You did not receive a Notice of Enforcement

The law says all debtor must receive a Notice of Enforcement at least seven business days BEFORE any bailiff turns up.

This is what a Notice of Enforcement looks like

If you were not given one of these, then everything that follows is invalid.

If your car is unexpectedly clamped and the debt is a traffic debt, it is likely you moved recently and the bailiff has breached regulations by enforcing at your new address without giving a statutory Notice of Enforcement.

You may apply for an injunction, but before making the application at court, you must exchange communication with the bailiff company and the bailiff to tell them what they have done wrong, and give them an opportunity to return control of the car back to you according to a deadline

If the bailiff does not comply with your notice, and continues to keep your car "on clamp", you may injunct the bailiff and apply for your damages for the loss of use of the car together with your costs.

After the bailiff had been injuncted and control of the car is returned to you, the enforcement of the original debt becomes financially toxic for the bailiff company, and they stand little chance of ever recovering the debt.

That does not mean you are off the hook for the debt, it means the bailiff will find it difficult to recover it or recover their enforcement fees. It becomes a lost cause.

Paragraph 7(1) of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 states;

(1)An enforcement agent may not take control of goods unless the debtor has been given notice.

Regulation 6(1) of the Taking Control of Goods Regulations 2013 states;

Minimum period of notice

6.—(1) Subject to paragraph (3), notice of enforcement must be given to the debtor not less than 7 clear days before the enforcement agent takes control of the debtor’s goods.

(2) Where the period referred to in paragraph (1) includes a Sunday, bank holiday, Good Friday or Christmas Day that day does not count in calculating the period.

The method of delivery can be by post or email as described under Regulation 8 Taking Control of Goods Regulations 2013, which states;

by post addressed to the debtor at the place, or one of the places, where the debtor usually lives or carries on a trade or business;

If these regulations have not been complied with then everything that took place at this visit and everything that followed is invalid

That is because the bailiff failed to comply with Paragraph 7(1) of Schedule 12 and that amounts to a breach of that paragraph. The bailiff is liable for an action brought for breach of any part of Schedule 12 under paragraph 66 of that Schedule, which states;

66(1)This paragraph applies where an enforcement agent—

(a)breaches a provision of this Schedule, or

(b)acts under an enforcement power under a writ, warrant, liability order or other instrument that is defective.

(2)The breach or defect does not make the enforcement agent, or a person he is acting for, a trespasser.

(3)But the debtor may bring proceedings under this paragraph.

(4)Subject to rules of court, the proceedings may be brought—

(a)in the High Court, in relation to an enforcement power under a writ of the High Court;

(b)in a county court, in relation to an enforcement power under a warrant issued by a county court;

(c)in any other case, in the High Court or a county court.

(5)In the proceedings the court may—

(a)order goods to be returned to the debtor;

(b)order the enforcement agent or a related party to pay damages in respect of loss suffered by the debtor as a result of the breach or of anything done under the defective instrument.

(6)A related party is either of the following (if different from the enforcement agent)—

(a)the person on whom the enforcement power is conferred,

(b)the creditor.

(7)Sub-paragraph (5) is without prejudice to any other powers of the court.

(8)Sub-paragraph (5)(b) does not apply where the enforcement agent acted in the reasonable belief—

(a)that he was not breaching a provision of this Schedule, or

(b)(as the case may be) that the instrument was not defective.

(9)This paragraph is subject to paragraph 59 in the case of a breach of paragraph 58(3).

 

If you did not receive a notice, or you were not living or working at the address the notice was given, then you make a sworn statement of truth proving the notice has not been given.

Some bailiff companies habitually do not give a Notice of Enforcement. They gain substantially with further fee of £235 because the debtor can pay debt when he was given the Notice of Enforcement. The bailiff company gains further by calling on debtors unexpectedly with aggressive behaviour.

Bailiffs are often caught out when the warrant address is unoccupied, and mail is piling up inside the door and the Notice is not there.

The bailiff company may try to defeat this by saying you did not update your vehicle details with the DVLA and you can be "fined £2000". That is evidence in itself the Notice of Enforcement was not given because they admitted giving to the address given to them by the DVLA.

Without a Notice of Enforcement, all bailiffs fees are revoked

Regulation 3 of the Taking Control of Goods (Fees) Regulations 2014 states;

3. These Regulations apply when an enforcement agent uses the Schedule 12 procedure.

And paragraph 7(1) of a component of the Schedule 12 procedure, which states;

(1)An enforcement agent may not take control of goods unless the debtor has been given notice.

;If the fees have already been paid, then you can reclaim them by bringing an action under paragraph 66(3) of Schedule 12 of the Tribunals Courts and Enforcement Act 2007.

Here is how to bring an action in the small claims court.

Or you can do a chargeback.

Warning: Reconstituted Notice of Enforcement

Bailiff companies defending claims at court for failure to give a Notice of Enforcement may produce a reconstituted copy of the Notice at court.

You must persuade the court a reconstituted notice is not sufficient proof of recording the time the notice was given, and enforcement fails on provision of paragraph 7(3) of Schedule 12 of the Tribunals Courts and Enforcement Act 2007.

It is only a reproduction of the Notice drawn from a computer. It is not evidence the enforcement agent recorded the time the Notice was given.

You may be a victim of bounty-hunters

If a bailiff has been to your previous address and you are not there, bailiff companies sometimes take the law into their own hands and become bounty-hunters. They perform debtor tracing action. When they have found your new address, they start surprise enforcement action by turning up without re-issuing a Notice of Enforcement hoping you are less informed about regulations about debtors being given a Notice.

You can find out if a bailiff has been trying to trace you by looking for their fingerprint trail. Make a subject access request on credit reference agencies asking for names of companies that have looked your credit files. You can also search the electoral register to see who has been searching for you. These can be used in court as evidence the bailiff executed enforcement action knowing they did not comply with the law.

You may have had your vehicle lifted from the street after a bailiff company found it using an ANPR van. This action is also invalid if the debtor has not been given notice, or the owner of the vehicle is not the debtor.

Direct Collection Bailiffs Limited. Featured on Channel 5 Can't Pay We'll Take it Away. A judge made a finding of fact they do not give a notice of enforcement. Paragraph 8 of the Judgment of Rooftops South West Limited & Anors vs. Direct Collection Bailiffs Ltd & Claire Sandbrook & Anor 2018 EWHC 2798 (QB) 2018