Powers of distress

I have recently published on Kindle a supplement to my 2008 book, Powers of distress, which looked at the forms of seizure which were not incorporated into the 2007 Act. There are only a handful of these, but for various reasons never fully publicised, MoJ decided to keep these outside the new regime despite their obscurity and the infrequency with which they are used.

An example of such a power is the writ of execution specially designed to be issued against Church of England clergy who get into debt. This may sound like fantasy but it is quite genuine. I imagine some complex interrelationships between state and church necessitated this, but the results are duplication of law and greater complexity. The reforms of 2014 sought to simplify and harmonise the law but what they actually did was to aggravate the existing situation by creating the new process of taking control of goods and retaining alongside that the older laws of distraint and execution. Moreover, I think the retention of forms of writ not covered by the new regulations also (in part) led to retention of the old structures for the enforcement profession.

I think it must be admitted that, under the revised law, there is very little difference between enforcement agents and HCEOs. Their powers are virtually identical and whilst certain debts attract additional or special powers, it is by no means civil court judgments that are uniquely favoured; fines often are singled out for separate treatment.

As many readers will know, Lord Justice Briggs' review of the county court and High Court suggested a single civil court. This must imply, in due course, a single 'civil court bailiff.' The logical and rational direction appears to be towards increased simplicity and harmony. This would indicate that a final consolidation of enforcement powers within the modernised taking control procedure and subject to a single form of licencing/ authorisation for enforcement professionals must be an inevitable and obvious element in this.

This appears to be the sensible solution to our present muddle. However, inertia, attachment to tradition and understandable fear of change and upheaval and possile threats to income and livelihood are all likely to stand in the way.

Reinventing the inventory

"Property has its duties as well as its rights" Thomas Drummond

Sch.12 para.34 of the Tribunals, Courts and Enforcement Act 2007 asserts the centrality to the new process of taking control of goods of providing debtors with an inventory of the chattels taken into control.  This list must be supplied.  The form that must be used and the information that it must contain are set out in reg.33 of the 2013 Regulations; these require a very detailed list and description of the goods to be prepared.  

There is a long history of agents seeking to generalise or find short-cuts in completing inventories: see the previous case law set out in my Taking control of goods 9.12, Sources of bailiff law chapter 4 or in my Practice Note on the subject.  This sort of conduct may be very understandable in order to save time and effort but the new law reasserts principles that have long been insisted upon by the courts.  These are therefore not in the least new but- significantly they are now statutory duties rather than the opinions of judges, in addition to which they must stand alongside an agents' duties to their principals to protect their interests as creditors.

What latitude ought then to be allowed to agents (if any)?  For example:

• serial numbers are required- what if the rear of the item is more or less inaccessible.  Is this an excuse?
• large numbers of items may have to be taken into control in a shop or factory.  Must the agent count and describe every dress, skirt or shirt on the hangers and in the stock room?  Must he distinguish every pattern and size?  Identify every CD or DVD?
• If there is only one item of a description on the premises, so that no confusion might arise, what degree of detail is permissible?

There have been (and still are) some very poor and cursory inventories taken, therefore it would be helpful to provoke a debate on this issue and to try to determine what is good and bad practice.  What is the minimum information that an enforcement agent should provide?  How thorough should we demand agents to be?

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.

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...

Does the enforcement sector need a regulator?

Back in April 2011, I issued through Bailiff Studies Centre a discussion document (number three in the series) entitled "Do we need an enforcement services ombudsman?"  The query was met with enthusiasm from some and wariness by others.  Since then, of course, matters have moved on considerably.  At the time of writing it still appeared likely that the Security Industry Authority would have some regulatory role in the sector and that the introduction of the reformed regime of bailiff law would lead to a considerable strengthening of the procedures for licencing and monitoring individual agents.

None of that happened.  The SIA dropped out of the picture and the rejigged certification process brought in to the Civil Procedure Rules in 2014 is very far from comprehensive or robust.  We were promised thorough training for county court district judges; there is little evidence of this.  A recent issue of Bailiff Studies Bulletin highlighted some of the problems with the qualifications upon which certificates are issued and there is, of course, no regulation of agencies, only individual agents- a bizarre result in the early 21st century.  

We still lack any sector overview and any industry wide maintenance of standards or best practice.  It seems to me that there is still a very strong argument for some for of regulator (the commercial body Ombudsman Services were interested in the function five years ago).  I would propose, too, that this regulation is not limited to enforcement agents and agencies.  I suggest that there would be a useful function for all parties (not just debtors) for those offering advice on bailiff law also to be regulated.  With the proliferation of web based advice and consumer forums, I believe that there may be a role in setting and maintaining standards wherever consumers are asked to pay for advice on dealing with debt enforcement.

