Bankruptcy & insolvency

Note: Individuals and businesses subject to Individual Voluntary Arrangements (IVA's)'s Debt Relief Orders (DRO's) and county court administration orders are substantially protected from recovery action and persons facing enforcement action must notify their practitioner or trustee. Property of a bankrupt's estate vested in a trustee can still be seized especially for the recovery of a statutory debt.

All enforcement agents are required to make enquiries about possible insolvency, Balme v Hutton [1833] 9 Bing 471

Multiple debts

Where enforcement agents have multiple warrants for a single debtor, an enforcement agent must take control of goods, and sell or dispose of these goods, on the same occasion except where it is not practical to do so. Paragraph 7 of the Taking Control of Goods: National Standards 2014

The Local Government Ombudsman decided in a report into complaint no 11 007 684 against Blaby District Council that multiple levies amounts to maladministration, paragraphs 43 & 46 multiple fee-charging is wholly unreasonable.

A fee of £75 compliance stage applies to each debt, but only one £235 enforcement stage fee applies. Regulation 11 of the Taking Control of Goods (Fees) Regulations 2014.

Excessive levy

Paragraph 66 of the Taking Control of Goods: National Standards 2014 reads: Bailiffs should take reasonable care the value of goods levied are proportionate to the debt and the fees.

Levying on goods or a vehicle having a significantly higher value than the debt and fees being recovered. Steel Linings Limited, Mark Harvey v Bibby & Co [1993] EWCA WL 964281

Regulations are silent about defining an excessive levy, case law remains available for a definition.

Excessive levy or seizure (explained here) is wrongful at common law and a debtor may issue a claim for damages or a claim under Statute of Marlborough 1267c.15 - but remember that debtors may have a tendency to over-value their own goods, Cyril Morgan (Holdings) v Dyer [1995] 11 CL 193 and Bhatnagar & Elanrent v Whitehall Investments [1996] 5 CL 166

There is case law that has allowed bailiffs to make excessive levied when only one item is available such as a vehicle, but this cannot be used in a defence because Statute of Marlborough 1267 c.15 is a statute, and  these cannot be rebuked by a court. Only a new Act of Parliament can repeal a statute.

Bailiffs have a longstanding duty to conduct a thorough and diligent levy to ensure it is not an excessive levy, Doe d Haverson v Franks [1847] 2 C&K 678 or Mullett v Challis [1851] 16 QBD 239

Levies on the entire contents of houses, "global levies" are excessive, Leyland v Benson & Hartley [1894] 2 PMR 130 or Redmond v Ward [1910] The Times May 4 3e

Levying on goods worth 35 and selling them for 5 for a 1 debt is excessive levy, Josephs v London County Stores & Evans [1911] 78 EH 170

A levy on goods worth 175% of the debt would be treated as excessive levy, Merry v Lovell [1888] The Times November 16 3g QBD

Goods worth 602 sold for 73 resulted in damages of 350 being awarded, Webb v Pennell [1907] The Times December 5 10a

A levy on a single article (e.g. a vehicle) having a value that is more than 300% of the debt being recovered is excessive levy, Sullivan v Bishop [1826] 2 C&P 359 11 in goods were levied and valued at 6 but the debtor valued them at 100 and sued, The court awarded 50 reduced to 30 on appeal, Lowry v Read [1889] The Times March 9 5b & 33 EG 139

A slight excess (3.5% over the sum recovered) is not excessive, Fitzgerald v Longfield [1850] 7 Ir Jur 21

If a claim for excessive levy is made, there is no need for the claimant to prove malice on the part of the bailiff, Field v Mitchell [1806] 6 Esp 71

A claim for excessive distress and interference of goods cannot be awarded for both and the claimant must decide one for judgment, Clarke & Roe [1954] 4 Ir Ch R 1

Excessive distress is a wrongful act, Gawler v Chaplin [1848] 2 Exch. 593 unless no actual loss results, Watson v Murray & Co [1955] 2 QB 1

If the bailiff is uncertain of the value of a single item and wishes to avoid a claim for excessive levy then he should take a number of small inventories. Hutchins v Chambers [1758] 1 Burr 579 or Bagge v Mawby [1853] 8 Exch 64

A debtor has to show the value of the goods (or vehicle) being taken into control on the first occasion was sufficient to cover the debt and costs, Lear v Edmonds [1817] 1 B&A 157

Second levies are oppressive and excessive and should be avoided. If a second levy is made without good reason the debtor can claim damages, Lear v Caldecott [1843] 4 QB 123

Debtors having no goods of value

Enforcement agents should be aware of circumstances where no goods of sufficient value have been identified or the removal of goods would lead to severe hardship for the debtor, the enforcement agent should make the creditor aware of this situation. Paragraph 68 of the Taking Control of Goods: National Standards 2014

If the debtor's goods do not meet the debt recovered, the bailiff is excused from taking control of goods, or if the fees and expenses of the levy absorb the proceeds of sale the bailiff can make a return of nulla bona, Dennis v Whetham [1874] 9 QB 345

Taking control of goods just to pay the fees of taking control of them is wrongful, Nargett v Nias [1859] 1 E&E 439

Exempt goods

Council tax:  Regulation 5 of the Council Tax (Administration and Enforcement) (Amendment) (No. 2) Regulations 1993

High Court Writs: Paragraphs 9(2) and 9(3) of Schedule 7 of the Courts Act 2003

Anything else not otherwise prescribed in regulations: Regulation 4 of the Taking Control of Goods Regulations 2013.

Sofas without the fire safety labels cannot be re-sold commercially. Section 10 and others of the Furniture and Furnishings (Fire) (Safety) Regulations 1988 (as amended in 1989 and 1993) and are worthless. As such, these items fall into the remit of insufficient levy. Ambrose v Nottingham City Council [2004] and it is appropriate for the bailiff to abandon the levy following Dennis v Whetham [1874] 9 QB 345 and can return nulla bona.

