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.

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