Another proposal for regulation that is currently in circulation is the idea of extending the remit of the Financial Conduct Authority (FCA) to bailiff services.  The main argument for this appears to be that it is anomalous for debt collection by taking control of goods to stand outside of FCA supervision when almost all other forms of debt collection are now regulated by them.  The largely unregulated status of the enforcement sector might be said, in itself, to be anomalous, but there is another more compelling argument which will possibly have to be confronted before too long.  That is, if county court judgment enforcement is opened up to the private sector (as has been suggested)- and especially if that liberalisation extends not just to HCEOs but also to certificated enforcement agents (bailiffs in the traditional sense) then compliance with FCA rules may become obligatory in any case.  Access to the work of executing county court warrants of control would almost inevitably include the recovery of Consumer Credit Act 1974 regulated agreements and that would necessitate FCA licencing.  The FCA regime is tough, but it might also go a long way to creating confidence in a professional enforcement sector and thereby eradicating the kinds of doubts and suspicions which then generate hostile and confrontational advice in some online fora.

Whether a new regulatory body is introduced or not, the current certification complaints process will still manifestly have a future: in cases of gross misconduct by an agent it enables the courts to exclude an individual from the profession and to forfeit all or part of the bond to provide compensation and pay costs.  However:

• it is not apparent that the promised training for district judges has been provided by MoJ, given the reports of widely varying handling of certification matters;
• Only individuals are certificated, not companies, and yet companies are the major factor in the sector in shaping practice and procedure; and,
• the bond remains at £10,000, the same figure as when it was last fixed in 1988.  This drastically reduces the threshold to the sector without providing an equivalent level of sanction.

Students & enforcement

At the start of the week I attended the annual conference of NASMA (National Association of Student Money Advisers) in Solihull and gave a presentation on the 'new' bailiff law.  The audience had its particular perspective and preoccupations, but a number of themes were significant:

• use of HCEOs by colleges- there has been a notable increase in educational institutions pursuing students (or former students) through the county court and then transferring their CCJs to the High Court for enforcement.  Grants, fees and similar are now pursued with significantly higher fees added against individuals who will frequently have scant assets or income.  For instance, I once assisted a student who had had to drop out of her course  because she got pregnant.  Despite being a single parent on Income Support in a council flat, her previous college chose to send an HCEO to chase her.  What possible point was there to that?  Would he take the cot or the milk bottle steriliser?  Shame on the college...
• rights of entry- as may be imagined, enforcement agents can face some severe problems accessing student accommodation when it is in halls of residence and purpose built blocks and general issues of access to private land can often serve to protect students from taking control of goods.  Likewise in the traditional shared house, locked rooms are likely to be a further obstacle even if it is possible to get through the front door of the house.
• third party goods- ownership of goods is going to be a second major hurdle or source of contention.  In halls much of the property will belong to the college; the same will be the case in rented houses, coupled with arguments over items whose use is shared with other house mates but which belong to someone else.  Questions over property at parental homes (combined with the question as to whether they are any longer the 'usual' residence of the student debtor) are likely to generate contention.  Further disputes may arise for mature students who are in relationships and have complex questions of property with their partners/ spouses.
• exempt goods- even were much of the furnishing of student accommodation the student's, it would very likely be protected as exempted household necessities.  Of all groups, students are perhaps most noticeable for their gain of specific protection for items needed for study under the 2013 Taking Control of Goods regulations.  Equipment and books needed for education or study are protected from being taken into control provided that their aggregate value does not exceed £1350 (reg.4).  Accordingly, a student's laptop, printer and other hardware (the key tools of many courses these days and the repository of essays as well as access route to online library resources) may well be protected.  In the context of the issues listed above, this was definitely something to welcome.

Where are we now?

Two years and two months into the reformed regime of enforcement law, how has the landscape changed?  How radically different is enforcement in 2016 to bailiff action in March 2014?

It is a mixed picture.  The major source of complaint before (it is safe to say) was fees.  The new fee scale, by being more remunerative at an early stage and by eliminating much of the scope for disputed interpretation, has by and large eradicated contention.  For all parties, this must be a welcome improvement- and a considerable saving of time and resources.

Equally, by front loading fees and discouraging removals, the new procedure has probably further reduced the already low numbers of disposals of goods, which must again benefit debtors and creditors.

On the downside, many of the old causes of dissension remain: arguments continue over the classification of exempted and third party goods, over the rights of entry, over the valuation of assets and over the treatment of 'vulnerable' debtors.  There are still some problems of interpretation and application linked to fees- most notably the question of VAT.  The majority of the issues just listed concern the proper manner of taking control of goods, and accordingly are still a major reason for complaints and discontent.  As most of these questions are not new, and as most of these arguments simply perpetuate arguments from before the law was reformed, it may be suggested that we still await a fundamental reform in approaches to enforcement law.

