WHEN THE BAILIFF COMES
The bailiff must inform you of his intention to visit and state the purpose of it.
The Bailiff Manual, section10.1 says
“On issue of the warrant the debtor will be informed by the N326
form (notice of issue of warrant of execution) that they have not
made payment under the judgement and the claimant has asked for
a warrant to be issued for their goods to be seized and removed.”
Removal of the implied right of access
When you know a bailiff is coming, you can issue formal notice to the collection company of the removal of their implied right of access to your property. If he enters the property after that and refuses to leave when told to do so then the following applies.
“A person having been told to leave is now under a duty to withdraw from the property with all due reasonable speed and failure to do so he is not thereafter acting in the execution of his duty and becomes a trespasser with any subsequent levy made being invalid and attracts a liability under a claim for damages, Morris v Beardmore [1980] 71 Cr App 256.”
A bailiff rendered a trespasser is liable for penalties in tort and the entry may be in breach of Article 8 of the European Convention on Human Rights if entry is not made in accordance with the law, Jokinen v Finland [2009] 37233/07
You may use reasonable force to remove him
“Vaughan v McKenzie [1969] 1 QB 557 if the debtor strikes the bailiff over the head with a full milk bottle after making a forced entry, the debtor is not guilty of assault because the bailiff was there illegally, likewise R. v Tucker at Hove Trial Centre Crown Court, December 2012 if the debtor gives the bailiff a good slap”.
He must have the following papers on him
His valid bailiff certificate, the original and genuine court issued warrant, and you should check them immediately. If he does not have them then call the police, and if the police are already there because he brought them, tell them that -
The 'law' says, under Part 52.8(2)(c) of the Criminal Procedure Rules 2013, the bailiff has to show the warrant on demand as well as his certificate to the debtor and this is supported by the judgment of Andrews v Bolton Borough Council [2011]
also
“The constable must check the bailiff's certificate and his Warrant and if he is unable to show both documents then the constable is required to place the person under arrest for committing an offence under section 125b of the County Courts Act 1984 or Section 78(7) of the Road Traffic Act 1991 or Section 2 of the Fraud Act 2006 as he is required to carry them in an intelligible form when attending a debtors address. Buller's Case [1587] 1 Leonard 50 or Andrews v Bolton Borough Council [2011] HHJ Holman, Bolton county court, June 2011 ”
If he does not have these then insist the police arrest him. Their failure to do so attracts a claim. They become jointly liable with the authority he was working under, so it's a good idea to record all this.
Bailiff right of entry
The Bailiff Manual, section10.5 Right of entry
“Before you have levied you may enter the debtors address given on the warrant in the following circumstances:
Where you are invited in by the debtor or another responsible person (not a child).
Where a door is already open or ajar.
Where a door is closed but not locked (i.e. you can open the door by lifting a latch, turning a handle or gently pushing the door).
Through an open window, by releasing a catch on a window which is already open.
You may also enter a building not connected to the debtors address (e.g. a shed, garage, barn or summerhouse).”
If you are speaking to a bailiff at the door and need to leave for any reason – lock it behind you when you go! Do not simply close it. If he does enter you can push him out.
Peacefully refusing entry
The Bailiff Manual,10.6 Peaceful entry refused , says
“If the debtor refuses to allow you in peacefully, note the date, time, and result of your visit on the warrant. Refer the warrant to your Bailiff Manager who will verify the return. You should make as full a report as possible on what took place so that the creditor can understand the circumstances.
You may not:
Push past the occupant if they refuse to let you in.
Try to open a door which is locked, barred, or bolted.
Unfasten a closed window (even if it is not locked)”.
The bailiff cannot levy against a 3rd party
“Bailiffs cannot levy on someone else's goods or vehicles for your debt, the Local Government Ombudsman's decision of 10 July 2012 complaint no 11 007 684 paragraphs 44 & 45”.
If he levies for his fees he wrong to do so.
Magistrates Court fines. There is no direct contractual relationship on defaulters and the enforcement company, and the company bears the risk of running the service if he is unable to recover the fine. Elias, LJ presiding in JBW Ltd v Ministry of Justice [2012] EWCA Civ 8.
