Bailiffs, Notice of Enforcement

Debtors must be given a Notice of Enforcement at least seven clear days before attending, otherwise, enforcement fails and all fees are revoked and you can claim damages

This is what a Notice of Enforcement must look like.

Enforcement fails and the fees are revoked if:

If you were not given the notice,

The bailiff attended before a period of seven clear days lapsed excluding Sundays and public holidays

The debtors address on the notice is wrong, or it is the debtors previous address.

The bailiff attended more than 12 months following the date of issue on the notice

The bailiff or his office failed to keep a record of the time the notice was given to the debtor

The bailiff company is unable or unwilling to show evidence of keeping a record of the time the notice was given to the debtor

The Law:

Paragraph 7 of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 (the 2007 Act) states:

(1)An enforcement agent may not take control of goods unless the debtor has been given notice.

(2)Regulations must state—

(a)the minimum period of notice;

(b)the form of the notice;

(c)what it must contain;

(d)how it must be given;

(e)who must give it.

(3)The enforcement agent must keep a record of the time when the notice is given.

(4)If regulations authorise it, the court may order in prescribed circumstances that the notice given may be less than the minimum period.

(5)The order may be subject to conditions.

Regulation 6 of the Taking Control of Goods Regulations 2013 states:

Minimum period of notice

6.—(1) Subject to paragraph (3), notice of enforcement must be given to the debtor not less than 7 clear days before the enforcement agent takes control of the debtor’s goods.

(2) Where the period referred to in paragraph (1) includes a Sunday, bank holiday, Good Friday or Christmas Day that day does not count in calculating the period.

(3) The court may order that a specified shorter period of notice may be given to the debtor.

(4) The court may only make an order under paragraph (3) where it is satisfied that, if the order is not made, it is likely that goods of the debtor will be moved to premises other than relevant premises, or otherwise disposed of, in order to avoid the goods being taken control of by the enforcement agent.

Regulation 7 of the Taking Control of Goods Regulations 2013 states:

Form and contents of notice

7. Notice of enforcement must be given in writing, and must contain the following information—

(a)the name and address of the debtor;

(b)the reference number or numbers;

(c)the date of notice;

(d)details of the court judgment or order or enforcement power by virtue of which the debt is enforceable against the debtor

(e)the following information about the debt—;

(i)sufficient details of the debt to enable the debtor to identify the debt correctly;

(ii)the amount of the debt including any interest due as at the date of the notice;

(iii)the amount of any enforcement costs incurred up to the date of notice; and

(iv)the possible additional costs of enforcement if the sum outstanding should remain unpaid as at the date mentioned in paragraph (h);

(f)how and between which hours and on which days payment of the sum outstanding may be made;

(g)a contact telephone number and address at which, and the days on which and the hours between which, the enforcement agent or the enforcement agent’s office may be contacted; and

(h)the date and time by which the sum outstanding must be paid to prevent goods of the debtor being taken control of and sold and the debtor incurring additional costs.

Regulation 8 of the Taking Control of Goods Regulations 2013 states:

Method of giving notice and who must give it

8.—(1) Notice of enforcement must be given—

(a)by post addressed to the debtor at the place, or one of the places, where the debtor usually lives or carries on a trade or business;

(b)by fax or other means of electronic communication;

(c)by delivery by hand through the letter box of the place, or one of the places, where the debtor usually lives or carries on a trade or business;

(d)where there is no letterbox, by affixing the notice at or in a place where it is likely to come to the attention of the debtor;

(e)where the debtor is an individual, to the debtor personally; or

(f)where the debtor is not an individual (but is, for example, a company, corporation or partnership), by delivering the notice to—

(i)the place, or one of the places, where the debtor carries on a trade or business; or

(ii)the registered office of the company or partnership.

(2) Notice must be given by the enforcement agent or the enforcement agent’s office.