Bankruptcy & bailiffs

I was recently asked for advice on a case involving the enforcement of a local authority penalty charge notice (PCN) against a bankrupt individual. This leads to a few interesting observations on insolvency in the wake of the implementation of the taking control of goods regime.
Although Sch.13 of the Enforcement Act 2007 amended many existing statutes in recognition of the repeal of powers of distress and execution, for reasons best known to themselves Ministry of Justice left the Insolvency Act 1986 untouched. The old terminology remains in place- and we must mentally correct it as we read. At the same time, it is worth remarking that 'execution' as a term describing the enforcement of court judgments is retained in the new Civil Procedure Rules Part 83- as, for that matter, is 'levying'.

Now, a county court order for the recovery of a local authority PCN is to be regarded as identical to a county court judgment. Likewise the warrant of control: it may be enforced by a certificated bailiff, but it is equivalent to a warrant issued to a county court bailiff. Certain special rules of conduct apply to such warrants (and writs) of control- see Insolvency Act s.346, but the basic rule is simple: under s.285(3) all enforcement action must cease once a bankruptcy order has been made. The only exception to this would be where permission of court has been obtained to continue with a levy- but this is unlikely to be granted in all but the most exceptional of cases. For certain tax debts only, bailiffs may continue to take control during the 12 months of the bankruptcy order, but this power contained in s.347(8) is NOT relevant to the recovery of PCNs by execution.

I was consulted in a case where enforcement action has continued for the best part of 9 months after the insolvency began.  This appears inexcusable: the council was informed that the debt was part of a bankruptcy, after which they permitted enforcement to continue.  Both the council and the bailiffs were directly contacted again by the Official Receiver to tell them to cease their recovery action.  This did not happen.  This failure to act correctly was componded by the fact that, when the agent arrived at the house he stated (it is alleged) that he was a police officer and that he was unaffected by the bankruptcy. This worked, in that he was paid £512, but this was a payment prejudicial to the others creditors in the insolvency and will have to be refunded.

The principal message is this: the interaction between insolvency and enforcement is unchanged by the implementation of the Enforcement Act 2007 and the basic rule of practice that continues to apply is simple- most attempts to take control of goods will be terminated by the bankruptcy, winding up etc.

The other message of this case is for the local authority and its enforcement agents: check the law, comply with it- and respond in a timely fashion to contacts.  They have so far received four letters each, including a draft county court claim, and the only response made to date was a very poorly informed letter from a complaints officer at the bailiff's company expressing the opinion (for it was no more than misguided prejudice) that PCNs were unlikely to be included in bankruptcy.  This was patently wrong and ignored the OR's specific guidance on the case.  The only thing to be said in their defence was that they inaccurately referred to the PCN as a parking 'fine'.  If it were a fine, then enforcement could continue- but it is not.....

The new Black Acts

It seems we may be entering a new Georgian age. The 18th century is famed for the number of property offences for which the punishment was death. Poaching is most notorious, but a range of other more minor crimes also attracted a capital penalty. As we enter 2014, we seem to be recriminalising offences against property- matters which have perfectly well been protected by civil sanctions previously. The Prevention of Social Housing Fraud Act 2013 is the most extreme example, making it a criminal offence to sublet your council house. It seems that eviction was not bad enough. Now, with the imminent implementation of the Tribunals, Courts & Enforcement Act 2007, another new offence arrives. Under Sch.12 para.68 of the 2007 Act it becomes an offence to interfere with goods taken into control and to obstruct a bailiff. The former replaces the longstanding- if redundant- offences of rescue and poundbreach. The second offence is new and its scope is as yet uncertain. Comparing the new misdemeanour to obstruction of a police officer, it seems likely that the conduct likely to constitute this offence will involve matters less than assault and battery- for which sanctions already exist- and may include nonviolent obstruction, lying, abuse and unhelpfulness. It is interesting to speculate how much this may effect future protest movements- and how much it was intended to inhibit protest. Objections to government policy (especially, of course, tax policy) has often manifested itself through tax refusal. Henry David Thoureau writing On the duty of civil disobedience said that refusing taxes was the "simplest, most effectual, ... the indispensablest mode" of resistance. "This in fact is the definition of a peaceful revolution, if any such is possible." Protest by means of resistance to bailiffs has been fully described in The Victorian bailiff, Distraint and discontent and, most recently, Weapon of authority but I shall illustrate this theme by one further, if rather extreme, example. In 1914 the East London Suffrage Federation proposed a rent strike as a way of demanding the vote for women. In support of this campaign they organised a People's Army. In the context of paramilitary forces forming in northern Ireland at the time, this might have eemed slightly less remarkable than it does now, but it was still a challenging action. The Army drilled at Ford Road, Bow and promised to defeat bailiffs sent to break the strike: if intimidation of landlords did not succeed, and the brokers were put in, "they will rescue the furniture and carry it home in triumph..." (The Syndicalist vol.III, no.1, Jan.1914 p.1; The Woman's Dreadnought Advance issue, March 1914 p.8). If such direct action failed, the Army promised to attend sales, pack the auction rooms and bid a penny per item so as to "baffle the bailiff." The rent strike and action against bailiffs were "The Working Women's Weapon." Despite these brave words of Sylvia Pankhurst, this particular campaign never took off. In fact, the greatest success of the ELF was lobbying against individual distraints during the First World War (Woman's Dreadnought no.25, Sept.5th 1914 p.1)and generally campaigning on behalf of the vulnerable suffering as a result of the conflict. Nonetheless, it is clear that such actions today, even if no violence of any description is provoked, will potentially lead to prosecutions of dissenters, a penalty for their dissent alone. How much the new offence is utilised- and how much it effects the future of civil disobedience- remains to be seen...