Also, “Bailiffs cannot sue you for his fees if you pay the debt directly to the creditor or authority: JBW Enforcement Ltd v City of Westminster [2009] EWHC 2697 (QB) ”
The key word here is “sue”. He must sue for his fees, having no automatic right to them. It is just a civil claim against you for money. He has no contract with you and you are not obliged to pay.
The bailiff cannot take goods from you just to pay his fees
“Seizing goods just to pay the fees of distraint is wrongful, Nargett v Nias [1859] 1 E&E 439 ”
is now in force (as of 1 October 2012 ). These provisions are in section 54 of the Protection of Freedoms Act 2012. You can download a Pdf of that act from my post of it on this site.
The original warrant does not have his fees endorsed on it but the copy they make will have. This copy which he presents is how he tricks you into paying his fees.
Statutory Instruments
1993 No. 2073 (L.18)
COUNTY COURTS
The Enforcement of Road Traffic Debts Order 1993
Enforcement of specified debts
7. (1) The authority shall insert or indorse in or upon every warrant of execution issued by it the total amount to be levied, exclusive of the fees for its execution.
The original Warrant will direct him to collect the full amount shown there (the court ordered amount) as well as his costs.
A magistrate has no authority to make you liable to pay his fees. He cannot put you into a default contract with the bailiff. This direction is no more than a court acknowledgement that he can charge for his services. It does not make you immediately liable to pay them.
The bailiff cannot levy your goods in your absence.
“Levying on your goods in your absence is not valid” Ambrose v Nottingham City Council [2004]
So, if the police arrest you for some reason and take you away, for example, he cannot levy. If you are simply not at home he cannot levy.
The bailiff cannot clamp a car on private land.
Section 54 of the Protection of Freedoms Act, 2012, created a new criminal offence to clamp a vehicle without lawful authority on private land. “Clamping of motor vehicles on private land is illegal. ”
Bailiffs do not have lawful authority for using a wheel clamp on a debtors vehicle if it is on private land, under regulation 16 of the Taking Control of Goods Regulations 2013.
Never, ever let a bailiff into your home.
A bailiff has a right to break into your home only under the following conditions.
He has a signed walking possession agreement.
The levy is for unpaid Tax – Stamp duty – Criminal fines.
Threat of forced entry
If the bailiff threatens to attend your home with a locksmith then he is subject to the following - Section 3, Criminal Damage Act 1971, and contrary to Khazanchi v Faircharm 1998.
“ Bailiffs cannot force their way into a private dwelling”, Grove v Eastern Gas [1952] 1 KB 77
“If a police constable aids a bailiff to gain forceful entry by using a police power of entry, then nothing that follows is valid and the police force is jointly liable for damages with the authority the bailiff is working under”. This precedent set by the case of Skidmore v Booth [1834] 6 C&P 777.
The constable is personally liable for damages in a civil claim; and may also be subject to a disciplinary action
following Lister and Others v. Hesley Hall Limited [2001] UKHL 22.
Abandoned levies
If a bailiff levies goods then leaves without a signed walking possession agreement it is an abandoned levy and he has no right to come back to take them or to force entry to do so.
Bannister v Hyde [1860] 2 E&E 627
levying on goods then leaving without a walking possession agreement is sign of an abandoned levy, and the unsigned agreement is considered abandoned.
Evans v South Ribble Borough Council (1991)
Global levy
The bailiff cannot do a global levy. Every levy must be “fully particularised” as per LCJ Lord Tenterden in the case of Green v Chapman [1827] Feb 20 1830 6a, KBD.
The Bailiff Manual, section 10.5 says
“It is not sufficient to note ‘household goods’ or ‘two cars’ as a levy. The levy must specifically identify the goods with any identification numbers available and the make and model of the item you are levying on. This may be particularly important if the goods are rescued, claimed by a third party or removed for sale.”
Constructive levy
A constructive levy is when a bailiff cannot gain entry but merely lists what he sees from outside of the property - through a window, for example. This is an invalid levy.
Liability on a claim
The authority the bailiff works under – the one who hired him – is liable for any tort worked by the bailiff. See section 6 of the Bailiff Manual. You sue the authority, not the bailiff, and if the bailiff is in the wrong then the authority may go for the bailiff's bond – the bailiff is bonded for only ten thousand pounds.
