Frequently Asked Questions in respect of Court Orders - the answers are provided as guidance and should not be relied upon in law. You are advised to seek legal representation for further clarity.
As from April 2014 new legislation has been introduced by the government which clearly defines the stages of enforcement and the costs associated with them. The term Certificated Bailiff has now been replaced with Enforcement Agent.
Regulation 4
Fees recoverable under regulation 4
Table 1
| Fee Stage | Fixed Fee |
Percentage fee (regulation 7): percentage of sum to be recovered exceeding £1500 |
| Compliance stage | £75.00 | 0% |
| Enforcement stage | £235.00 | 7.5% |
| Sale or disposal stage | £110.00 | 7.5% |
The Enforcement Agent may also recover disbursements by way of storage, locksmith, court fees and auction costs and charges. In additional exceptional disbursements may be applied for.
The EA has contacted you because we have been issued with a warrant of control instructing us to collect payment or take control of (legally seize) your goods in respect of a debt which our client says is owed to them.
We are not able to assist you. Our client says that you do owe this sum and we have to act on their instructions and pursue payment unless and until they tell us otherwise. Our client may be able to assist if you have clear evidence that you are being pursued for payment wrongly. However, in relation to penalty charges, there is a set time period for mounting a challenge which has now passed.
We are sorry to have troubled you but we do need to request some evidence that the debtor is no longer resident e.g. a copy Council Tax bill or Tenancy agreement. You are not of course obliged to do anything other than ignore notices addressed to someone else but if we don’t have evidence then we must make our own enquiries which could include attending your address.
You must contact the EA to prevent the enforcement process escalating.
The EA will seek to assess your situation and may take control of your goods. If there is genuine hardship this will be taken into consideration when discussing any arrangement possibilities.
The problem will not go away. though the EA’s have a right to enter and take control of goods they will only use force to gain entry in certain circumstances, where following a controlled goods agreement and a notice to re-enter you fail to pay the amount outstanding in full. Should you deliberately prevent this it could be deemed as wilful refusal for which, in respect of Council Tax, the authority many seek an application for your arrest. It is better to talk to the EA so that the matter can be resolved.
Also, you no longer avoid incurring charges for an enforcement agents visit. The charge is incurred when the visit takes place whether the EA is able to enter the premises or not. If you make payment direct to our client some or all of that payment will be passed to us because the Regulations say that the compliance stage fee (£75) is paid first and the rest of any payment split pro rata between the client debt and our other fees and charges.
In order to leave goods in your possession the EA will ask you to sign a Controlled Goods Agreement. This is an undertaking by you that although still in your possession the goods are now subject to control and could be removed at a later date should you fail to pay. Should you refuse to sign this form the EA will have no alternative but to remove goods immediately.
There may be a problem with the card but if we have taken control and clamped your vehicle, or removed goods pending sale only a customer present transaction will be acceptable. Alternativly you will always be able to pay on line 24/7 on this web site.
At this stage your debt is a confidential matter between the local authority, us and you. Once the debt is discharged the matter is closed.
You will never be asked to pay the same debt twice. We will need confirmation from the council that you have indeed paid. Be advised that you will be liable for any costs incurred by us if payment was not made until after the date on which we were instructed. . Failure to pay these costs will result in further enforcement action and additional costs.
Should a removal take place the goods will be placed in storage. You will have a further period to pay but if you fail to pay the debt and costs, the goods will be sold at auction. We will send you written notice of the sale. If there is a surplus it will be returned to you.If the sale fails to realise the full amount due you will be required to pay the balance.
If you think an enforcement agent has removed your goods and you are not the debtor, or has acted in breach of the Regulations (e.g. by taking control of exempt goods, taking control outside of permitted hours, not giving the required notice, charging incorrect fees etc.) there are a number of legal remedies available to you.
It is important you use the correct remedy otherwise not only is your action likely to fail but you could easily have costs awarded against you. Before commencing any legal proceedings you should seek competent legal advice. You could go to a solicitor but you will of course have to pay for this. FREE, independent and impartial advice can be obtained from www.bailiffadviceonline.co.uk.
Civil Procedure Rule 85 (CPR85): This procedure MUST be used if you think goods have been wrongly removed either because they are exempt or belong to a third party who is not the debtor. CPR85 is intended to replace the need for an injunction and the vast majority of CPR85 claims are settled without need for court proceedings. You must notify us that you intend to use this procedure WITHIN 7 DAYS OF GOODS BEING REMOVED. As soon as we receive notice we will suspend the sale of the goods and, within 3 days, notify our client of your claim. The client has 7 days to notify us whether or not they accept your claim. Their decision will be based on the evidence you provide and we will suggest to you forms of evidence that might assist your claim. If the client accepts your claim you will be able to get your goods back. If we feel your evidence is strong we will accept your claim without even involving the client. But, if our client rejects your claim you must make an application to the County Court under RULE 85.5 and we strongly advise you seek competent advice before doing so. Until the Court makes a determination on your claim it may order you to deposit money with the Court as security in order to secure the release of the goods, or to pay ongoing storage charges.
Section 16, Taking Control of Goods (Fees) Regs. 2014: Proceedings should be brought under this section if you feel that incorrect fees have been charged.
Para. 66, Schedule 12, Tribunals, Courts and Enforcement Act 2007: Proceedings should be brought under this paragraph for any other breach of the Regulations not covered above.
The Courts expect that all parties make every effort to resolve a dispute BEFORE resorting to legal action. We therefore recommend you use our Complaints Procedure first. An exception to this is the CPR85 procedure, which should be used immediately. Whyte & Co will always try to resolve disputes without the need for legal proceedings but, if we feel we are in the right and legal action is taken against us, we will defend the proceedings and if successful and where appropriate, apply for costs.