Items such as perishable foods cash (unless in a cashbox because the identical goods have to be restored to the debtor) and loose food items, bedding and clothing are all exempt from levy, Davies v Property Reversionary Investments Co Ltd [1929] 2 KB 222

The bailiff should invite the debtor to select items to be treated as exempt, Singer Manufacturing Co v Butterfield [1902] 114 LT 39; [1905] 13 PMR 963; [1910] 129 LT 578

A levy that includes exempt goods does not invalidate the whole levy, Canadian Pacific Wine Company v Tuley [1921] 2 AC417 or Elias v Pasmore [1934] 2 KB 164 or Owen & Smith v Reo [1934] 151 LT 274

Rented goods or goods subject to a hire purchase cannot be seized, Steel Linings Ltd v Bibby & London Borough of Hammersmith and Fulham [1993] EWCA WL 964281 or paragraph 59 of the Taking Control of Goods: National Standards 2014

Articles for basic needs

Are all exempt goods see Regulation 4(1)(b) of the Taking Control of Goods Regulations 2013

Fixtures and fittings

The test of whether or not an item is a fixture is the purpose and degree of permanence of installation, Botham & others v TSB Plc [1996] EGCS 149/ 73 R&CR D1 CA.

Items for trade, work employment or education,

Legislation defines protected or exempt goods for each type of debt being enforced.

Paragraph 11(1)(b) of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 and Regulation 4 of the Taking Control of Goods Regulations 2013.

Vehicles

A vehicle used by the debtor for commuting to work is not exempt: Thompson v Bertie and another [2007] EWHC 2238 (QB) and House of Lords June 22 2010. Can be defeated because it only applied to high court writs and in any event pre-dates Regulation 4(1)(a) of the Taking Control of Goods Regulations 2013 which makes vehicles used in a person's employment exempt.

A trade vehicle ceases to be exempt from seizure if there is evidence of use by another person: Toseland Building Supplies Ltd V Bishop [1993]. Can be defeated by Paragraphs 9(2) and 9(3) of Schedule 7 of the Courts Act 2003 which does not exclude goods occasionally used by a person other than the defaulter or Regulation 4(1)(a) of the Taking Control of Goods Regulations 2013 or Paragraph 11(1)(b) of the Schedule 12 of the Tribunals, Courts and Enforcement Act 2007

Vehicles rented or on hire purchase cannot be taken into control, Paragraph 10 of the Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 or paragraph 59 of the Taking Control of Goods: National Standards 2014 or Steel Linings Ltd v Bibby & London Borough of Hammersmith and Fulham [1993] EWCA WL 964281

It is common the value of the seized vehicle may well amount to excessive levy, check also Excessive levy

Levy Abandonment

Regulation 47 of the Taking Control of Goods Regulations 2013

What makes an abandoned levy is explained here

Bannister v Hyde [1860] 2 E&E 627 If the bailiff levies on goods then leaves the premises without a signed walking-possession agreement is evidence the levy has been abandoned.

Contrast - Bannister v Hyde [1860] 2 E&E 627 - but not if the bailiffs leaves the premises briefly for example "to get a drink".

A valid levy and possession taken can be achieved without a walking-possession agreement provided levy is protected from abandonment, Lloyds & Scottish Finance v Modern Cars & Caravans (Kingston) Ltd [1968] 1 QB 764

Controlled Goods Agreements

See Regulation 14 and Regulation 15 of the Taking Control of Goods Regulations 2013

Bailiffs must be precise and "not vague" as to what goods are being seized, Wilson v Nightingale [1846] 8 QB 1034 or Skene v Midland Railway Co [1911] The Times, February 28, 3b KBD. Also Regulation 15(3) of the Taking Control of Goods Regulations 2013

A Controlled Goods Agreement is a license for the bailiff to re-enter the premises, Hill, Clerk v Ramm [1843] 5 M&G 789 or Paragraph 61 of the Taking Control of Goods: National Standards 2014

An unsigned walking-possession agreement is not valid Regulation 15(2) of the Taking Control of Goods Regulations 2013 or Evans v South Ribble Borough Council [1992] QB 757

If the debtor did not sign the walking-possession agreement the levy may be invalid Regulation 14 of the Taking Control of Goods Regulations 2013 or National Commercial Bank of Scotland Ltd v Arcam Demolition & Construction Ltd [1966] 2 QB 59

The walking-possession agreement is invalid if it was signed by a person without the debtor's permission Regulation 15(2)(b) of the Taking Control of Goods Regulations 2013 or Lumsden v Burnett [1898] 2 QB 177

A walking-possession agreement signed by a debtor's 13 year old daughter is manifestly worthless, Lloyds & Scottish Finance Ltd. v Modern Cars & Caravans (Kingston) Ltd [1966] 1 QB 764 or Regulation 14(1)(a) of the Taking Control of Goods Regulations 2013.

A walking-possession agreement is void if it was signed under duress or a misrepresentation is made or pressure exerted upon a person to coerce that person to perform an act that he ordinarily would not perform, Barclays Bank v O Brien [1994] 1 AC 180 House of Lords

A spouse cannot sign a walking-possession agreement for the other: H v Sandwell MBC [1992] Legal Action August P15. Held by Magistrates that process was irregular so far as the other spouse was concerned.

A Notice of seizure or the walking-possession Agreement must be clearly particularised, Jones v Davies [1892] 40 EG 372 or Regulation 15 of the Taking Control of Goods Regulations 2013.

A valid levy and possession taken can be achieved without a walking-possession agreement provided levy is protected from abandonment, Lloyds & Scottish Finance v Modern Cars & Caravans (Kingston) Ltd [1968] 1 QB 764

Re-attending premises containing controlled goods

Mode of entry Regulation 20 of the Taking Control of Goods Regulations 2013

Using reasonable force Regulation 28 of the Taking Control of Goods Regulations 2013 and paragraph 61 of the Taking Control of Goods: National Standards 2014

A bailiff with a valid walking-possession agreement can re-enter the property by force, Lavell v O'Leary [1933] 2 KB 200 or Watson v Murray [1955] 2 QB 1 or Paragraph 61 of the Taking Control of Goods: National Standards 2014

Re-entry may be forced but with the minimum of force and the bailiff should avoid acting in a matter that may constitute a breach of the peace, R. v Lockwood [1856] The Times April 23 10f QBD.

