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:
Taking control of goods can mean:
The Law:
Paragraph 13(1) of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 states:
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:
- 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:
(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.
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:
(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—
Gather as many of the following items relating to the goods (Exhibits)
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
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.
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.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.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 injunctionIf your third party claim is refused, make an application to court.
Procedure:
The Law:
Civil Procedure Rule 85.5 states:
(2) The claimant to controlled goods must make an application which must be supported by—
(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—
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:
Gather as many of the following:
See: Reclaiming an impounded vehicle
The Law:
Paragraph 60 of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 states:
(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—
(7) If the court makes a direction under sub-paragraph (3) or (6)—
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:
(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—
(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:
(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.
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:
(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:
(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:
(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.