within 7 days of the goods being removed under the exercise of an enforcement power, give notice in writing of their claim to the enforcement agent who has taken control of the goods ('the notice of claim to controlled goods') and must include in such notice

(a) their full name and address, and confirmation that such address is their address for service;

(b) a list of all those goods in respect of which they make such a claim; and

(c) the grounds of their claim in respect of each item.

(2) On receipt of a notice of claim to controlled goods which complies with paragraph (1) the enforcement agent must within 3 days give notice of such claim to—

(a) the creditor; and

(b) any other person making a claim to the controlled goods under paragraph (1) ('any other claimant to the controlled goods');

(3) The creditor, and any other claimant to the controlled goods, must, within 7 days after receiving the notice of claim to controlled goods, give notice in writing to the enforcement agent informing them whether the claim to controlled goods is admitted or disputed in whole or in part.

(4) The enforcement agent must notify the claimant to the controlled goods in writing within 3 days of receiving the notice in paragraph (3) whether the claim to controlled goods is admitted or disputed in whole or in part.

(5) A creditor who gives notice in accordance with paragraph (3) admitting a claim to controlled goods is not liable to the enforcement agent for any fees and expenses incurred by the enforcement agent after receipt of that notice by the enforcement agent.

(6) If an enforcement agent receives a notice from a creditor under paragraph (3) admitting a claim to controlled goods the following applies

(a) the enforcement power ceases to be exercisable in respect of such controlled goods; and

(b) as soon as reasonably practicable the enforcement agent must make the goods available for collection by the claimant to controlled goods if they have been removed from where they were found.

(7) Where the creditor, or any other claimant to controlled goods to whom a notice of claim to controlled goods was given, fails, within the period mentioned in paragraph (3), to give the required notice, the enforcement agent may seek—

(a) the directions of the court by way of an application; and

(b) an order preventing the bringing of any claim against them for, or in respect of, their having taken control of any of the goods or having failed so to do.

Gather as many of the following items relating to the goods (Exhibits)

V5 logbook with your name and date your acquired the goods

Advertisement of sale you bought the goods

Insurance policy covering the use of the goods showing start date

Evidence of buying vehicle tax

Bill of sale

Bank statements showing flow of money to the seller

Copy of the dated HPI Check made before the sale

In the case of a secured commercial premises, a copy of the lease

Send them by email to the bailiff company with the subject line: "The notice of claim to controlled goods".


In your email, include the following information:

    Your full name

    Your address, followed by the words - "this is my service address"

    Description of the goods, including make, model and registration

    The grounds of your claim, e.g. the date you bought the vehicle


Template email "The notice of claim to controlled goods".


Attach to the email, the exhibits supporting your grounds, e.g the bill of sale, flow of money, insurance document, etc.

Make a screenshot of the email showing the time it was sent. You will need it when you file your third party claim at court.

The bailiff company has 3 days to pass your notice to the creditor who has 7 days to give notice to the bailiff company whether your claim is admitted (says your goods are exempt), then the bailiff company has 3 days to notify you of the creditor's decision. A total of 13 days.

If the creditor admits your claim, you can collect your vehicle, and start a claim for damages. See: Collecting a vehicle from a compound.


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Have a solicitor present the information to the bailiff company.

If the creditor is minded not to admit your claim, they will know you are racking up costs which they pay if the court allows your claim.

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Do not be enticed by a bailiff company into completing a form.

They are designed to frustrate your claim, and usually not compliant with these regulations.


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Signing a disclaimer.

If a bailiff agrees the car is yours, but continues to hold it to coerce you to sign a disclaimer waiving your right to bring damages. DO NOT sign. Seek advice on getting an injunction


If your third party claim is refused, make an application to court.

Procedure:


The Law:

Civil Procedure Rule 85.5 states:

(1) Where a creditor, or any other claimant to controlled goods to whom a notice of claim to controlled goods was given, gives notice under rule 85.4(3) that the claim to controlled goods, or any part of it, is disputed, and wishes to maintain their claim to the controlled goods, the following procedure will apply.

(2) The claimant to controlled goods must make an application which must be supported by

(a) a witness statement

(i) specifying any money;

(ii) describing any goods claimed; and

(iii) setting out the grounds upon which their claim to the controlled goods is based; and

(b) copies of any supporting documents that will assist the court to determine the claim.