Bailiffs can break into homes provided they have a valid levy over the goods contained inside and has previously entered the same property peacefully - McLeod v Butterwick [1996] 3 All ER 236, [1996] 1 WLR 995. Bailiffs cite this judgment in their defences after breaking into homes. Easily defeated in court if the bailiff has an invalid levy or there is a procedural impropriety with the original debt.

The debtor previously allowed the bailiff into your home to make that levy in respect of the same debt: Brintons Ltd v Wyre Forest District Council [1977] QB 178.

If a debtor deliberately avoids the bailiff having a valid levy, the bailiff may only force re-entry by appointment with an order signed by a judge. Khazanchi & Anor v Faircharm Investments Ltd & Ors [1998].

In order to effect forced re-entry in light of the above High Court Case, the bailiff must give prior notice under Regulation 25 of the Taking Control of goods Regulations 2013 that he will be re-attending on a specific day and time frame to remove previously seized goods. Should the debtor choose to ignore the notice and go out or refuse entry to the bailiff, the above case supports the right of the bailiff to force entry for the purpose of removing previously seized goods.

Removal of goods and vehicles

A trade vehicle ceases to be exempt from seizure if there is evidence of use by a third party: Toseland Building Supplies Ltd V Bishop [1993]. Defeated by Regulation 4(1)(a) of the Taking Control of Goods Regulations 2013

Once An Inventory Is Made On Controlled Goods Agreement, the bailiff cannot add to it later. If such items are taken the debtor can sue for damages, Regulation 15 of the Taking Control of Goods Regulations 2013

Bailiffs cannot retrospectively levy vehicles after seizing them: Evans v South Ribble Borough Council [1992] QB 757

A person removing an illegal wheel clamp is not guilty of criminal damage, R. v Ali Bromley Magistrates Court [2011] unreported April 18 2011, and a person who pushes a illegal clamper away from the clamp while it is being removed is not guilty of assault.

There must be a delay between seizure and removal, especially vehicles, Culligan v Simkin & Marston Group Ltd [2008]. Regulation 9 of the Taking Control of Goods Regulations 2013 prescribes a maximum of 12 months (if issued before 06 April 2013) and Regulation 6 prescribes a minimum of 7 clear days.

Removing goods in your absence unless it is by appointment or a judge has given permission, is unlawful - paragraph 36 of the Judge's summing up in the case ofKhazanchi & another v Faircharm Investments Ltd & another [1998]

Removing goods not taken into control (not listed on a Controlled Goods Agreement) is wrongful, Bishop v Bryant & Others [1834] 6 C&P 484 or Sims v Tuffs [1834] 6 C&P 207.

See also the Theft Act 1968 and the debtor can take court action to claim damages, Davies v Property & Reversionary Investments Co Ltd [1929] 2 KB 222

The creditor is liable to the owner of the goods (including vehicles) if they are damaged while in possession of the bailiff, Paragraph 7 of the Taking Control of Goods: National Standards 2014

Paying the liability direct with the creditor (or challenge it) using whatever steps needed only avoids bailiffs fees that have not been incurred up to the point the debt is paid.

When you have paid the creditor before the enforcement agent started any enforcement stage you must notify the bailiff in writing under paragraph 59(2) of the Act. It revokes any further fees liabilities thereforward. Here is a template.

Removing and sale of goods and vehicles

Bailiffs must only take goods in accordance with the appropriate regulations or statute. Paragraph 62 of the Taking Control of Goods: National Standards 2014

Goods cannot be removed more than 12 months from the date of the Controlled Goods Agreement. Regulation 9(1) of the Taking Control of Goods Regulations 2013.

Goods cannot be removed less than two days clear after the debtor has defaulted on the agreement. Regulation 25(1) of the Taking Control of Goods Regulations 2013.

Vehicles, a minimum of two hours must elapse before it can be removed. Regulation 18(5) of the Taking Control of Goods Regulations 2013 and as written notice to the debtor (that is not necessarily the owner or keeper) must be given, regulation 18(4).

Bailiff's Fees

Prescribed in the Schedule of the Taking Control of Goods (Fees) Regulations 2014.

A bailiff commits fraud under Sections 1 to 5 of the Fraud Act 2006 if he charges for work he has not done, HM Government in the House of Lords April 20 April 2007 and the police cannot treat such complaints as a civil matter.

Charges that go beyond the standardised fee schedules should require the Court's sanction to be certain the fees are lawful, Bernard Loynes v Beswicks Solicitors [2010] Queens Bench Division.

Bailiffs cannot charge a VAN fee, "ATR" fee or "porterage" without a levy on goods. Paragraph 62 of Complaint numbers 95A01890 and 95A04826 against London Borough of Ealing the Local Government Ombudsman decided the bailiff is not entitled to charge a van fee when no goods have been levied.

Van fees must be the actual cost of using the van. Flanagan v John Crilley & Sons [1987] Birmingham County Court, unreported, Adviser Magazine No. 7 p29

Fees for doormat levies are not allowed, charging a fee to levy on goods of insignificant value e.g. a doormat, page 6 of 11 of the Local Government Ombudsman report on 29 November 2012 or Regulation 15 of the Taking Control of Goods Regulations 2013.

Bailiffs cannot charge a fee for using a wheel clamp: Culligan v Simkin & Marston Group Ltd [2008] because there are no costs or disbursements involved in using a wheel clamp already in the bailiffs possession. The Schedule of the Taking Control of Goods (Fees) Regulations 2014

Bailiffs cannot charge multiple fees for multiple debts at the same address on the same vehicle or goods. Paragraph 69 of the Taking Control of Goods: National Standards 2014 and regulation 11 of the Taking Control of Goods (Fees) Regulations 2014

The Local Government Ombudsman decided in a report into complaint no 11 007 684 against Blaby District Council that multiple levies is Maladministration, paragraphs 43 & 46 multiple fee-charging is wholly unreasonable.

