REFORM AND CHANGE
PROFESSIONAL PRACTICE
livelihood is at stake. Consequently this will only provide redress in serious cases, and many complainants, particularly vulnerable persons, will be put off by the idea of involving the court.
The reforms contain some important protections for debtors. Before a bailiff can take control of goods, the debtor must be given a written notice stating that enforcement action is being pursued. The notice must set out the debt and interest owed, enforcement costs to date and potential further enforcement costs. The bailiff must then wait at least seven days before taking control of the debtor’s goods, either by removing them or securing them at the property although this period can be reduced by the court if the debtor is likely to use the time to avoid enforcement. After the notice has been issued, the bailiffs must take control of goods within 12 months, unless, this period is extended by the court. If a repayment plan is agreed, the 12-month time limit does not start until the debtor misses a payment.
Gaining entry
Bailiffs will only be allowed to enter residential premises between 6am and 9pm, although on any day of the year, and only by any door or usual means of entry – so not, for example, through windows. The reforms also provide for a
standardised agreement – a controlled goods agreement – by which bailiffs take control of goods within the premises, but do not remove them for sale unless the debtor fails to repay the debt by a specifi ed date. Bailiffs will not be able to take control of basic domestic items, such as cookers, bedding or lights. The agreement will include an inventory of goods taken under control and the agreed repayment terms. Debtors will be able to authorise other persons to enter into controlled goods agreements on their behalf, if they are absent, but want to avoid goods being removed.
The reforms also provide further regulation of the sale of goods. Bailiffs must wait at least seven days after removing goods before they are sold, unless they will lose signifi cant value in that time. For business premises only, sale on the premises will be permitted. Where enforcement action recovers insuffi cient funds to cover the debt and costs, the funds will be divided pro rata between the creditor and the bailiff.
www.britishparking.co.uk
Bailiff’s fees have often attracted criticism in the past. The reforms bring in new fee structures for the costs of enforcement. The provisions are detailed, but it is hoped that they will make enforcement costs more transparent and proportionate across the industry.
This is an area where a robust, user-friendly
complaints procedure could have been of great benefi t
Protections for the vulnerable The reforms contain some protections for vulnerable people. For example, bailiffs will not be able to enter premises or take control of goods where only children or vulnerable adults are present. Also bailiffs may also not enter into a controlled goods agreement with a person if they do not think the person understands the effect of the agreement. There will not be a defi nition of who is vulnerable, but there will be supporting guidance. Although these protections are welcome, this is an area where a robust, user-friendly complaints procedure could have been of great benefi t. The reforms will not now permit bailiffs to use force against persons, except in self- defence. However, they will, if necessary, be able to use reasonable force to enter business premises when executing a High Court or county court debt. They will also be able to use reasonable force to re-enter residential premises where a controlled goods agreement is in place, which the debtor has breached, and the enforcement agent gives notice of intending to return to the premises. If necessary, a bailiff will be able to remain on business premises to guard secured goods or even secure the whole of the business premises, if it is not possible to secure the goods otherwise.
Exception to the clamping ban The reforms give lawful authority for bailiffs to clamp vehicles in some circumstances, and are an exception to the ban on clamping on private land contained in the Protection of Freedoms Act 2012.
ABOUT the AUTHOR:
Matthew Orme is a solicitor with Bates, Wells and Braithwaite
On 25 April 2013, legislation was passed amending part 3 of the Tribunals Courts and Enforcement Act 2007. The government intends to bring part 3 of the Act into force in April 2014. In July 2013 the government will also publish supporting regulations, to come into force in April 2014. April 2014 is a milestone in the bailiff
service, and the reforms will help to ensure a wider professionalism in parking services.
JUNE 2013 31
R.NAGY / SHUTTERSTOCK
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