Regulation 9 of the Taking Control of Goods Regulations 2013 states:

Time limit for taking control of goods

9.—(1) Subject to paragraphs (2) and (3), the enforcement agent may not take control of goods of the debtor after the expiry of a period of 12 months beginning with the date of notice of enforcement.

(2) Where—

(a)after giving notice of enforcement the enforcement agent enters into an arrangement with the debtor for the repayment, by the debtor, of the sum outstanding by instalments (a repayment arrangement); and

(b)the debtor breaches the terms of the repayment arrangement,

the period in paragraph (1) begins with the date of the debtor’s breach of the repayment arrangement.

(3) The court may order that the period in paragraph (1) be extended by 12 months.

(4) The court may make an order under paragraph (3) only—

(a)on application by the enforcement agent or the creditor;

(b)on one occasion; and

(c)if the court is satisfied that the applicant has reasonable grounds for not taking control of goods of the debtor during the period referred to under paragraph (1).

The law says the bailiff must keep a record of the time the notice was given to the debtor.

If the bailiff is unable to show he kept a record of the time the notice was given, then enforcement may fail under the rule given in the Interpretation Act 1978, which says a document sent by post is given unless evidence of the contrary is proved.

Section 7 Interpretation Act 1978 states:

References to service by post

Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

Ask the bailiff company to give evidence of having recorded the time the notice was given.

The only reliable method of recording the time a document is given by post is a certificate of posting, which is freely available from any post office, because it records the time the document was given by post along with the intended delivery address.

Get a copy of the enforcement power and look at the enforcement address.

If the address on the High Court writ, warrant of control or liability order is wrong, then it proves evidence to the contrary the debtor was given a Notice of Enforcement.

If the bailiff or his office is unable to show that he recorded the time the Notice of Enforcement was given to the debtor, then enforcement fails because it is not compliant with paragraphs 7.1 and 7.3 of Schedule 12 of the Tribunals Courts and Enforcement Act 2007.

As paragraphs 7.1 and 7.3 of Schedule 12 are components of the Schedule 12 enforcement provisions, the law says the bailiff is unable to use the statutory fees regulations, and therefore, may not recover them from the debtor.

The failure to comply with Paragraph 7.3 is evidence to the contrary the notice has not been given to the debtor when deciding whether the Notice of Enforcement is given by post. Section 7 of the Interpretation Act 1978.

The Law:

Regulation 3 of the Taking Control of Goods (Fees) Regulations 2014 states:

Application of these Regulations

These Regulations apply when an enforcement agent uses the Schedule 12 procedure.

If you have already paid bailiffs fees without being given a Notice of Enforcement, or the Notice of Enforcement was given to a previous address, you can recover the money taken by applying for a detailed assessment hearing.

If you have suffered a loss as a result of not being given a Notice of Enforcement, you bring an action in the small claims court.

If goods have been removed, you can apply for an injunction ordering the bailiff to return them.

Bailiff company DCBL (Direct Collection Bailiffs Limited) never give a Notice of Enforcement. Their solicitor successfully persuades judges the notice was given by exhibiting a reconstituted copy of a notice drawn from a computer.

When preparing your legal argument, or appeal, you must place a strict burden of proof the enforcement agent kept a record of the time the notice was given and a reconstituted document is not evidence of keeping a record of the time.

The only irrefutable evidence of keeping a record of the time the notice was given by post it to obtain a freely available Royal Mail certificate of posting which gives the date and intended delivery address of the debtor. This is why Paragraph 7.3 makes this requirement, so it follows section 7 of the Interpretation Act 1978 to make the absence of the certificate of posting to be evidence to the contrary that service of the notice has been properly effected.

Update: 30 August 2018: A judge made a finding of fact DCBL did not give a notice of enforcement. Paragraph 8 of the Judgment of Rooftops South West Limited & Anors vs. Direct Collection Bailiffs Ltd & Claire Sandbrook & Anor 2018 EWHC 2798 (QB) 2018

If only money has been taken, you can apply a chargeback

The Law:

Paragraph 66 of Schedule 12 of the 2007 Act states:

Remedies available to the debtor

66(1)This paragraph applies where an enforcement agent—

(a)breaches a provision of this Schedule, or

(b)acts under an enforcement power under a writ, warrant, liability order or other instrument that is defective.

