June 12, 2019 at 8:24 am #22242AdministratorKeymaster
Bailiff attended about a debt you knew nothing about
You have an unpaid county court judgment, and it was transferred up to the High Court for enforcement. The bailiffs ambushed you unawares. You can apply to stay the execution of the writ and set aside the judgment. That stops enforcement and takes the bailiffs fees out of circulation. You must act quickly because the enforcement power is live until the court has stopped it. It doesn’t matter if you paid the bailiffs. You can still recover all your money and claim damages for breach of enforcement regulations.
Stopping a High Court Enforcement Officer (and quash the fees!)
Any of the following
Apply to stay the writ and SET ASIDE the judgment
Apply to stay the writ and VARY the judgment
Pay the creditor direct
Deploy Pay & Reclaim
Check the transfer up to the High Court is compliant with regulations
If the debtor is a company, wind up the company.
Apply to stay the writ and set aside the judgment.
If you were unaware of the judgment until after is was made, and
You acted with reasonable promptness when you learned of the judgment, and
have reasonable grounds to defend it, then:
You apply using a Form N244, (Court fee £50) to the High Court Registry that issued the writ to stay the execution and set aside the original judgment.
That stops enforcement and cancels the all the bailiffs fees.
The application is made at the High Court district registry that issued the writ. The address can be found on the writ, or you can do it at the High Court at The Strand if you don’t know which registry.
Ask the bailiff for a copy of the writ. If your request to see a copy of the writ is refused then enforcement fails on non-compliance with paragraph 26 of Schedule 12 of the Tribunals Courts and Enforcement Act 2007. You can recover everything under paragraph 66 of that Schedule. The solicitors costs in bringing those proceedings are paid by the party that refused to show the writ.
Otherwise complete the Form N244 to apply for the stay of the writ and to set aside the judgment (or to vary the judgment)
If you face imminent enforcement action, then ask court staff to go before a master to hear your emergency application straight away, they can usually see you immediately or set a listing within 24 hours.
If you live a long way from the district registry hearing your application, ask for your travel costs at the “prescribed rate”.
There is a fee about £50 for making the application but if you are unemployed or on a low income, complete a Form EX160a fee remission and you might be able to do it for free. Make sure your income is below the ‘stated amount’ given in the accompanying guidance notes, otherwise you can ask for your costs on the Form N244.
Take (or send by post and email) two copies of Form N244 to the district registry that issued the writ or, if you don’t know which registry issued the writ, then to the High court in the Strand in London (and apply form your travel costs).
If your application is granted then enforcement stops and all fees revoked.
If you have already paid fees then you can still reclaim them. The Enforcement Officer might say the writ cannot be “un-executed” but you are still entitled to a refund by recovering them from the judgment creditor.
Send a text to the bailiff informing the writ has been stayed. You don’t need to give evidence. That is the creditors problem.
On Part 3 of the form:
The Defendant applies for:
a) The execution of the Writ of Control to be stayed and the judgment to be set aside because the applicant was unaware of the debt until receiving a document from an enforcement agent, and there are reasonable grounds to defend the original judgment.
Apply to stay the writ and a variation of the judgment
The procedure is the same as above, but instead, apply for a variation of the judgment.
On Part 3 of the form:
The Defendant applies for:
a) The execution of the Writ of Control to be stayed
b) An order to vary the judgment debt to be paid in periodical amounts of £[AMOUNT] for [NUMBER] of months until the judgment sum is paid starting on [DESIRED DAY DATE AND YEAR OF FIRST PAYMENT] with the final payment of £[AMOUNT] to be paid on the [DAY AND DATE AND YEAR]
Do not include High Court fees, or High Court officers fees in the above sum, only use the original judgment debt in your calculations (on the form N24).
There is a free litigant in person advice service at the Royal Courts of Justrice (The Strand in London). 0203 475 4373 9.30am – 4pm.
Pay direct to the creditor
If you pay the amount outstanding to the creditor by cheque by post and keep a copy or the cheque and proof of posting. The enforcement power ceases to have effect. The bailiff cannot take control of goods to recover fees.
