andrew wilson Andrew James enforced at a wrong address

[GrumpyToSayTheLeast]

I would not wish to have this thread go 'off topic' by discussing the Formal Third Party Claims and Interpleaders (which are thankfully as rare as hens teeth) but the subject of the procedure that should be taken if the debtor has a dispute about goods that may have been taken by the bailiff is clearly one that is deserving of another thread which I would be willing to start in a day or so.

 

This is a subject that I am very passionate about indeed.

 

When the Taking Control of Goods 2013 regulations were introduced in mid 2013 the entire industry (advice sector and enforcement sector) were shocked to see reference to an Interpleader. Following those regs I wrote various media articles and made representation to many government agencies including the Civil Procedure Rule Committee insisting that the regulations should have consisted of a 'preliminary' stage (now commonly referred to as a 'Formal Third Party' claim. I was delighted (and very proud) to hear that my suggestion had been taken on board. It was not possible by this time to amend the legislation and instead the change was introduced under section 85 of the Civil Procedure Rules.

 

A copy of my article on this subject is outlined in post 6 and my proposal in post 5 of the following thread.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?418396-Third-Party-Goods-Interpleaders-and-the-serious-potential-to-damage-the-new-Bailiff-Reforms-on-6th-April

 

But essentially you are saying that the EA's added the fee illegaly as they did not call in a contractor and are no longer allowed to charge if they remove goods themselves. Im sorry, but thats wrong. If an EA start the removal process, then the fee becomes active. There is no need to provide contractors invoices etc. That may only be needed for charging of a locksmith fee or when a "exeptional" removal has taken place.

[Peterbard]

The sale stage fee is due on when attendance is made to move the goods for sale.

 

This is an entirety different stage to the enforcment stage, goods can be removed for storage as part of the taking control of goods mechanism, but his does not merit a sale fee, there must be arrangements for sale, before the fee can be charged.

 

In addition before goods can be sold they must be under control, if goods are exempt or third party origin,no sale can take place therefore no sale fee can legally be charged.

[Coughdrop]

I have to say Grumpy, I think the fee should not have been applied here. The regulations appear clear:

 

http://www.legislation.gov.uk/uksi/2014/1/regulation/5/made

 

Stages of enforcement for which fees may be recovered – enforcement other than under High Court writs:

 

the sale or disposal stage, which comprises all activities relating to enforcement from the first attendance at the property for the purpose of transporting goods to the place of sale, or from commencing preparation for sale if the sale is to be held on the premises, until the completion of the sale or disposal (including application of the proceeds and provision of the information required by regulation 14).

 

(2) Where the goods against which enforcement is sought are securities, the sale or disposal stage commences with the provision of a notice of disposal in accordance with paragraph 49(2) of Schedule 12.

 

If the goods were being taken from the OP as security, had he been provided with the Notice of Disposal? If not, the stage had not commenced.

 

If courts are accepting this as normal practice, they need to change their ways IMO. This will only happen by them being challenged.

[GrumpyToSayTheLeast]

I have to say Grumpy, I think the fee should not have been applied here. The regulations appear clear:

 

http://www.legislation.gov.uk/uksi/2014/1/regulation/5/made

 

If the goods were being taken from the OP as security, had he been provided with the Notice of Disposal? If not, the stage had not commenced.

 

If courts are accepting this as normal practice, they need to change their ways IMO. This will only happen by them being challenged.

 

Again, a complete misunderstanding of the wording in the regulations. I dont believe the OP mentioned any securites being taken.

 

securites are:

Financing or investment instruments (some negotiable, others not) bought and sold in financial markets, such as bonds, debentures, notes, options, shares (stocks), and warrants

 

The above has NOTHING to do with goods being removed for "security"

 

And the rules in the first part say

the sale or disposal stage, which comprises all activities relating to enforcement from the first attendance at the property for the purpose of transporting goods to the place of sale, or from commencing preparation for sale if the sale is to be held on the premises, until the completion of the sale or disposal (including application of the proceeds and provision of the information required by regulation 14).

 

It doesnt say this can be done AFTER the first attendance. It says from the first attendance.

[GrumpyToSayTheLeast]

The sale stage fee is due on when attendance is made to move the goods for sale.

 

This is an entirety different stage to the enforcment stage, goods can be removed for storage as part of the taking control of goods mechanism, but his does not merit a sale fee, there must be arrangements for sale, before the fee can be charged.

 

In addition before goods can be sold they must be under control, if goods are exempt or third party origin,no sale can take place therefore no sale fee can legally be charged.