The dialectics of distraint

Researching the use of distraint for harbour dues etc, (for which see Powers of distress 2009) I came across material also on the use of distraint during the industrial revolution (see The Victorian bailiff- conflict & change c.1), which set me thinking too about the use of distraint as described in Weapon of authority chapter 4.

In the case of Swire v Leach (1865) Serjeant Sandars, appearing as counsel for the plaintiff, argued on appeal that "The right of the landlord to distrain for rent is an exception on the common law of England."  Is this true?

If we consider the granting of powers of distraint to railway and canal companies- as well as to private ports and markets- it seems that this statement is incorrect.  The landlord's right of distraint may have been the first devolution of the state's powers of execution onto a private individual, but the later grants by Parliament are a similar privilege allowed to newer forms of capital.  Just as property in land was favoured with extra-judicial rights, so property rights in industrial enterprises received a similar beneficial treatment, so as to encourage and assist them.

It may be argued that these rights of seizure for toll etc are more akin to distress damage feasant- which may be true- but then, that too is a privilege of the owner of property.  Another interpretation of these instances might be this:  In Proprietors of the Stourbridge Canal v Wheeley (1831) 2 B&A 792 Lord Tenterden CJ characterises these statutory rights of distraint as the result of a bargain with the public.  The beneficiary acts in the public interest, performing a public function, and consequently is given the advantage and encouragement of the use of devolved state rights.  The capitalist ventures his time and resources; this is supported by the Crown which lends its authority to the endeavour.  This a more benign representation of the agreement, but we are still dealing with certain individuals and interests being privileged with rights of self help outside the judicial system for the purposes of enhancing private enterprise and profit (as well as, if not equally with, providing a public benefit).

Many of these private rights of execution have since lapsed, but they still persist in the hands of some private ports and market operators, so the landlord's right is still not unique. All remain examples of state power delegated to private hands.

Cameron's poll tax has arrived

The beginning of April saw the replacement of council tax benefit by council tax reduction schemes in every local authority.  The new schemes are not 'benefits'- they are regarded as an extension of the various exemptions and discounts that applied already to the tax; secondly, they are local, not national, so that every council's arrangements will be different in detail.  One thing does apply nationally, though, and that it the fact that everyone will have to pay something.  Previously council tax benefit covered 100% of the liability for those on certain benefits such as Job Seekers' Allowance and Income Support.  Now they must pay a minimum contribution of at least 5%- although their income has not gone up to assist with this.  In fact, as we know, benefit rises have been reduced.

This measure cannot be viewed alone.  It must be considered alongside the bedroom tax and the benefit cap. The impact of these will be to require low income tenants to also contribute extra sums out of their subsistence incomes to cover rent no longer covered by housing benefit.  The benefit cap seems particularly unjust: the major proportion of most weekly benefit payments are housing benefit.  That money, of course, goes straight to landlords to pay their rents.  The weekly benefit entitlements sound enormous, but this is misleading as it is the landlords, not the tenants, who are gaining.  In the present overheated private rental market, it is unrealistic to suggest that tenants can easily move- or move to any cheaper accommodation- and certainly improbable to imagine that most private landlords will negotiate lower rents.  If the HB bill is too high, cap rents- don't punish the consumer!  But that is not how the government has decided to solve this problem.  It seems that they have never heard of "fair rents" or recall the role of the local authority rent officer in fixing a maximum reasonable rent for a property.  That would have been the proper way to address the problem.  Instead, tenants are asked to find money from the sums paid to them for food and fuel to cover large contributions to top up the HB. 

So, what will be the effect?  Well, what would you pay if you had to choose: your rent (or face certain eviction) or your council tax (and face a liability order and a bailiff's visit- when you don't have to let the bailiffs in)?  Any rational person will pay the landlord and not the new council tax liability.  Money will be extremely tight and very difficult choices will be involved, but this is what many advice agencies will have to be telling clients.