The amount outstanding is the sum on the writ including interest to the date you make payment. It does not include bailiffs fees. If the bailiff has taken control of goods, then the amount outstanding includes any costs paid by the bailiff in connection with taking your goods.
Paragraph 6 of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 states;
6(1)For the purposes of any enforcement power the property in goods of the debtor ceases to be bound in accordance with this paragraph.
(2)The property in any goods ceases to be bound—
(a)when the goods are sold;
(b)in the case of money used to pay any of the amount outstanding, when it is used.
(3)The property in all goods ceases to be bound when any of these happens—
(a)the amount outstanding is paid, out of the proceeds of sale or otherwise;
(b)the instrument under which the power is exercisable ceases to have effect;
(c)the power ceases to be exercisable for any other reason.
Paragraph 58 of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 states;
(1)This paragraph applies where the debtor pays the amount outstanding in full—
(a)after the enforcement agent has taken control of goods, and
(b)before they are sold or abandoned.
(2)If the enforcement agent has removed the goods he must as soon as reasonably practicable make them available for collection by the debtor.
(3)No further step may be taken under the enforcement power concerned.
When you have paid the creditor before the enforcement agent started any enforcement stage you must notify the bailiff under paragraph 59(2) of Schedule 12 of the Act. It revokes any further fees thereforward.
59(1)This paragraph applies if a further step is taken despite paragraph 58(3).
(2)The enforcement agent is not liable unless he had notice, when the step was taken, that the amount outstanding had been paid in full.
(3)Sub-paragraph (2) applies to a related party as to the enforcement agent.
(4)If the step taken is sale of any of the goods the purchaser acquires good title unless, at the time of sale, he or the enforcement agent had notice that the amount outstanding had been paid in full.
(5)A person has notice that the amount outstanding has been paid in full if he would have found it out if he had made reasonable enquiries.
For the avoidance of doubt.
“Amount Outstanding” is defined in Paragraph 50(3) of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007, which says;
(3)The amount outstanding is the sum of these—
(a)the amount of the debt which remains unpaid (or an amount that the creditor agrees to accept in full satisfaction of the debt);
(b)any amounts recoverable out of proceeds in accordance with regulations under paragraph 62 (costs).
Provided the bailiff has not taken control of any goods, there are no amounts recoverable out of proceeds. That leaves just (a) above, the debt which remains unpaid. These regulations do not add “fees” to the above-mentioned sum.
To take control of goods, the bailiff must perform one of the four steps prescribed in Paragraph 13(1) of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007
13(1)To take control of goods an enforcement agent must do one of the following—
(a)secure the goods on the premises on which he finds them;
(b)if he finds them on a highway, secure them on a highway, where he finds them or within a reasonable distance;
(c)remove them and secure them elsewhere;
(d)enter into a controlled goods agreement with the debtor.
Paragraph 31 of the Taking Control of Goods: National Standards 2014 states;
Enforcement agents must not seek to enforce the recovery of fees where an enforcement power has ceased to be exercisable.
Make a cheque payable to the name of the creditor for the amount outstanding, not including bailiffs fees
Take a photo of the cheque
Enclose a note giving references and what this payment is for
Post it to the creditor by REGISTERED POST, (and if they refuse to sign for it, it proves it reached its destination and the payment was ‘tendered’)
Send the bailiff company a message by post and by email (template below) and to the bailiff by text message, saying the amount outstanding has been paid direct to the creditor. Keep a copy of the message.
Make a file note of everything.
NEVER pay the bailiff otherwise your money goes straight in his pocket under a pretence he “seized” the money as “goods” under paragraph 50(1) of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 or dishonestly making a back-dated attendance AFTER the debt has been paid and thereby cheating you the enforcement stage fee of £235. That is actually Advance Fee Fraud.
If the creditor is vexatious or frustrates you, then make an application to set aside the writ, or to vary it as described above.
If the bailiff takes an enforcement step after paying the amount outstanding, then have a solicitor bring an action for breach of paragraph 6(3) of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 under paragraph 66 of that Schedule. Legal fees cost you nothing because the bailiff company is liable on an indemnity basis. He breached a provision in the Schedule 12 enforcement procedure, and they have Professional Indemnity Insurance for this.
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