 

If the debtor fails to pay on the enforcement stage, then we stop, and then start the removal, which immeditaly incurs the fee. It doesnt require us to withdraw and then come back another time. Even common sense dictates that wouldnt work. And goods are never removed for storage as part of a controlled goods agreement. They are removed for sale only.

 

Well please tell me, what is the start of the arrangement to sell the goods?

The removal for sale?

The transportation for sale?

The holding of the goods for 7 days awaiting sale?

The listing of the items in the public domain?

The auctioning of the items?

The cash changing hands ofater the auctioneer has recieved a bid?

 

Im sorry, but the sale stage starts when the removal of goods for sale has begun.

[Peterbard]

Sorry grumpy but goods can be removed for storage as part of the enforcment stage, the act makes specific provision for it.

Ways of taking control

 

13(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;

 

©remove them and secure them elsewhere;

 

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

 

 

Removal and securing goods of the debtor: location

 

http://www.legislation.gov.uk/uksi/2014/1/regulation/4/ma

 

19. Subject to regulation 34 (care of controlled goods), where the enforcement agent takes control of the goods of the debtor under paragraph 13(1)© of Schedule 12 the enforcement agent must, save in exceptional circumstances, remove the goods and secure them in or at a place which is within a reasonable distance from the place where control was taken of the goods.

 

 

 

I am afraid that the act is clear also that the fee commences for the attendance to etc. Of at the enforcment stage ithey would not have attended to remove.

[GrumpyToSayTheLeast]

Yes they are not being removed for storage dodge, they are being removed for sale. We dont remove and then say we will store it until you pay. Its removed and you are told it will be sold in 7+ days and will be secured until sold.

[Peterbard]

Grumpy the section above 13 refers to taking control of goods.

 

13(1)To take control of goods an enforcement agent must do one of the following—

 

©remove them and secure them elsewhere;

 

The sale stage commences on either the attendance at the property where thy are stored and there removal for sale.

 

The word "property" is used rather than premises to indicate it can either be a place of storage or the debtors "premises".(as in 5b)

 

 

©the sale or disposal stage, which comprises all activities relating to enforcement from the first attendance at the property for the purpose of transporting goods to the place of sale, or from commencing preparation for sale if the sale is to be held on the premises, until the completion of the sale or disposal (including application of the proceeds and provision of the information required by regulation 14).

[GrumpyToSayTheLeast]

Yes, you can't remove them and leave them unsecured. They must be secured at all times. That doesn't say stored though.

 

Yes, goods of the debtor dont need to be at the premises and may be stored at another property but this doesn't say they would be stored there by the EA. For instance, an individual may not have assets at his home address(the premises) but if he is trading as, then he may have work assets stored at a separate property where the defendant continues to trade from like a building site. This can apply to goods stored at a third party property where the court has granted permission to attend and remove from the said 3rd party property.

[Peterbard]

Yes, you can't remove them and leave them unsecured. They must be secured at all times. That doesn't say stored though.

 

Yes, goods of the debtor dont need to be at the premises and may be stored at another property but this doesn't say they would be stored there by the EA. For instance, an individual may not have assets at his home address(the premises) but if he is trading as, then he may have work assets stored at a separate property where the defendant continues to trade from like a building site. This can apply to goods stored at a third party property where the court has granted permission to attend and remove from the said 3rd party property.

 

 

 

The section (13) says taking control of goods, only an EA can do this, the subsections underneath gives the methods he uses to perform this, one of which is to remove and secure(store) elsewhere.

 

Yes if a debtor has property at a third party premises or stored elsewhere( a lock up perhaps) the EA would have to apply for a warrant under section 15 for authority to attend.. Incidentally I have seen it elsewhere that section 15 has something to do with forced entry it does not.

[GrumpyToSayTheLeast]

Again, your wrong on that count too. The following is paragraph 15 of schedule 12.

 

Entry under warrant

 

 

15

 

(1)

 

If an enforcement agent applies to the court it may issue a warrant authorising him to enter specified premises to search for and take control of goods.

.

 

(2)

 

Before issuing the warrant the court must be satisfied that all these conditions are met—

.

 

(a)

 

an enforcement power has become exercisable;

.

 

(b)

 

there is reason to believe that there are goods on the premises that the enforcement power will be exercisable to take control of if the warrant is issued;

.

 

©

 

it is reasonable in all the circumstances to issue the warrant.

.

 

(3)

 

The warrant authorises repeated entry to the same premises, subject to any restriction in regulations.

