Transforming bailiff action
by David Carter on 22 February 2012
The long-awaited consultation on bailiff action has been launched by the Ministry of Justice and is open until 14th May 2012. The aim is to stop improper action by a minority of bailiffs and make the entire enforcement process easier to understand for all involved.
This consultation follows on from the recently published updated National Standards for Enforcement Agents (certificated bailiffs, bailiffs and High Court Enforcement Officers) and builds on these by transforming elements of the voluntary code into a legally binding regime.
The consultation paper also needs to be read in conjunction with Part 3 of the Tribunals, Courts and Enforcement Act 2007 (the TCE Act). This has yet to be implemented and will unify the existing law relating to seizure and sale of goods for most purposes. It prescribes the new procedure to be followed by enforcement agents when seizing goods, which is to be known as taking control of goods.
The act will also abolish the current common law right to distrain for commercial rent.
I welcome the MoJ’s work in applying consistency and clarity to an industry that is often confusing and ambiguous, with some legislation being hundreds of years old, as well as attempts to set a fee structure fit for the 21st century, not the 1920s!
However, I do have some concerns about some areas where there is a potential negative impact on creditors. The law and cultural climate is more on the side of the debtor at the moment, with some die-hard “won’t pay” debtors out there. In particular I am concerned about:
- Debtors will be afforded more protection, which might well mean fewer creditors getting paid, for example the requirement to send a 7 day letter before High Court enforcement would allow debtors time to hide and sell goods
- The requirement to leave a car clamped for 24 hours before removal would see many clamps cut off and cars gone
- Many aspects of enforcement would require applications to court, and the time delay could become seriously long, particularly as many courts are closing and those still open are short-staffed already
- While I welcome a review of the fees, the structure proposed would require a significant remodelling of most business in the industry and may see the Enforcement Agents becoming essentially post men
I am still working through the various long-term implications of the consultation paper and will be writing another post with more feedback shortly.
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Disclaimer: The statements and opinions expressed in this article are those of the author and do not necessarily reflect those of Sheriffs High Court Enforcement Ltd, trading as The Sheriffs Office. Sheriffs High Court Enforcement Ltd does not take any responsibility for the views of the author. The author will not be held responsible for any comments posted by visitors to this site. Please note that this article does not constitute legal advice. The author has used his best endeavours to make this article as accurate and complete as possible, but requests that the reader be aware that the law of England and Wales frequently changes. The author strongly advises the reader to take legal advice before embarking on any enforcement action.