What will be the impact for local councils?  They will see rent arrears rising from those hit by the bedroom tax but trapped in their current accommodation; they will see CT arrears rise as people prefer rent over tax.  In addition, as the schemes for reductions have been devised locally at great cost to each council, there will probably be many initial appeals to the Valuation Tribunals to challenge the details and workings of these new regimes.  These will clog up the system and incur substantial expense for local authority staff.

More work for bailiffs, then, but tiny debts owed by people who are desperately short of money.  Nice one, Dave.

Fancy a consultation?

At last, we have received the Ministry of Justice response to the consultation issued last year on the implementation of the Tribunals, Courts & Enforcement Act, passed in 2007.

Is there a government department which moves more slowly than MoJ?  Is there a government department which, after such a delay, can produce so little?  What are we promised?  The response is as follows:

• action to deal with 'aggressive bailiffs.'  This phrase is an invention of the Coalition and does not relate to the reality of day to day experience.  For example, we are told that bailiffs will not be able to force entry at night (I can think of one complaint received in 26 years) and will not be able to enter when only children are present (also, one case in 26 years).
• we are offered the existing provisions of the National Standard as if they were some innovation;
• we are (suspiciously) promised 'a set of simple rules' on bailiff procedure.  Is this just more spin and blather or is it a genuine reflection of MoJ intentions?  The draft regulations produced for consultation a year ago were very far from "simple."  They were a nightmare of complexity in places, a fault which was largely the result of the government trying to reproduce all the exceptions and complexity of the present law.  For every rule, different rules applied to the HMRC and to HCEOs.  Why?  More than a decade ago we were promised a single piece of bailiff law.  Instead, last year's draft preserved the status quo- for the simple reasion that the government benefits from the status quo.  Perhaps radical reform is now intended, after all; or perhaps we are just dealing with simplification and attractive headlines for the benefit of the press;

 and,

• we are offered a single simpler fee scale.  This is welcome as fees are the source of so much contention.  That said, the new scale is unlikely to prove popular with debtors and debt advisers because of the substantial increases in fee envisaged.  Simplicity and modernity come at a price, it seems, and the final fees will probably turn out to be somewhat higher than those discussed a few years ago.

What we know for sure is none of this will happen very quickly.  What we are promised is more discussion.  Over the last 15 years we have had working parties on certification, on revising the rules on court bailiffs, on rewriting the current law and on the new qualifications for enforcement agents.  All of these have involved extensive consultation with stakeholders.  The government knows pretty well what all the concerned parties want.  Despite this, we are to have two more working parties to look (again) at the rules and fees and to look (again) at qualifications and training.

New law in force in 2014, anyone???

Fees in advance?

In a recent exchange of correspondence, I sought a breakdown of fees from an HCEO.  This company provided the figures very promptly, but included a number of charges for actions I did not believe had yet been taken.  When I queried these, I was informed that the bill included items which typically would be charged during a levy of execution- but which might not arise in this case- and which would be removed from the account, as appropriate, as matters developed.

Does this seem right?  Does it seem fair?  Is it clear and transparent?  How does a judgment debtor know what s/he is required to pay to discharge the execution? 

Let us imagine (for the sake of argument) that the director of a large HCEO company- let's say John Marston of Marston's Group purely for example- takes his Jaguar to the garage for a service.  How would John react if he was, upon delivery of the car, presented with a bill by the mechanics for a range of major repairs- replacing all the tyres and brake pads, replacing various electronic components, some major bodywork and respraying- because this work often has to be carried out on vehicles and it might need to be done on his?  All he has to do is pay now, in advance- but there'll be a refund or adjustment later if it turns out that none of this is necessary.  Would John accept this outrageous and speculative imposition?  Would he pay and trust the garage- or would he decide to go elsewhere?

How can consumers of any service (willing or unwilling) properly be charged for actions which have not been performed and may never be performed, as they are contingent on circumstances?  Payment in advance is reasonable enough if you can be confident that what you are paying for is definitely going to be done; however, if the charges are dependent upon there being seizable goods, upon access to those goods and upon a range of other unpredictable factors, it seems to me that such demands should not be made.

It will (hopefully) be little surprise to hear that the courts have agreed over the years.  A bailiff should only charge for what he has actually done; that's the rule, in a nutshell, and a pretty sensible and obvious one it seems.  Advance, speculative- or even wholly made up fees- should never be included on accounts.  But, clearly, they are- and it isn't just this particular firm either.

Notes on the theory & practice of bailiffs' law

My assault upon the bookshelves of Kindle continues.  I have assembled all the BSC Practice Notes into one volume, adding checklists, good practice advice and case studies from advice experience, to create a short and handy best practice guide for enforcement agencies. 