The bailiff can only charge one fee regardless of the number of warrants involved at the same location: Glasbrook v David & Vaux [1905] 1 KB 615 or Throssell vs. Leeds City Council [1993] but can make separate charges for levies at different locations, Wells ex parte The Sheriff of Kent [1893] 68 LT 231

Paying the liability direct with the creditor (or challenge it) only avoids bailiffs fees that have not been incurred up to the point the debt is paid. Regulation 4(3) of the Taking Control of Goods (Fees) Regulations 2014

Levying on somebody else's goods or on the wrong vehicle: The fees must be refunded, page 6 and 7 of 11 of the Local Government Ombudsman report on 29 November 2012

A High Court Enforcement Officer is not entitled to claim "Rule 12" costs and disbursements for gain, the House of Lords 03 November 2009

A business (HCEO firm) can reduce costs by standardising its charges provided it is not in an unreasonable way, Bernard Loynes v Beswicks Solicitors [2010] Queens Bench Division

When the debtor pays the sum then no further enforcement steps can be taken:Paragraph 58 of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007

When enforcement action has ceased, the bailiff cannot enforce the recovery of fees. Guideline 31 of the Taking Control of Goods: National Standards 2014

The bailiffs choice of remedy or court is not the exclusive remedy: Steel Linings Limited, Mark Harvey v Bibby & Co [1993] EWCA WL 964281. This entitlement is a statutory right provided under Section 15 of the County Courts Act 1984.

A debtor can opt to recover the bailiffs fees paid under protest in a civil court claim, Veale v Atwood [1833] The Times February 2, 5g, CP or section 15 of the County Courts Act 1984.

Magistrates Court fines. There is no direct contractual relationship on defaulters and the enforcement company, and the company bears the risk of running the service if he is unable to recover the fine. Elias, LJ presiding in JBW Ltd v Ministry of Justice [2012] EWCA Civ 8.

Unlawful bailiffs fees are recoverable, regulation 3 of the Taking Control of Goods (Fees) Regulations 2014 or Day v Davies [1938] 2 KB 74

The council, and not the bailiff, is liable for refunding unlawful bailiffs fees, Paragraph 24 of complaint number 12 005 084 by the Local Government Ombudsman 13 March 2013, and paragraph 44 confirms you can you can also make a formal complaint and claim damages, disbursements and compensation if the council is malfeasant. Ditto Paragraph 7 of the Taking Control of Goods: National Standards 2014

Bailiffs and liabilities

Regulation 34 of the Taking Control of Goods Regulations 2013. Bailiffs are liable for damage to goods and vehicles while in their possession.

Also applies to vehicles. Regulation 18(7) of the Taking Control of Goods Regulations 2013

Paragraph 7 of the Taking Control of Goods: National Standards 2014 the creditor is ultimately responsible for the enforcement agents acting on their behalf.

The bailiff is liable for any unlawful damage caused to property even if it was an accident: see this judgment or Regulation 34 of the Taking Control of Goods Regulations 2013 and Paragraph 35 of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 and Paragraph 63 of the Taking Control of Goods: National Standards 2014.

The bailiff is liable if he damages your business reputation: Skidmore v Booth [1834] 6 C&P 777

Damages are not limited to the immediate pecuniary losses occasioned by the distress (the action of taking control of goods) but extend to damages for annoyance and injury to credit and reputation in trade, Smith v Enright [1894] 69 LT 724

Bailiffs have a duty to protect the creditor AND the debtor as well as having a duty to protect the poor from abuse and should normally err on the side of caution and generous treatment of debtors, Taylor v Ashworth [1910] 129 LT 578 or Harrison v Mearing [1843] The Times May 10 8b Exch or Paragraphs 19 to 31 of the Taking Control of Goods: National Standards 2014

Bailiffs and the police

If a police officer a arrests a debtor to benefit an enforcement agent acting unlawfully, the officer commits an offence under section 26(4) of the Criminal Justice and Courts Act 2015.

If a police officer fails to arrest an enforcement agent committing an offence, the officer commits an offence under section 26(5) of the Criminal Justice and Courts Act 2015.

There must be very good reasons for arresting a debtor on the grounds of preventing a breach of the peace, only a serious and imminent threat justifies arrest, Foulkes v Chief Constable of Merseyside Police [1998] 3 All ER 705

A debtor can lawfully use reasonable force in removing a bailiff that has refused to leave, the bailiff resisting is the person guilty of a breach of the peace, Green v Bartram [1830] 4 C&P 308 and if police are present, the bailiff is the person that police should arrest, Foulkes v Chief Constable of Merseyside Police [1998] 3 All ER 705

By common law police officers owe to the general public a duty to enforce the criminal law, 1968 CA Lord Denning re: Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 QB 118

A bailiff may not encourage a third party to allow the bailiff access to a property (i.e. Workmen inside a house or a police officer), access by this means renders everything that follows invalid, Nash v Lucas [1867] 2 QB 590

If a police officer is in attendance and assists the bailiff to gain entry or persuades the debtor to open the door then any levy the bailiff makes is void and the debtor can sue for damages. Skidmore v Booth [1834] 6 C&P 777

If a police officer arrests a debtor after throwing a bailiff off the premises who had refused a request to leave, the officer is guilty of false arrest because no offence was committed and the bailiff was there illegally: Green v Bartram [1830] 4 C&P 308.

A police officer must arrest a bailiff for breach of the peace if he places the debtor in fear of violence or harm if that offence is made in the presence of that officer, R v Howell (Errol) [1982] 1 QB 427.

A police officer must apprehend and arrest the party that is threatening violence, Redmond-Bate v Department of Public Prosecutions, The Times July 28 1999, Lord Justice Sedley

If a bailiff causes a disturbance but does not make a threat, it is unreasonable for the police to arrest him. Bibby v Constable of Essex [2000] Court of Appeal April 2000

Other useful citations and laws

The Taking Control of Goods Regulations 2013

Schedule 12 of the Tribunals, Courts and Enforcement Act 2007

Table 1 & 2 of the Schedule of the Taking Control of Goods (Fees) Regulations 2014

The Schedule of the Tribunals, Courts and Enforcement Act 2007 (Consequential, Transitional and Saving Provision) Order 2014

The Taking Control of Goods: National Standards 2014

When a government department publishes "guidelines" on how it should operate, then those guidelines must be followed unless contrary legislation is provided. Demonstrated in paragraph 29 and onwards in the judicial review R v South Western Magistrates' Court [2013] EWHC 64 (admin)

The courts must never appear to approve of an unlawful action against a debtor no matter how unsympathetic his record, R v Purdy [1974] 1 QB 288, 1 QB 292F

See also: List of offences committed by bailiffs and HCEOs

Bankruptcy & insolvency

Note: Individuals and businesses subject to Individual Voluntary Arrangements (IVA's)'s Debt Relief Orders (DRO's) and county court administration orders are substantially protected from recovery action and persons facing enforcement action must notify their practitioner or trustee. Property of a bankrupt's estate vested in a trustee can still be seized especially for the recovery of a statutory debt.

