June 12, 2019 at 12:26 pm #22298AdministratorKeymaster
The bailiff must wait until the legal time limit has lapsed before he can attend. The law says the Notice is given by second class post, which means, it is delivered on the 4th weekday after posting – unless the sender makes a sworn affidavit. If the bailiff has attended in haste, enforcement fails and you can sue for damages including recovery of goods taken or claim the replacement cost of them.
The bailiff attended TOO SOON after being given the Notice
The law provides for up to 20 CALENDAR DAYS between the date printed on the Notice of Enforcement and the first day the bailiff turns up.
Regulation 6(1) of the Taking Control of Goods Regulations 2013 states;
Minimum period of notice
6.—(1) Subject to paragraph (3), notice of enforcement must be given to the debtor not less than 7 clear days before the enforcement agent takes control of the debtor’s goods.
(2) Where the period referred to in paragraph (1) includes a Sunday, bank holiday, Good Friday or Christmas Day that day does not count in calculating the period.
You assume the notice was given by second class post, unless the bailiff company proves by way of an an affidavit the Notice of Enforcement was given by affidavit (a sworn statement)
The rules prescribed to calculate how long 2nd class post takes from the date of posting to the date of delivery is prescribed in 2.0 Practice Direction – (8 March 1985) Service of Documents – First and Second Class Mail, which states;
With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.
1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.
2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-
(a) in the case of first class mail, on the second working day after posting;
(b) in the case of second class mail, on the fourth working day after posting.
3. “Working days” are Monday to Friday, excluding any bank holiday.
4. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.
5. This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.
The following table may assist you work out whether the enforcement commencement meets the required lapsed prescribed periods.
There are two periods that are added together.
The 7 clear business days for the Notice of Enforcement allowed under Regulation 6(1) and;
The time allowed for the delivery of 2nd class post under Practice Direction 2.0
1 Tuesday, April 16 2017 The date of issue on the Notice of Enforcement – see example notice, this is the date the notice is posted 2nd class. If the TIME on the notice (e.g. 23:59) is after the last post of that day then add one more day 2 Wednesday, April 16 2017 2nd Class post clear day 1 under 2.0 Practice Direction 3 Thursday, April 16 2017 2nd Class post clear day 2 4 Friday, April 16 2017 Bank holiday Good Friday – not counted 5 Saturday, April 16 2017 Not counted because “Working days” are Monday to Friday, excluding any bank holiday 6 Sunday, April 16 2017 Not counted because “Working days” are Monday to Friday, excluding any bank holiday 7 Monday, April 16 2017 Easter Monday – Bank Holiday – not counted 8 Tuesday, April 16 2017 2nd Class post clear day 3 9 Wednesday, April 16 2017 2nd Class this is the “fourth working day”, the Notice is given on this date 10 Thursday, April 16 2017 Regulation 6(1) of the Taking Control of Goods Regulations 2013 – clear day 1 11 Friday, April 16 2017 Regulation 6(1) – clear day 2 12 Saturday, April 16 2017 Regulation 6(1) – clear day 3 – Saturdays are counted under Regulation 6(2) 13 Sunday, April 16 2017 Not counted 14 Monday, April 16 2017 Clear day 4 15 Tuesday, April 16 2017 Clear day 5 16 Wednesday, April 16 2017 Clear day 6 17 Thursday, April 16 2017 Clear day 7 18 Friday, April 16 2017 This is the first possible date the bailiff can lawfully attend. 19 Saturday, April 16 2017 If the Notice of Enforcement shows a time that falls after the time of last post, then this day is the first day the bailiff can attend. 20 Sunday, April 16 2017
Otherwise, enforcement fails on Paragraph 7(2) of Schedule 12 of the Tribunals Courts and Enforcement Act 2007 and the debtor can bring an action for redress under paragraph 66(3) of Schedule 12
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