Police assistance
If the police assist to force entry they are jointly liable on the claim, or if the police force you to hand over cash or goods then they are guilty of conversion and the chief constable is liable on the claim.
“If a police constable aids a bailiff to gain forceful entry by using a police power of entry, then nothing that follows is valid and the police force is jointly liable for damages with the authority the bailiff is working under” - the precedent set by the case of Skidmore v Booth [1834] 6 C&P 777.
The constable is personally liable for damages in a civil claim following Lister and Others v Hesley Hall Limited [2001] UKHL 22 and may also be subject to a disciplinary action”.
Who can execute a warrant
Only a county court bailiff can execute a warrant issued by the county court and the district judge is the liable party for any tort worked by that bailiff. See section 6 of The Bailiff Manual.
Some warrants, however, may be transferred to the High Court.
High Court Enforcement Officers execute High Court warrants. Magistrates use civil enforcement officers. If the amount of the debt is up to £600 then a county court bailiff can execute. If it is for £5,000 or more then it must go to High Court enforcement officers. If the debt is for Consumer Credit it can only be enforced in the County Court.
Paying after a warrant is issued
Even if you pay the creditor directly the bailiff is still instructed to levy your goods so you need proof of payment.
The Bailiff Manual, section 10.4 says
“You must also levy on goods:
If the debtor claims to have paid the outstanding debt.
If the debtor pays the outstanding debt by cheque.
If the debtor claims that another Bailiff or sheriff’s officer has already levied on goods you must establish the details
If someone else claims the goods belong to them but cannot prove it.
Where the debtor claims to have made an application to suspend or an application to set aside judgement.”
The bailiff Manual, Section 10.10 says
“You must levy even when told that a certificated Bailiff has already levied.”
Other types of debt enforcement officer
There are four other types of debt enforcement officers.
High Court Enforcement Officers (HCEOs) are appointed on behalf of the Lord Chancellor and are responsible for enforcing High Court orders and those county court orders that have been transferred to the High Court. They are instructed by creditors in the same way as other enforcement officers. Complaints from the public concerning HCEOs should be to the firm the enforcement officer works for or to the High Court Enforcement Officers Association to which all HCEOs must belong.
More details can be found at
www.hceoa.org.uk Certificated Bailiffs
Certificated Bailiffs (sometimes called ‘certified Bailiffs’) hold a certificate issued by a circuit judge authorising them to levy. Each county court must display on a public notice board a list of all the certificated Bailiffs who have certificates issued by that court.
A central Register of Certificated Bailiffs and High Court Enforcement Officers is kept by the Enforcement Team in HMCTS centre and is available on line at
http://certificatedBailiffs.justice.gov.uk/CertificatedBailiffs/ A complaint about a certificated Bailiff should be made to a circuit judge at the county court where the certificate was issued. The judge may order the certificated Bailiff to appear in court and give an
account of their actions and can cancel the certificate if they consider the Bailiff unfit to hold it.
Government Debt Enforcement Officers
Government debt enforcement officers are employed by, among others, HM Revenue and Customs. In certain circumstances they can levy and remove goods. Complaints about them are made to
their employers.
‘Private’ Bailiffs
Private Bailiffs are hired or employed by the creditor and complaints about them should be addressed to the creditor.
Musashi.
I wrote this up a wee while ago but was too busy to post it and it got lost in the amount of stuff I was getting up to. There are certain amendents to existing laws which are about to come into force which may well change one or two parts of this - essentially making them inapplicable. The rest of it, however, is still good and valid.
The changes are being made to The Domestic Violence Crime and Disorder Act and the Tribunals Courts and Enforcemnt Act.
We have had such a powerful effect on them that they have had to resort to law changes to keep them winning the game.
I suggest that you look at these amendments to inform yourselves. In particular look at section 22 (taking control of goods) of the Tribunal court and enforcement act, also section 20 referring back to 14, 15, and 16.
Basically they are obliging the police to help civil inforcements and removing trespass if there is a "lawful warrant" in place.
read it for yourself, please.
Musashi.
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Sat Nov 12, 2022 5:54 am by S T Rawman
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