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.
The legislation provides that the debtor is liable to pay enforcement agent fees. These are as follows:
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 compliance fee becomes due and payable immediately we receive a case.
The enforcement fee becomes payable on the first occasion that an EA visits your address whether they make contact with you on that visit or not.
EA fees are added to the debt owed to the Council and cannot be separated from it. It isn’t possible to avoid paying fees by making payment direct to the Council. Regardless of who payment is made to, the Regulations say that the compliance stage fee (£75) must be paid first and the remainder of any payment split pro-rata between the client debt and EA fees.
The Enforcement Agent may also recover disbursements by way of storage, locksmith, court fees and auction costs and charges. In addition, 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 unable to assist you. Our client says that you do owe this sum and we must 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 and this expired before the warrant was referred to us.
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 to confirm who is living there.
You must contact us to prevent the enforcement process escalating and further fees being incurred.
You should contact us immediately. We may ask for evidence of your present financial and other circumstances so that these can be considered. We will do our best to agree a repayment arrangement that is affordable to you. If there is genuine financial hardship or you are vulnerable this will also be taken into consideration.
The problem will not go away. Though EA’s have a right to enter and take control of goods they will only use force to gain re-entry following a controlled goods agreement and a notice to re-enter, if you fail to pay the amount outstanding. Any vehicle that you own may be seized. If we are unable to collect the debt the local authority has many options for recovering outstanding Council Tax. These include attachment of earnings, attachment of benefits, a charging order against your home if you own your own home and the outstanding Council Tax is for that home, insolvency proceedings (bankruptcy for individuals and liquidation for limited companies) and committal proceedings. You can be committed to a term of imprisonment of up to 90 days for non-payment of Council Tax and Business Rates.
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 the EA will have no alternative but to remove goods immediately.
This may be due to a problem with your card but if we have taken control and clamped your vehicle or removed goods pending sale, we will only accept payment in cleared funds e.g. bank transfer, cash, bankers draft.
Councils generally do not pass details of summonses or liability orders to credit agencies. Lenders typically will not know about the debt through a standard credit check.
However, while not on your credit report, a liability order is a public record. Some lenders (especially mortgage lenders) or landlords may perform deeper public record searches or "affordability checks" that could uncover the order.
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 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 collect your goods. If we feel your evidence is strong, we will accept your claim without even involving the client. 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 decides on your claim it may order you to deposit money with the Court as security 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.