The learning curve continues though- the Kindle site blithely asks you to upload the cover image (jpeg or gif files only accepted).  I discovered how to convert them- screen capture, paste into Pictures, copy the relevant part and save-- but a screen capture is just what it says it is.  You get a snapshot with the cursor and any green underlining for grammar check showing- and this carries over into the cover image on Kindle if you're not careful (which I wasn't!!!!). Similarly creating books on the Amazon 'Create Space' website (which is a print on demand source of publications) has many virtues (speed, simplicity of use and convenience) but you have little control over the quirks of their typesetting process.  I have uploaded my book on Native American languages, Lost by translation.  When the pdf proofs came through various oddities of layout had crept in during the process of page creation at Aamazon's end; I soon realised that I could do nothing to eradicate them and just had to live with them- they're not disastrous, but just a little less than perfect: the last paragraphs of any chapter are centred on the page; widows and orphans can't be removed (except, perhaps, by a very long process of trial and error in adjusting your original Word document which, frankly, I could not be bothered with).

These teething troubles aside, there's now a pretty impressive selection of texts available through Amazon.  I have also finished my two new bailiff law histories ('The Victorian bailiff- conflict and change' and 'More popular than the hangman- the Victorian sheriff's officer'); these will be loaded to Kindle soon but, along with the text for the new Notes,  can also be purchased directly as Word documents or pdf files- see the Bailiff Studies Centre page on Facebook for more information on prices, contents etc.

A little knowledge is a dangerous thing...

During my researches I have had cause to use consumer forums like Consumer Action Group and Legal Beagle.  They have been very useful in providing data for current debtor concerns over areas of enforcement practice.  It is clear too that the forums provide support and information for individuals which they find immensely helpful.

Nonetheless, I have formed the opinion that in some cases individuals are not helped by having only part of the story- or getting hold of the wrong end of the stick.  Forums are vital sources of instantly accessible information, but in a technical area like bailiff law they may best function as pointers to other web sites or to publications or advice agencies who can offer full and detailed assistance with the subject.  I will offer two examples:

1) certification complaints- on this I speak purely from speculation.  There has been a rise in complaints against bailiffs' certificates which have gone to trial in front of circuit judge, have been defended by counsel representing the bailiff and which have led to large costs orders against the complainant debtor because the complaint was ill-founded.  In part these hearings are the fault of county courts not following the Distress for Rent Rules procedure: judges should review and dismiss inappropriate complaints before any hearing is arranged, but this does not seem to be happening.  Partly, though, I suspect that it is consumer fora encouragig individuals to use the procedure (because it is quick, easy and cheap) for matters which should not be tackled by this means.  A certificate should only be revoked- and a livelihood endangered- for the most serious of abuses by a bailiff.  Minor disputes about fee calculations and the number of visits actually made are not suitable for this procedure.  Its use for such complaints has probably led to a harsh reaction by bailiffs' companies and the high costs awards which some complainants have suffered.

2) 'harassment letters'- I was recently asked by a firm in the East Midlands to comment upon (and prepare a response to) some letters sent by debtors which declared the bailiffs to be "interlopers" who by further calling would make themselves liable to "damages" for which they would be invoiced (!) by the debtor.  These letters seem to be derived from a Canadian consumer advice website, as far as I can see; they were devised with a view to dealing with debt collectors pursuing disputed consumer debts.  They are therefore pretty irrelevant to bailiffs enforcing debts due under statute.  They are also a jumble of any old legislation that may be cited to sound impressive- whether appropriate or not: the Bills of Exchange Act (taken directly from the Canadian source), the Admin of Justice Act 1970 (which only applies to contractual debts) and so on.  Add some legal jargon (non-negotiable/ all rights reserved) and some Latin ("non assumpsit"- which was the defence to the old form of action for breach of contract, called assumpsit) and you have somehting which can look scary to the uninitiated, but is ultimately fairly worthless.  Piling up the statutes, without citing sections or knowing what those sections actually say, is of no value to any one.  Standard letters are all too easily downloaded, but may be of little real assistance.

THIS IS THE MODERN WORLD!

I have decided to firmly commit myself to the 21st century whilst still espousing those good old punk ethics of do it yourself, so I have signed up to Kindle and Amazon's Create Space for self publishing.

I had a number of texts which I had preapred but which had sat around in cupboards for some years, occasionally being added to, and decided that the time had come to act.  Several articles in the paper after the new year told me how easy it was to self publish, especially e-texts, so I decided that the time had come.  I had some solid free time in which to do it so i gritted my teeth and sat down at the PC to get the books out there.

The major lesson is: it's really easy provided that you have the texts set up right in the first case.  I hadn't; too many bad habits from self-taught typing.  My sins included:

• using tabs to indent rather than the ruler thing at the top of the page in Word;
• not using 'Styles & formatting' to create levels of titles and just using bold/ italics and positioning to do it myself;
• no first line indent on paragraphs.