All enforcement agents are required to make enquiries about possible insolvency, Balme v Hutton [1833] 9 Bing 471

Multiple debts

Where enforcement agents have multiple warrants for a single debtor, an enforcement agent must take control of goods, and sell or dispose of these goods, on the same occasion except where it is not practical to do so. Paragraph 7 of the Taking Control of Goods: National Standards 2014

The Local Government Ombudsman decided in a report into complaint no 11 007 684 against Blaby District Council that multiple levies amounts to maladministration, paragraphs 43 & 46 multiple fee-charging is wholly unreasonable.

A fee of £75 compliance stage applies to each debt, but only one £235 enforcement stage fee applies. Regulation 11 of the Taking Control of Goods (Fees) Regulations 2014.

Excessive levy

Paragraph 66 of the Taking Control of Goods: National Standards 2014 reads: Bailiffs should take reasonable care the value of goods levied are proportionate to the debt and the fees.

Levying on goods or a vehicle having a significantly higher value than the debt and fees being recovered. Steel Linings Limited, Mark Harvey v Bibby & Co [1993] EWCA WL 964281

Regulations are silent about defining an excessive levy, case law remains available for a definition.

Excessive levy or seizure (explained here) is wrongful at common law and a debtor may issue a claim for damages or a claim under Statute of Marlborough 1267c.15 - but remember that debtors may have a tendency to over-value their own goods, Cyril Morgan (Holdings) v Dyer [1995] 11 CL 193 and Bhatnagar & Elanrent v Whitehall Investments [1996] 5 CL 166

There is case law that has allowed bailiffs to make excessive levied when only one item is available such as a vehicle, but this cannot be used in a defence because Statute of Marlborough 1267 c.15 is a statute, and  these cannot be rebuked by a court. Only a new Act of Parliament can repeal a statute.

Bailiffs have a longstanding duty to conduct a thorough and diligent levy to ensure it is not an excessive levy, Doe d Haverson v Franks [1847] 2 C&K 678 or Mullett v Challis [1851] 16 QBD 239

Levies on the entire contents of houses, "global levies" are excessive, Leyland v Benson & Hartley [1894] 2 PMR 130 or Redmond v Ward [1910] The Times May 4 3e

Levying on goods worth 35 and selling them for 5 for a 1 debt is excessive levy, Josephs v London County Stores & Evans [1911] 78 EH 170

A levy on goods worth 175% of the debt would be treated as excessive levy, Merry v Lovell [1888] The Times November 16 3g QBD

Goods worth 602 sold for 73 resulted in damages of 350 being awarded, Webb v Pennell [1907] The Times December 5 10a

A levy on a single article (e.g. a vehicle) having a value that is more than 300% of the debt being recovered is excessive levy, Sullivan v Bishop [1826] 2 C&P 359 11 in goods were levied and valued at 6 but the debtor valued them at 100 and sued, The court awarded 50 reduced to 30 on appeal, Lowry v Read [1889] The Times March 9 5b & 33 EG 139

A slight excess (3.5% over the sum recovered) is not excessive, Fitzgerald v Longfield [1850] 7 Ir Jur 21

If a claim for excessive levy is made, there is no need for the claimant to prove malice on the part of the bailiff, Field v Mitchell [1806] 6 Esp 71

A claim for excessive distress and interference of goods cannot be awarded for both and the claimant must decide one for judgment, Clarke & Roe [1954] 4 Ir Ch R 1

Excessive distress is a wrongful act, Gawler v Chaplin [1848] 2 Exch. 593 unless no actual loss results, Watson v Murray & Co [1955] 2 QB 1

If the bailiff is uncertain of the value of a single item and wishes to avoid a claim for excessive levy then he should take a number of small inventories. Hutchins v Chambers [1758] 1 Burr 579 or Bagge v Mawby [1853] 8 Exch 64

A debtor has to show the value of the goods (or vehicle) being taken into control on the first occasion was sufficient to cover the debt and costs, Lear v Edmonds [1817] 1 B&A 157

Second levies are oppressive and excessive and should be avoided. If a second levy is made without good reason the debtor can claim damages, Lear v Caldecott [1843] 4 QB 123

Debtors having no goods of value

Enforcement agents should be aware of circumstances where no goods of sufficient value have been identified or the removal of goods would lead to severe hardship for the debtor, the enforcement agent should make the creditor aware of this situation. Paragraph 68 of the Taking Control of Goods: National Standards 2014

If the debtor's goods do not meet the debt recovered, the bailiff is excused from taking control of goods, or if the fees and expenses of the levy absorb the proceeds of sale the bailiff can make a return of nulla bona, Dennis v Whetham [1874] 9 QB 345

Taking control of goods just to pay the fees of taking control of them is wrongful, Nargett v Nias [1859] 1 E&E 439

Exempt goods

Council tax:  Regulation 5 of the Council Tax (Administration and Enforcement) (Amendment) (No. 2) Regulations 1993

High Court Writs: Paragraphs 9(2) and 9(3) of Schedule 7 of the Courts Act 2003

Anything else not otherwise prescribed in regulations: Regulation 4 of the Taking Control of Goods Regulations 2013.

Sofas without the fire safety labels are exempt from seizure because they cannot be re-sold commercially. Section 10 and others of the Furniture and Furnishings (Fire) (Safety) Regulations 1988 (as amended in 1989 and 1993) and are worthless. As such, these items fall into the remit of insufficient levy. Ambrose v Nottingham City Council [2004] and it is appropriate for the bailiff to abandon the levy following Dennis v Whetham [1874] 9 QB 345 and can return nulla bona.

