Monday, 5 March 2012

It's my own invention!

As the White Knight said to Alice in Alice through the looking glass- "It's my own invention."  Lord Justice Elias might have said the same during his judgment in JBW Group Ltd v Ministry of Justice [2012].  Describing distraint for fines he said:

“a bailiff may levy financial distress, which involves securing payment without confiscation of goods; or he may levy confiscation distress, which involves confiscating and selling goods.”

This terminology has never been seen before in the history of bailiff law, but this does not seem to have dissuaded the learned judge from using it.  As I argue in the latest issue of Bailiff Studies Bulletin (no.12), this sort of attitude can only add confusion to the present state of bailiff law- which, as we know is already extremely complex and confusing. 

What Elias LJ did seems to indicate a complete lack of respect for bailiff law as it is presently understood.  Either you can dream up whatever terminology you like because bailiff law is so unstructured and informal that you can say whatever you feel like- or bailiffing a subject so lacking in interest or importance that he couldn't be bothered to do the background study.

This problem of making up terminology is by no means limited to the Court of Appeal.  Here's a quick sample:

  • the Beatson report in 2000 called all forms of seizure of goods "distress" even when talking about executions upon court judgments (though maybe we can forgive his shorthand as it saved place and time....);
  • the White Paper 'Effective enforcement ' in 2003 insisted on talking purely in terms of enforcing court judgments.  This is typical of MoJ/DCA/LCD; they staff come from a court background and are so used to thinking purely about judgment debts that they cannot break the habit- even when it is plainly inappropriate;
  • Parliamentary draftsmen- the most egregious example that springs to mind is the wording in the council tax regulations dealing with so-called "redemption fees."  There is considerable doubt and confusion about when these can be charged.  A large part of the blame can be put down to the sloppy wording of the regulation, which talks about 'seizure' of goods when 'removal' is clearly intended.  The explanation seems clear- most individuals discussing bailiff procedure will naturally talk about physical contact with goods as 'seizure'; there is a technical meaning to the term, of which practitioners are aware.  This does not seem to have been used in the regulations (although you would have expected the writer to be a little more au fait with the 'terms of art') and the result has been two decades of misunderstanding and argument.
This is just a few instances to show how little respect bailiff law is afforded.  It seems to be fair game: 'say what you feel like' it really doesn't matter; they're all thugs doing what they like anyway.

We at Bailiff Blogger say NO!  There is a long and honourable history to enforcement law worthy of extended study.  Government and the judiciary need to remember this whenever they presume to remake the law....

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