These were the main ones- and the big time commitment was simply going through the books weeding all these things out. That made my eyes hurt but once it was done, the rest was very simple and quick.

Once I was signed up (again easy peasy) I just had to upload the Word document and cover and let them do the rest.  In truth, the cover was the other issue- it had to be presented as a jpeg or gif file: I had designed some nice looking covers (well, I thought so anyway), but they could not be read as they were.  How do you convert Word to jpeg?  Microsoft don't tell you, but Mr Internet (as ever) had the answers.  Again, it wasn't difficult at all- just a few stages to master- and then it was all smoothly completed.

SO, the adverts: what is up there?  I have so far e-published 3 books:

1) Estrays & executions- a collection of my published articles and essays on the development of the laws of distress and execution and on agrarian byelaws.  I look at such issues as the origins of 'legal custody' and the campaigns of resistance to levies of distress that formed part oof the political campaigns against tithes and the poll tax;
2) Customs' duties- a full length study of village and manorial byelaws regulating the infrastructure of field and home; and,
3) Lost by translation- a book about language and the invasion of North America.

Only the first of these is a 'Bailiff text', of course, but there will be more to follow:

- my two new histories of 19th century bailiff law; and,
- the second edition of my Common land.

All the details are on Amazon of course, plus the author page and other information.
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SOURCES OF BAILIFF LAW- at last!!

Yesterday I received copies of my new book, Sources of bailiff law, only three months after I expected them to arrive.  This delay was due to "problems at the printers"- some sort of technical error on the first print run, apparently- but the delay was frustrating- especially when I had trumpeted the book's apperance based on the original publication date...  May be I was just making it up??

Anyway, the little blue tome is now with us and you can secure your copy from all good book shops etc etc...

Even when they ran, crisp and shiny, off the presses their journey to me was not yet smooth.  My publisher forgot my change of address and sent the box to the old premises.  It could not be delivered there so I had to visit the sorting office once the new occupier had dropped off the 'while you were out' card. 

The box was collected alright, but I asked the man behind the counter why the one year's redirect we's paid for had not worked.  This was because "the postman sees it but the parcel delivery man does not."  Huh???  Is the Royal Mail a single organisation?  Does information not get shared?  Is there a sepaeate parcels redirect (not that I've heard- and the fee already paid might seem sufficient cover the odd stray parcel in any case). 

So there we are- the workings of bureaucracy; but all's well that ends well after all.

WHY THERESA & JONATHAN ARE WRONG

As we all know the clamping ban is now law- if not yet in force.  As I have said several times in Bailiff Studies Bulletin there are two unexpected risks in the new Act: one is that the ban fails and that 'cowboy' parking enforcement continues unabated; the other is that civil debt enforcement is criminalised.

I am currently researching two books on 19th century enforcement.  In the course of this I have turned up further materials confirming what I have argued in detail and at length in several previous publications- that impounding on a debtor's premises is not lawful unless statute permits it. 

In one chapter of one of the new books I examine the evolution of close possession.  In my search for materials I came up with several Parliamentary reports and documents in which government and MPs confirm what I already knew- that walking possession (for example) is not lawful unless Parliament acts to make it lawful.  This is no revelation- look for example at chapter 8 of A lawful trespass- but these new sources underline the point yet again.  The same reasoning must of course extend to close possession or clamping.  Without clear authority in statute, these remedies cannot be used.

I've said it many times before- and apparently will keep repeating myself- these processes may be convenient and effective, but they are not strictly permissible.  No-one hears because no-one wants to hear.   BUT perhaps a few criminal prosecutions would make someone listen.  Clamping becomes an offence without lawful authority- bailiffs will find that they cannot point to lawful authority because (except in just a couple of cases) they have never been given that authority by Parliament.

This is Parliament's fault- not the bailiffs'- and the complacency of Theresa May and Jonathan Djanogli on this issue has been quite staggering.  My lone voice on this issue was too small to be heard, it seems, but you might have hoped that, given full citations of all the cases and other sources, someone in government might have been able to come up with a better counter argument (if we may dignify it with such a name!) than "Ministry of Justice thinks that the right to distrain includes the right to clamp."  Does it?  Well, as we say in South Yorkshire- "Tha kno's nowt" and hopefully events will confirm this.

A journey into Wales

Bailiff blogger recently went on a research trip tp wales to do a bit of "bailiff studying" as well as a training session.  I had reserved materials at Gwent Archives, which involved me in a major expedition into the deepest Valleys.  The Archives used to be in Cwmbran, which was relatively accessible and quick to reach.  Presumably as part of an EU funded regeneration project, the whole office flitted to Ebbw Vale.  This is at the end of a single track railway line and hour from Cardiff- and even when you get there it's a half hour walk along a hillside road to find the place.  The reason Ebbw Vale needs regenerating is plain to see: there used to be a huge steel works which is now a waste land (or more correctly a building site, as they are now building executive flats and shopping malls in order to 'revive' the place).   Further down the valley was the site of a former pit and a quite few derelect factories; once, they used to do something useful here.  Now the useful employment seems to be building useless leisure facilities.