[Bailiff Advice]

Grumpy,

 

Your reasoning about when the sale stage fee of £110 'kick in' is extremely interesting but I would add that last night I was looking back at my many notes from the various discussions and meetings that I have attended this past year and what is very clear indeed is that the Ministry of Justice officials stated many times that the new regulations should see a significant reduction in the level of vehicles actually taken and their reasoning being that the enforcement agent (not the enforcement agency) cannot any longer consider removing goods for sale......unless:

 

he has first satisfied himself that the vehicle (or goods) belong to the debtor and does not fall into any of the 'exempt' categories.

[Peterbard]

Again, your wrong on that count too. The following is paragraph 15 of schedule 12.

 

Entry under warrant

 

 

15

 

(1)

 

If an enforcement agent applies to the court it may issue a warrant authorising him to enter specified premises to search for and take control of goods.

.

 

(2)

 

Before issuing the warrant the court must be satisfied that all these conditions are met—

.

 

(a)

 

an enforcement power has become exercisable;

.

 

(b)

 

there is reason to believe that there are goods on the premises that the enforcement power will be exercisable to take control of if the warrant is issued;

.

 

©

 

it is reasonable in all the circumstances to issue the warrant.

.

 

(3)

 

The warrant authorises repeated entry to the same premises, subject to any restriction in regulations.

 

Sorry Grumpy but I am not wrong, there is nothing in that paragraph which says anything other than what i have said. Incidentally this is also the opinion of JK, and makes perfect sense.

 

Section 15 merely permits the EA to attend premises on the same terms as section 14 does to "relevant premises", ie where the debtor lives or works.

 

It is not surprising that the EA do not understand much of this it is why currently as BA says there are so many mistaken fees charged at this stage.

 

Also I have made no other "mistakes on this thread.

[Peterbard]

Perhaps I should start a thread explaining this section of the act more fully, as we seem to have gone way off topic, however for completeness.

 

As said section 15 merely gives the EA the right to attend on specified premises, ie those not covered by section 14 or 16.

 

However he may apply for an additional warrant from the court to force entry, to be included within the section 15 warrant which does allow the use of reasonable force, this is the function of section 21

 

21(1)This paragraph applies if an enforcement agent is applying for power to enter premises under a warrant under paragraph 15.

(2)If the enforcement agent applies to the court it may include in the warrant provision authorising him to use, if necessary, reasonable force to enter the premises or to do anything for which entry is authorised.

[Peterbard]

Grumpy,

 

Your reasoning about when the sale stage fee of £110 'kick in' is extremely interesting but I would add that last night I was looking back at my many notes from the various discussions and meetings that I have attended this past year and what is very clear indeed is that the Ministry of Justice officials stated many times that the new regulations should see a significant reduction in the level of vehicles actually taken and their reasoning being that the enforcement agent (not the enforcement agency) cannot any longer consider removing goods for sale......unless:

 

he has first satisfied himself that the vehicle (or goods) belong to the debtor and does not fall into any of the 'exempt' categories.

 

Yes this is because goods have to be taken under control before they are removed for sale, this means that the control stage must be completed.

 

The function of this is as you say to ensure taht debtors are given the right to either pay or provide evidence of exemption.

 

Many Eas are unfortunately under the impression that the TCE merely enshrines the old common law, it does not, in the main part it issues a completely new regime.

[lookinforinfo]

I think what GTSTL is saying is that when, after taking control of the goods, the debtor is saying that he cannot or will not pay regardless of how many hours they are given,

then it is legitimate to continue to the next stage of the process especially when commercial goods are concerned.

If I am wrong then I am sure to be corrected.

[GrumpyToSayTheLeast]

That's exactly what I'm on about.

[unclebulgaria67]

I think what GTSTL is saying is that when, after taking control of the goods, the debtor is saying that he cannot or will not pay regardless of how many hours they are given,

then it is legitimate to continue to the next stage of the process especially when commercial goods are concerned.

If I am wrong then I am sure to be corrected.

 

They could not take the commercial goods because they belonged to the debtors employer. The person who owed the warrant amount appears to just be a manager of the business and lived in a flat above the premises. They were not a director of the limited company business.

 

Apparently the EA who attended was shown evidence of the limited company owning the goods at the premises. To threaten the goods must surely be against the rules, as otherwise any EA could go to the premises of any company where the debtor just happened to live/work and take the goods of the business. For example there are many Chefs who are provided with accommodation in small hotels/pubs and they would register a car at the address. Why would an EA be able to threaten the hotel or pubs goods for a debt belonging to the Chef when it did not relate to the business and the Chef did not own the goods ?