(2)The breach or defect does not make the enforcement agent, or a person he is acting for, a trespasser.

(3)But the debtor may bring proceedings under this paragraph.

(4)Subject to rules of court, the proceedings may be brought—

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

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

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

(5)In the proceedings the court may—

(a)order goods to be returned to the debtor;

(b)order the enforcement agent or a related party to pay damages in respect of loss suffered by the debtor as a result of the breach or of anything done under the defective instrument.

(6)A related party is either of the following (if different from the enforcement agent)—

(a)the person on whom the enforcement power is conferred,

(b)the creditor.

(7)Sub-paragraph (5) is without prejudice to any other powers of the court.

(8)Sub-paragraph (5)(b) does not apply where the enforcement agent acted in the reasonable belief—

(a)that he was not breaching a provision of this Schedule, or

(b)(as the case may be) that the instrument was not defective

(9)This paragraph is subject to paragraph 59 in the case of a breach of paragraph 58(3).

Abuse of the Court's trust

Some bailiff companies intentionally do not give a Notice of Enforcement because they stand to gain financially with the enforcement stage £235.

Debtors could otherwise pay debt on receipt of the Notice of Enforcement. The bailiff company gains further by ambushing debtors unawares with aggressive and sometimes violent behaviour, or when a TV crew is involved and to acquire artistic license for the TV show.

Bailiffs are often caught out when the enforcement address on the warrant or the writ is unoccupied, with post inside on the doormat, but the Notice of Enforcement claimed to have been sent by post is not there.

Lawyers representing bailiff companies try to defeat this by saying the debtor failed to update vehicle details with the DVLA, and can be "fined £2000". This defence actually works against the bailiff company because it proves the bailiff company relied on DVLA information and therefore, knew the Notice of Enforcement was not given to the debtor at the address attended by the bailiff.

A bailiff company defending a claim for failure to give a Notice of Enforcement knows the court will always believe the debtor was given the notice, therefore bailiffs deliberately do not give the notice and this amounts to an abuse of the court's trust in bailiffs.

Reconstituted Notice of Enforcement

Bailiff companies defending claims for failure to give a Notice of Enforcement may produce a reconstituted copy of the Notice at court. You must persuade the court a reconstituted notice is not sufficient proof of recording the time the notice was given because anyone can make a document on a home computer. The court must follow the provisions of paragraph 7(3) of Schedule 12 of the Tribunals Courts and Enforcement Act 2007 and the bailiff company must show an authentic record of the time the notice was given and the intended delivery address. A post office certificate of posting, which can be obtained for free at any post office.

Bailiff Bounty-hunters

If a bailiff attended your previous address and you are not there, bailiff companies sometimes take the law into their own hands and become bounty-hunters.

They perform debtor tracing action. When they have find your new address, they start ambush enforcement action by turning up without re-issuing a Notice of Enforcement hoping you are less informed about regulations about debtors being given a Notice.

Official Guidelines:

The Government published official guidelines called, Taking Control of Goods: National Standards 2014, of which Paragraph 12 states:

Creditors must not issue a warrant knowing that the debtor is not at the address, as a means of tracing the debtor at no cost.

You can learn if a bailiff has been tracing you by making a reverse search on yourself.

Make a subject access request on credit reference agencies asking for names of companies that have looked at your credit files.

You can also reverse-search the electoral register to see who has been looking for you. Those search results can be given in evidence.

Bailiffs go online and search your name and look through your social media activity.

If your vehicle lifted from the street when a bailiff company found it with an ANPR van, this method of enforcement is invalid when the debtor has not been given a Notice of Enforcement, or the vehicle is not the debtor's.