(3) In the High Court the claimant to controlled goods must serve the application notice and supporting witness statements and exhibits on

(a) the creditor;

(b) any other claimant to controlled goods of whom the claimant to controlled goods is aware; and

(c) the enforcement agent.

(4) In the County Court when the application is made the claimant to controlled goods must provide to the court the addresses for service of—
(a) the creditor;

(b) any other claimant to controlled goods of whom the claimant to controlled goods is aware; and

(c) the enforcement agent, ('the respondents'), and the court will serve the application notice and any supporting witness statement and exhibits on the respondents.

(5) An application under paragraph (2) must be made to the court which issued the writ or warrant conferring power to take control of the controlled goods, or, if the power was conferred under an enactment, to the debtor’s home court.

(6) The claimant to controlled goods must make the required payments on issue of the application in accordance with paragraph 60(4)(a) of Schedule 12, unless such claimant seeks a direction from the court that the required payment be a proportion of the value of the goods, in which case they must seek such a direction immediately after issue of the application, on notice to the creditor and to the enforcement agent.

(7) The application notice will be referred to a Master or District Judge.

(8) On receipt of an application for a claim to controlled goods, the Master or District Judge may—

(a) give directions for further evidence from any party;

(b) list a hearing to give directions;

(c) list a hearing of the application;

(d) determine the amount of the required payments, make directions or list a hearing to determine any issue relating to the amount of the required payments or the value of the controlled goods;

(e) stay, or dismiss, the application if the required payments have not been made;

(f) make directions for the retention, sale or disposal of the controlled goods;

(g) give directions for determination of any issue raised by a claim to controlled goods.


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Third party claimants must lodge money to the value of the goods with the court.

Include an application for a direction under CPR 85.5(6) the required payment is a proportion to the value of the goods.

If the CPR 85.5(6) application is dismissed, it may be cheaper to Pay and Reclaim the car, then request the debt to be assigned to you, but if no formal assignment is given, then you can claim to be subrogated to the councils claim to the money being enforced.



Complete a form N244 and make a witness statement with exhibits. Include the screenshot of the time-stamped email to the bailiff company and the creditor. Then file them at court who will serve copies on the respondents (The bailiff company and the creditor/council) and list the application for a hearing.


There are three types of damages you can claim:

Special Damages: The cost of repairing damage to the car. Loss of use of the car, eg, taxi's, rental car, loss of earnings etc.

Restitutional Damages: The bailiff can be ordered to pay you the profit earned, or benefits gained from taking your car.

Conversion: Payment or compensation for the deprivation of the lawful right of use of your car.

Gather as many of the following:

V5 logbook with your name and date your acquired the goods

Advertisement of sale you bought the goods

Insurance policy covering the use of the goods showing start date

Evidence of buying vehicle tax

Bill of sale

Bank statements showing flow of money to the seller

If you already sent it, the screenshot of the email to the bailiff company and the creditor

See: Reclaiming an impounded vehicle


The Law:

Paragraph 60 of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 states:

Third party claiming goods

(1) This paragraph applies where a person makes an application to the court claiming that goods taken control of are his and not the debtor's.

(2) After receiving notice of the application the enforcement agent must not sell the goods, or dispose of them (in the case of securities), unless directed by the court under this paragraph.

(3) The court may direct the enforcement agent to sell or dispose of the goods if the applicant fails to make, or to continue to make, the required payments into court.

(4) The required payments are

(a) payment on making the application (subject to sub-paragraph (5)) of an amount equal to the value of the goods, or to a proportion of it directed by the court;

(b) payment, at prescribed times (on making the application or later), of any amounts prescribed in respect of the enforcement agent's costs of retaining the goods.

(5) If the applicant makes a payment under sub-paragraph (4)(a) but the enforcement agent disputes the value of the goods, any underpayment is to be—

(a) determined by reference to an independent valuation carried out in accordance with regulations, and

(b) paid at the prescribed time.

(6) If sub-paragraph (3) does not apply the court may still direct the enforcement agent to sell or dispose of the goods before the court determines the applicant's claim, if it considers it appropriate.