After looking at the Archives, which took less time than I expected, I walked into Ebbw Vale.  The town centre on a Thursday lunchtime in the drizzle was not an inspiring sight- to be honest, it'll take a lot of regeneration to revive this town.  I'm sorry to say it must go near the top of my list of depressing places I have visited for work, up there with Hartlepool, Thetford, Middleton and Workington (apologies if any readers live in any of these!)

The train back to Cardiff was only hourly, so I had a good look around, and must admit I was pretty glad to be back on my way south.  The information I found at the Archives was not completely what I was after, but it was still useful, and the staff were very efficient and quick- so many thanks to them.

Back in the big city, one thing that struck me at Cardiff Central/ Caerdydd Canolog was that the announcements never seem to end.  Once you've given every train arrival and departure in two languages- plus the "please mind the gap between the train and the platform" message- every few minutes, there seemed to be no peace at all. 

Peace was to be found by the river Taff in the park.  Two major factors in a great city are open space and a river.  Cardiff has both and I would be quite content to live there, I reckon.  The possibility every lunch time of getting out of the office and walking by the river under the trees, until you find yourself alone with a distant prospect of hills, is something to envy the local workers.

Still, it wasn't all pleasure- I should stress.  The research done and the materials written up whilst I was there will soon emerge as part of two new studies of bailiffs and bailiffs' law.  Watch this space for details!

Wheel-clamping ban becomes law!

On Wednesday May 1st the wheel clamping ban contained in s.54 of the Protection of Freedoms Act received royal assent and became law.  It is not yet in force, but the Act will start to be implemented from July, after which point clamping a car will be a criminal offence.

The government is very pleased with its blow for motorists' freedom against cowboy clampers, but I anticipate that the Act will fail.  I say this because the government has failed to listen to advice from experts and has produced only a partial measure.

It will be an offence to clamp "without lawful authority."  The Act specifically states that it will no longer be possible for clampers to say "you saw the signs warniong you it was private land and parked anyway, taking the risk of being clamped."  However the Act overlooks a key fact: land owners in England and Wales have a fundamental common law right to use self help means against those trespassing on their land.  In other words, they can tow away and impound a car that should not be there.  This right seems to provide the perfect 'lawful authority' for  private parking enforcement to continue- albeit now involving removal rather than immobilisation.

Which is worse for a driver?  A car clamped- with a fee to pay- or a car removed- with far higher fees to pay?  Police time will be wasted with calls from people thinking their vehicles have been stolen.  Motorists will have to pay much more to get back on the road again than they did beforeand the essential problem the government sought to resolve will remain.

I guess that those firms who block in drivers and use other intimidatory tactics that often create the parking contravention in the first place may disappear.  Perhaps this is the aim; the freedoms of land owners will still be protected as they will not be deprived of a remedy and the rogue operators might be driven out.

Perhaps this was the Home Office plan.  I am not convinced.  I wrote several times to Theresa May and Lynne Featherstone and- when they did bother to reply- their responses were brief and complacent.  The key legal issues that had been raised with them were never addressed in detail.  There was a complete failure to engage in debate or even to provide a reasoned explanation for the policy adopted.  They had ben reassured by civil servants and department lawyers that it would all be OK, and this was as much as they were preapred to say.

So far, so unsatisfactory.  But there is worse.  My research strongly indicates that most private bailiffs enforcing debts do not have any 'lawful authority' to clamp.  There is neither case law nor statute allowing them specifically to immoblise- indeed, the law seems to say quite the opposite.

This means that any bailiff clamping a car will, in future, be committing an offence under the 2012 Act.  ooops.  What did HM Government have to say about this?  basically, nothing.  "We believe that bailiffs levying distraint can clamp."  And your reasons are......?  Again, no debate, no discussion, no reasons, no cases, no law at all.  Just bland assurances without any substantiation whatsoever.  The result could be that the unplanned results of the Act are an even bigger disaster than the planned results.

So, the worst case scenario for the Protection of freedoms Act is this:

• a lot of clamping firms will close and their staff will be made redundant, creating more unemployed during a recession;
• some firms will carry on but as tow companies instead of clampers.  This will be perfectly lawful and the new Act will not be able to stop it;
• bailiffs collecting debts will suddenly all be criminalised;
• police officers will spend time looking for stolen cars which haven't been stolen and being called out to arrest private bailiffs who will now find that a standard part of their procedure has become a crime.

Well done, then Theresa and Lynne.