Thursday, 25 August 2016

Forget about the price tag?

Although Romford's finest, Jessie J., may advise a casual attitude to value, this is not an approach the enforcement agent can afford.  Sch.12 para.12 of the 2007 Act states that (subject to some exceptions) agents may not take control of goods where the aggregate value is more than the amount outstanding and the amount of future costs.  This is a restatement of the principle of "excessive seizure" which is the oldest rule of English enforcement law.  The basic elements of rights of entry were laid down from the 14th century; the concept of excessive levying was already established by the latter half of the 13th century, when the Statute of Marlborough 1267 confirmed the common law rules in statute (see my Bailiff Law volume 1, A lawful trespass, chapters 6, 4 & 7 and my Sources of Bailiff Law chapters 1 and 7).
Much of the established case law and practice on this ought, it seems, to be safely imported from the laws of distraint (see my Taking control of goods 13.9 and Bailiff Studies Centre Practice Note number 1).  Nonetheless, the new law creates three new questions for parties to debate.
  1. Paragraph 12 is one example of several references to the 'aggregate value' of goods.  This phrase is not defined, but presumably a bailiff has to assess value on the basis of what will be raised at auction or other disposal.  It is hard to conceive what other measure would be reasonable or workable, but I may be mistaken in my assumption.
  2. The legislation appears to anticipate a very close parity between the sums due and the value of the goods taken into control.  How much margin for error should an agent be allowed to protect against the vagaries of the sale process and his/her own errors in valuation?  Some latitude is permitted, it is clear.  If too little is taken, a bailiff may return later in limited circumstances; if the chattels' price subsequently rises, the agent is not penalised (para.12(4)).  Even so, it appears that a very high level of accuracy is demanded on the day that control is taken.
  3. Para.12(3) states that "goods are above a given value only if it is or ought to be clear to the enforcement agent that they are."  What 'clear' evidence should an agent rely upon?  The agent has to sell for the 'best price' (para.37(1)); what s/he anticipates this is likely to be must be a powerful, if not the sole, determinant of the value of an item.  In a dispute between debtor and creditor over a taking into control, to what could they turn for guidance as to a fair valuation of chattels?  
It is clear then that the onus is upon agents to conduct a precise estimation at the time of taking (though they will have to provide a written valuation at the time of removal under reg.35 and para.36).  I would welcome readers views on the problems and practicalities of this process.

Wednesday, 10 August 2016

Old law for new

As I've suggested elsewhere, we are now in a position to confirm the list of 'known unknowns' in the new enforcement law- the areas where further clarification is required. These include issues such as: 
  • the existence and duration of the right of an agent to remain on premises, if no goods are available;
  • the correct handling of fees when payments are made directly to creditors- as increasingly happens where online payment facilities exist.  As II have publicised in Bailiff Studies Bulletin in recent issues, a range of views as to the proper interpretation of the law and of the correct handling of funds exists, which in turn generates considerable uncertainty; 
  • the extent and nature of the 'licence' to enter premises (in other words, whether or not entry may be legitimately refused by an occupier and what the agent's response might be in such situations).  This is, of course, not a new argument and not, in my opinion, one where the law has changed at all since April 2014.  Diverging views nevertheless exist, both as to the impact of the 2007 Act and, for that matter, as to the exact status of the law before the reforms were introduced.  Suffice to say, then, that this continues to be a contentious area; and,
  • the proper treatment of goods on HP.  On this subject, the argument is that the 2007 Act grated a right to seize 'beneficial interests' in goods.  This would appear to include the 'equity' of a consumer debtor purchasing a vehicle by monthly payments under a hire purchase or conditional sale agreement.  So far there has been- we are told- one county court finding in favour of this contention, but we need clarification from a higher court.  The former law of distress for rent allowed goods on hire purchase to be taken, despite the fact that they were third party property, for the simple reason that they were to be found upon the demised premises.  The new law is rather more refined, giving the creditor the power to dispose of the debtor's share of the chattel's value only, but it provides no mechanism for doing this, not explanation of the process for sale or for making arrangements with the finance house.  They will retain a claim and must be viewed (I guess) as akin to joint owners, but agents are currently groping in the dark to develop proper procedures in such cases.
Some of these issues will have to be resolved by the courts, most particularly where they arise from the form of the new statute; some may be resolved by reference to and application of the existing case law under the laws of distress and execution. For example, many of the questions pertaining to rights of entry- whether force may be used against internal doors, how access should be gained to flats and HMOs and how long is it reasonable for an agent to remain at premises searching for goods- are all fully examined in longstanding judgments which are readily transferable to the new regime. Many previous principles and concepts were deliberately carried over, in any case- the binding power being a good example- so that it follows that guidance on understanding these may reasonably be derived from pre-April 2014 jurisprudence.

After two years, we remain virtually devoid of case authority (except for one case which largely concerns the old law). This may, of course, be because the Act was so well drafted, or it may reflect the obstacles in the way of litigation under the new dispensation. Whatever the explanation, the paucity of judgments leaves many areas of uncertainty. Many of these could, I believe,be quickly resolved by reference to the abundance of old cases we possess. Completion of the MoJ review would also help, but reference to the wealth of existing case law may prove to be a faster solution...