Items such as perishable foods cash (unless in a cashbox because the identical goods have to be restored to the debtor) and loose food items, bedding and clothing are all exempt from levy, Davies v Property Reversionary Investments Co Ltd [1929] 2 KB 222

The bailiff should invite the debtor to select items to be treated as exempt, Singer Manufacturing Co v Butterfield [1902] 114 LT 39; [1905] 13 PMR 963; [1910] 129 LT 578

A levy that includes exempt goods does not invalidate the whole levy, Canadian Pacific Wine Company v Tuley [1921] 2 AC417 or Elias v Pasmore [1934] 2 KB 164 or Owen & Smith v Reo [1934] 151 LT 274

Rented goods or goods subject to a hire purchase cannot be seized, Steel Linings Ltd v Bibby & London Borough of Hammersmith and Fulham [1993] EWCA WL 964281 or paragraph 59 of the Taking Control of Goods: National Standards 2014

Articles for basic needs

Are all exempt goods see Regulation 4(1)(b) of the Taking Control of Goods Regulations 2013

Fixtures and fittings

The test of whether or not an item is a fixture is the purpose and degree of permanence of installation, Botham & others v TSB Plc [1996] EGCS 149/ 73 R&CR D1 CA.

Items for trade, work employment or education,

Legislation defines protected or exempt goods for each type of debt being enforced.

Paragraph 11(1)(b) of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 and Regulation 4 of the Taking Control of Goods Regulations 2013.

Vehicles

A vehicle used by the debtor for commuting to work is not exempt: Thompson v Bertie and another [2007] EWHC 2238 (QB) and House of Lords June 22 2010. Can be defeated because it only applied to high court writs and in any event pre-dates Regulation 4(1)(a) of the Taking Control of Goods Regulations 2013 which makes vehicles used in a person's employment exempt.

A trade vehicle ceases to be exempt from seizure if there is evidence of use by another person: Toseland Building Supplies Ltd V Bishop [1993]. Can be defeated by Paragraphs 9(2) and 9(3) of Schedule 7 of the Courts Act 2003 which does not exclude goods occasionally used by a person other than the defaulter or Regulation 4(1)(a) of the Taking Control of Goods Regulations 2013 or Paragraph 11(1)(b) of the Schedule 12 of the Tribunals, Courts and Enforcement Act 2007

Vehicles rented or on hire purchase cannot be taken into control, Paragraph 10 of the Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 or paragraph 59 of the Taking Control of Goods: National Standards 2014 or Steel Linings Ltd v Bibby & London Borough of Hammersmith and Fulham [1993] EWCA WL 964281

It is common the value of the seized vehicle may well amount to excessive levy, check also Excessive levy

Levy Abandonment

Regulation 47 of the Taking Control of Goods Regulations 2013

What makes an abandoned levy is explained here

Bannister v Hyde [1860] 2 E&E 627 If the bailiff levies on goods then leaves the premises without a signed walking-possession agreement is evidence the levy has been abandoned.

Contrast - Bannister v Hyde [1860] 2 E&E 627 - but not if the bailiffs leaves the premises briefly for example "to get a drink".

A valid levy and possession taken can be achieved without a walking-possession agreement provided levy is protected from abandonment, Lloyds & Scottish Finance v Modern Cars & Caravans (Kingston) Ltd [1968] 1 QB 764

Controlled Goods Agreements

See Regulation 14 and Regulation 15 of the Taking Control of Goods Regulations 2013

Bailiffs must be precise and "not vague" as to what goods are being seized, Wilson v Nightingale [1846] 8 QB 1034 or Skene v Midland Railway Co [1911] The Times, February 28, 3b KBD. Also Regulation 15(3) of the Taking Control of Goods Regulations 2013

A Controlled Goods Agreement is a license for the bailiff to re-enter the premises, Hill, Clerk v Ramm [1843] 5 M&G 789 or Paragraph 61 of the Taking Control of Goods: National Standards 2014

An unsigned walking-possession agreement is not valid Regulation 15(2) of the Taking Control of Goods Regulations 2013 or Evans v South Ribble Borough Council [1992] QB 757

If the debtor did not sign the walking-possession agreement the levy may be invalid Regulation 14 of the Taking Control of Goods Regulations 2013 or National Commercial Bank of Scotland Ltd v Arcam Demolition & Construction Ltd [1966] 2 QB 59

The walking-possession agreement is invalid if it was signed by a person without the debtor's permission Regulation 15(2)(b) of the Taking Control of Goods Regulations 2013 or Lumsden v Burnett [1898] 2 QB 177

A walking-possession agreement signed by a debtor's 13 year old daughter is manifestly worthless, Lloyds & Scottish Finance Ltd. v Modern Cars & Caravans (Kingston) Ltd [1966] 1 QB 764 or Regulation 14(1)(a) of the Taking Control of Goods Regulations 2013.

A walking-possession agreement is void if it was signed under duress or a misrepresentation is made or pressure exerted upon a person to coerce that person to perform an act that he ordinarily would not perform, Barclays Bank v O Brien [1994] 1 AC 180 House of Lords

A spouse cannot sign a walking-possession agreement for the other: H v Sandwell MBC [1992] Legal Action August P15. Held by Magistrates that process was irregular so far as the other spouse was concerned.

A Notice of seizure or the walking-possession Agreement must be clearly particularised, Jones v Davies [1892] 40 EG 372 or Regulation 15 of the Taking Control of Goods Regulations 2013.

A valid levy and possession taken can be achieved without a walking-possession agreement provided levy is protected from abandonment, Lloyds & Scottish Finance v Modern Cars & Caravans (Kingston) Ltd [1968] 1 QB 764

Re-attending premises containing controlled goods

Mode of entry Regulation 20 of the Taking Control of Goods Regulations 2013

Using reasonable force Regulation 28 of the Taking Control of Goods Regulations 2013 and paragraph 61 of the Taking Control of Goods: National Standards 2014

A bailiff with a valid walking-possession agreement can re-enter the property by force, Lavell v O'Leary [1933] 2 KB 200 or Watson v Murray [1955] 2 QB 1 or Paragraph 61 of the Taking Control of Goods: National Standards 2014

Re-entry may be forced but with the minimum of force and the bailiff should avoid acting in a matter that may constitute a breach of the peace, R. v Lockwood [1856] The Times April 23 10f QBD.