(7) If the court makes a direction under sub-paragraph (3) or (6)—

(a) paragraphs 38 to 49, and regulations under them, apply subject to any modification directed by the court;

(b) the enforcement agent must pay the proceeds of sale or disposal into court.

(8) In this paragraph "the court", subject to rules of court, means

(a) the High Court, in relation to an enforcement power under a writ of the High Court;

(b) the county court, in relation to an enforcement power under a warrant issued by the county court;

(c) in any other case, the High Court or the county court.

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The law says you cannot sell your car away after being given a Notice of Enforcement.

Your goods become "bound" when you are given a Notice of Enforcement, or in the case of a High Court Writ - when the bailiff is instructed.

If you were not given a notice of Enforcement and the debt recovered is NOT a High Court writ, the goods are not bound.

The Law:

Paragraph 61 of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 states:

Application to assignee or transferee

(1)This Schedule applies as follows where an interest of the debtor's in goods is assigned or transferred while the property in the goods is bound for the purposes of an enforcement power, and the enforcement agent—

(a)knows that the assignee or transferee has an interest in the particular goods, or

(b)would know, if he made reasonable enquiries.

(2)These apply as if the assignee or transferee were a co-owner of the goods with the debtor—

(a)paragraph 34 (inventory);

(b)paragraph 36 (valuation);

(c)paragraphs 39 to 41 (sale);

(d)paragraph 59(6) (remedies after payment of amount outstanding).

(3)If the interest of the assignee or transferee was acquired in good faith, for valuable consideration and without notice, paragraph 50(6) applies as if "co-owner" included the assignee or transferee.

(4)If the interest of the assignee or transferee was not acquired in good faith, for valuable consideration and without notice, the enforcement agent must pay any surplus under paragraph 50(5) to the assignee or transferee and to the debtor (if he retains an interest).

(5)If the surplus is payable to two or more persons it must be paid in shares proportionate to their interests.

(6)Paragraph 5(3) and (4) ("good faith" and "notice") apply for the purposes of this paragraph.

Paragraph 62 of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 states:

Costs

(1)Regulations may make provision for the recovery by any person from the debtor of amounts in respect of costs of enforcement-related services.

(2)The regulations may provide for recovery to be out of proceeds or otherwise.

(3)The amount recoverable under the regulations in any case is to be determined by or under the regulations.

(4)The regulations may in particular provide for the amount, if disputed, to be assessed in accordance with rules of court.

(5)"Enforcement-related services" means anything done under or in connection with an enforcement power, or in connection with obtaining an enforcement power, or any services used for the purposes of a provision of this Schedule or regulations under it.

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The bailiff is not liable to the owner of controlled goods unless he had notice the goods are the not the debtor's


Paragraph 63 of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 states:

Limitation of liability for sale or payment of proceeds

(1)Any liability of an enforcement agent or related party to a lawful claimant for the sale of controlled goods is excluded except in two cases.

(2)The first exception is where at the time of the sale the enforcement agent had notice that the goods were not the debtor's, or not his alone.

(3)The second exception is where before sale the lawful claimant had made an application to the court claiming an interest in the goods.

(4)A lawful claimant in relation to goods is a person who has an interest in them at the time of sale, other than an interest that was assigned or transferred to him while the property in the goods was bound for the purposes of the enforcement power.

Paragraph 64 of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 states:

(1)Any liability of an enforcement agent or related party to a lawful claimant for paying over proceeds is excluded except in two cases.

(2)The first exception is where at the time of the payment he had notice that the goods were not the debtor's, or not his alone.

(3)The second exception is where before that time the lawful claimant had made an application to the court claiming an interest in the goods.

(4)A lawful claimant in relation to goods is a person who has an interest in them at the time of sale.

Paragraph 65 of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 states:

(1)Paragraphs 63 and 64—

(a)do not affect the liability of a person other than the enforcement agent or a related party;

(b)do not apply to the creditor if he is the enforcement agent.

(2)The following apply for the purposes of those paragraphs.

(3)The enforcement agent or a related party has notice of something if he would have found it out if he had made reasonable enquiries.

(4)A related party is any person who acts in exercise of an enforcement power, other than the creditor or enforcement agent.

(5)"The court" has the same meaning as in paragraph 60.