[Peterbard]

I think what GTSTL is saying is that when, after taking control of the goods, the debtor is saying that he cannot or will not pay regardless of how many hours they are given,

then it is legitimate to continue to the next stage of the process especially when commercial goods are concerned.

If I am wrong then I am sure to be corrected.

 

I dare say that this may be the case, however unlikely.

 

But the fact remains that the sale fee cannot be charged in this case. The regulations are clear that the EA must have attended with the intention of taking goods for sale, if it was an enforcment stage (first visit) he attended to take control of goods, not to remove for sale, the fees regs are clear in this.

 

They are distinct and serrate stages i both the legislation and the regulations, in fact there was a section in the consultation document which referred to the fact that they should be so, for the protection of the debtor.

[Peterbard]

They could not take the commercial goods because they belonged to the debtors employer. The person who owed the warrant amount appears to just be a manager of the business and lived in a flat above the premises. They were not a director of the limited company business.

 

Apparently the EA who attended was shown evidence of the limited company owning the goods at the premises. To threaten the goods must surely be against the rules, as otherwise any EA could go to the premises of any company where the debtor just happened to live/work and take the goods of the business. For example there are many Chefs who are provided with accommodation in small hotels/pubs and they would register a car at the address. Why would an EA be able to threaten the hotel or pubs goods for a debt belonging to the Chef when it did not relate to the business and the Chef did not own the goods ?

 

Yes this is another point, the legislation sepperates the enforcment and sale stages i order that such things can be resolved before goods are removed for sale.

 

The act is also clear that only goods which are under control can be sold.

 

Third party goods cannot be taken under control(section 10).

 

Removal for goods for the purpose of sale cannt be commenced on goods which are not under control , so again the sale fee would not be due.

 

 

It is a very well written and comprehensive piece of legislation.

[unclebulgaria67]

Yes this is another point, the legislation sepperates the enforcment and sale stages i order that such things can be resolved before goods are removed for sale.

 

The act is also clear that only goods which are under control can be sold.

 

Third party goods cannot be taken under control(section 10).

 

Removal for goods for the purpose of sale cannt be commenced on goods which are not under control , so again the sale fee would not be due.

 

 

It is a very well written and comprehensive piece of legislation.

 

Not that well written, if there is an argument about what it is saying. I think they should have put a clause in to prevent an EA taking or threatening the goods of any business, where the warranted related to a purely private liability.

[Peterbard]

Not that well written, if there is an argument about what it is saying. I think they should have put a clause in to prevent an EA taking or threatening the goods of any business, where the warranted related to a purely private liability.

 

I agree that there should be guidance notes, and I think that this is being addressed as we speak, BA will know more about this.

[Peterbard]

Incedentally I do not think thare is any argument that goods belonging to a Limited company should not be taken under control as they do not belong to the debtor.

 

The period between the taking control and the removal for sale is designed to give opportunity for the debtor to provide proof to prevent the removal for sale.

[Coughdrop]

Possibly one on which to agree to disagree for the time being?

 

I'm convinced the EA was wrong here. My last post was entirely twisted to justify what is, to my mind, a fragile argument. I highlighted the first part of it, that first part needing to be read in its entirety rather than a short phrase being decontextualised.

 

However, I don't believe the EA should have charged as he did. I know the enforcement company in question, and they were total crooks. I've no reason to believe they don't still twist things as far as they can.

 

Anything which can be done to get shot of EA's who perform these actions should be done. They increase costs to the debtor unnecessarily. Even here, it is indicated the courts condone this practice. If that is the case, the courts need calling to account as well.

 

The days of bailiffs charging for things they simply shouldn't (and doing things they simply shoudn't) should be gone. As long as bailiffs look for ways of maximising their income from enforcement, people should fight to call them to account for doing so.

 

The most common thing by far which seems to kick start this process is their refusal to accept affordable and sustainable repayment arrangements. Until such time as they have to do this, there is going to be a degree of conflict.

[GrumpyToSayTheLeast]

You guys have very little idea of how the real world works in relation to enforcement. Do you realise how many times we go to a business chasing a ltd company only to be told and shown proof that all goods belong to the director personally and are leased or rented or just used by the limited company.

 

What you are basically saying is that until the bailiff proves who owns goods, he cant touch them. That's wrong.

 

You are saying that on a first visit, the EA is not allowed to remove goods for sale. As obviously if he is not allowed to add a sale fee, then obviously he is not allowed to remove.

That's wrong.

 

And paragraph 15 doesn't say a warrant to attend and premises. It clearly states a warrant to ENTER premises.