Bailiffs can break into homes provided they have a valid levy over the goods contained inside and has previously entered the same property peacefully - McLeod v Butterwick [1996] 3 All ER 236, [1996] 1 WLR 995. Bailiffs cite this judgment in their defences after breaking into homes. Easily defeated in court if the bailiff has an invalid levy or there is a procedural impropriety with the original debt.

The debtor previously allowed the bailiff into your home to make that levy in respect of the same debt: Brintons Ltd v Wyre Forest District Council [1977] QB 178.

If a debtor deliberately avoids the bailiff having a valid levy, the bailiff may only force re-entry by appointment with an order signed by a judge. Khazanchi & Anor v Faircharm Investments Ltd & Ors [1998].

In order to effect forced re-entry in light of the above High Court Case, the bailiff must give prior notice under Regulation 25 of the Taking Control of goods Regulations 2013 that he will be re-attending on a specific day and time frame to remove previously seized goods. Should the debtor choose to ignore the notice and go out or refuse entry to the bailiff, the above case supports the right of the bailiff to force entry for the purpose of removing previously seized goods.

Removal of goods and vehicles

A trade vehicle ceases to be exempt from seizure if there is evidence of use by a third party: Toseland Building Supplies Ltd V Bishop [1993]. Defeated by Regulation 4(1)(a) of the Taking Control of Goods Regulations 2013

Once An Inventory Is Made On Controlled Goods Agreement, the bailiff cannot add to it later. If such items are taken the debtor can sue for damages, Regulation 15 of the Taking Control of Goods Regulations 2013

Bailiffs cannot retrospectively levy vehicles after seizing them: Evans v South Ribble Borough Council [1992] QB 757

A person removing an illegal wheel clamp is not guilty of criminal damage, R. v Ali Bromley Magistrates Court [2011] unreported April 18 2011, and a person who pushes a illegal clamper away from the clamp while it is being removed is not guilty of assault.

There must be a delay between seizure and removal, especially vehicles, Culligan v Simkin & Marston Group Ltd [2008]. Regulation 9 of the Taking Control of Goods Regulations 2013 prescribes a maximum of 12 months (if issued before 06 April 2013) and Regulation 6 prescribes a minimum of 7 clear days.

Removing goods in your absence unless it is by appointment or a judge has given permission, is unlawful - paragraph 36 of the Judge's summing up in the case ofKhazanchi & another v Faircharm Investments Ltd & another [1998]

Removing goods not taken into control (not listed on a Controlled Goods Agreement) is wrongful, Bishop v Bryant & Others [1834] 6 C&P 484 or Sims v Tuffs [1834] 6 C&P 207.

See also the Theft Act 1968 and the debtor can take court action to claim damages, Davies v Property & Reversionary Investments Co Ltd [1929] 2 KB 222

The creditor is liable to the owner of the goods (including vehicles) if they are damaged while in possession of the bailiff, Paragraph 7 of the Taking Control of Goods: National Standards 2014

Paying the liability direct with the creditor (or challenge it) using whatever steps needed only avoids bailiffs fees that have not been incurred up to the point the debt is paid.

When you have paid the creditor before the enforcement agent started any enforcement stage you must notify the bailiff in writing under paragraph 59(2) of the Act. It revokes any further fees liabilities thereforward. Here is a template.

Removing and sale of goods and vehicles

Bailiffs must only take goods in accordance with the appropriate regulations or statute. Paragraph 62 of the Taking Control of Goods: National Standards 2014

Goods cannot be removed more than 12 months from the date of the Controlled Goods Agreement. Regulation 9(1) of the Taking Control of Goods Regulations 2013.

Goods cannot be removed less than two days clear after the debtor has defaulted on the agreement. Regulation 25(1) of the Taking Control of Goods Regulations 2013.

Vehicles, a minimum of two hours must elapse before it can be removed. Regulation 18(5) of the Taking Control of Goods Regulations 2013 and as written notice to the debtor (that is not necessarily the owner or keeper) must be given, regulation 18(4).

Bailiff's Fees

Prescribed in the Schedule of the Taking Control of Goods (Fees) Regulations 2014.

A bailiff commits fraud under Sections 1 to 5 of the Fraud Act 2006 if he charges for work he has not done, HM Government in the House of Lords April 20 April 2007 and the police cannot treat such complaints as a civil matter.

Charges that go beyond the standardised fee schedules should require the Court's sanction to be certain the fees are lawful, Bernard Loynes v Beswicks Solicitors [2010] Queens Bench Division.

Bailiffs cannot charge a VAN fee, "ATR" fee or "porterage" without a levy on goods. Paragraph 62 of Complaint numbers 95A01890 and 95A04826 against London Borough of Ealing the Local Government Ombudsman decided the bailiff is not entitled to charge a van fee when no goods have been levied.

Van fees must be the actual cost of using the van. Flanagan v John Crilley & Sons [1987] Birmingham County Court, unreported, Adviser Magazine No. 7 p29

Fees for doormat levies are not allowed, charging a fee to levy on goods of insignificant value e.g. a doormat, page 6 of 11 of the Local Government Ombudsman report on 29 November 2012 or Regulation 15 of the Taking Control of Goods Regulations 2013.

Bailiffs cannot charge a fee for using a wheel clamp: Culligan v Simkin & Marston Group Ltd [2008] because there are no costs or disbursements involved in using a wheel clamp already in the bailiffs possession. The Schedule of the Taking Control of Goods (Fees) Regulations 2014

Bailiffs cannot charge multiple fees for multiple debts at the same address on the same vehicle or goods. Paragraph 69 of the Taking Control of Goods: National Standards 2014 and regulation 11 of the Taking Control of Goods (Fees) Regulations 2014

The Local Government Ombudsman decided in a report into complaint no 11 007 684 against Blaby District Council that multiple levies is Maladministration, paragraphs 43 & 46 multiple fee-charging is wholly unreasonable.

The bailiff can only charge one fee regardless of the number of warrants involved at the same location: Glasbrook v David & Vaux [1905] 1 KB 615 or Throssell vs. Leeds City Council [1993] but can make separate charges for levies at different locations, Wells ex parte The Sheriff of Kent [1893] 68 LT 231

Paying the liability direct with the creditor (or challenge it) only avoids bailiffs fees that have not been incurred up to the point the debt is paid. Regulation 4(3) of the Taking Control of Goods (Fees) Regulations 2014

Levying on somebody else's goods or on the wrong vehicle: The fees must be refunded, page 6 and 7 of 11 of the Local Government Ombudsman report on 29 November 2012

A High Court Enforcement Officer is not entitled to claim "Rule 12" costs and disbursements for gain, the House of Lords 03 November 2009

A business (HCEO firm) can reduce costs by standardising its charges provided it is not in an unreasonable way, Bernard Loynes v Beswicks Solicitors [2010] Queens Bench Division

When the debtor pays the sum then no further enforcement steps can be taken:Paragraph 58 of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007

When enforcement action has ceased, the bailiff cannot enforce the recovery of fees. Guideline 31 of the Taking Control of Goods: National Standards 2014

The bailiffs choice of remedy or court is not the exclusive remedy: Steel Linings Limited, Mark Harvey v Bibby & Co [1993] EWCA WL 964281. This entitlement is a statutory right provided under Section 15 of the County Courts Act 1984.

A debtor can opt to recover the bailiffs fees paid under protest in a civil court claim, Veale v Atwood [1833] The Times February 2, 5g, CP or section 15 of the County Courts Act 1984.

Magistrates Court fines. There is no direct contractual relationship on defaulters and the enforcement company, and the company bears the risk of running the service if he is unable to recover the fine. Elias, LJ presiding in JBW Ltd v Ministry of Justice [2012] EWCA Civ 8.

Unlawful bailiffs fees are recoverable, regulation 3 of the Taking Control of Goods (Fees) Regulations 2014 or Day v Davies [1938] 2 KB 74

The council, and not the bailiff, is liable for refunding unlawful bailiffs fees, Paragraph 24 of complaint number 12 005 084 by the Local Government Ombudsman 13 March 2013, and paragraph 44 confirms you can you can also make a formal complaint and claim damages, disbursements and compensation if the council is malfeasant. Ditto Paragraph 7 of the Taking Control of Goods: National Standards 2014

Bailiffs and liabilities

Regulation 34 of the Taking Control of Goods Regulations 2013. Bailiffs are liable for damage to goods and vehicles while in their possession.

Also applies to vehicles. Regulation 18(7) of the Taking Control of Goods Regulations 2013

Paragraph 7 of the Taking Control of Goods: National Standards 2014 the creditor is ultimately responsible for the enforcement agents acting on their behalf.

The bailiff is liable for any unlawful damage caused to property even if it was an accident: see this judgment or Regulation 34 of the Taking Control of Goods Regulations 2013 and Paragraph 35 of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 and Paragraph 63 of the Taking Control of Goods: National Standards 2014.

The bailiff is liable if he damages your business reputation: Skidmore v Booth [1834] 6 C&P 777

Damages are not limited to the immediate pecuniary losses occasioned by the distress (the action of taking control of goods) but extend to damages for annoyance and injury to credit and reputation in trade, Smith v Enright [1894] 69 LT 724

Bailiffs have a duty to protect the creditor AND the debtor as well as having a duty to protect the poor from abuse and should normally err on the side of caution and generous treatment of debtors, Taylor v Ashworth [1910] 129 LT 578 or Harrison v Mearing [1843] The Times May 10 8b Exch or Paragraphs 19 to 31 of the Taking Control of Goods: National Standards 2014

Bailiffs and the police

If a police officer a arrests a debtor to benefit an enforcement agent acting unlawfully, the officer commits an offence under section 26(4) of the Criminal Justice and Courts Act 2015.

If a police officer fails to arrest an enforcement agent committing an offence, the officer commits an offence under section 26(5) of the Criminal Justice and Courts Act 2015.

There must be very good reasons for arresting a debtor on the grounds of preventing a breach of the peace, only a serious and imminent threat justifies arrest, Foulkes v Chief Constable of Merseyside Police [1998] 3 All ER 705

A debtor can lawfully use reasonable force in removing a bailiff that has refused to leave, the bailiff resisting is the person guilty of a breach of the peace, Green v Bartram [1830] 4 C&P 308 and if police are present, the bailiff is the person that police should arrest, Foulkes v Chief Constable of Merseyside Police [1998] 3 All ER 705

By common law police officers owe to the general public a duty to enforce the criminal law, 1968 CA Lord Denning re: Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 QB 118

A bailiff may not encourage a third party to allow the bailiff access to a property (i.e. Workmen inside a house or a police officer), access by this means renders everything that follows invalid, Nash v Lucas [1867] 2 QB 590

If a police officer is in attendance and assists the bailiff to gain entry or persuades the debtor to open the door then any levy the bailiff makes is void and the debtor can sue for damages. Skidmore v Booth [1834] 6 C&P 777

If a police officer arrests a debtor after throwing a bailiff off the premises who had refused a request to leave, the officer is guilty of false arrest because no offence was committed and the bailiff was there illegally: Green v Bartram [1830] 4 C&P 308.

A police officer must arrest a bailiff for breach of the peace if he places the debtor in fear of violence or harm if that offence is made in the presence of that officer, R v Howell (Errol) [1982] 1 QB 427.

A police officer must apprehend and arrest the party that is threatening violence, Redmond-Bate v Department of Public Prosecutions, The Times July 28 1999, Lord Justice Sedley

If a bailiff causes a disturbance but does not make a threat, it is unreasonable for the police to arrest him. Bibby v Constable of Essex [2000] Court of Appeal April 2000

When a government department publishes "guidelines" on how it should operate, then those guidelines must be followed unless contrary legislation is provided. Demonstrated in paragraph 29 and onwards in the judicial review R v South Western Magistrates' Court [2013] EWHC 64 (admin)

The courts must never appear to approve of an unlawful action against a debtor no matter how unsympathetic his record, R v Purdy [1974] 1 QB 288, 1 QB 292F