June 12, 2019 at 1:14 pm #22321AdministratorKeymaster
The controlled goods agreement is a regulated contract between a bailiff and a debtor. If the agreement is not compliant with regulations stating what is must contain, then it fails. Typical reasons a controlled goods agreement fails are the bailiff not identifying the goods listed, or their quantities taken into control are estimates. Controlled Goods Agreements also fail when the goods listed are not the debtors, or a person other than the debtor has signed it without the debtor’s permission.
The Controlled Goods Agreement is not compliant
Paragraph 13(4) of Schedule 12 of the Tribunals Courts and Enforcement Act 2007 states;
(4)A controlled goods agreement is an agreement under which the debtor—
(a)is permitted to retain custody of the goods,
(b)acknowledges that the enforcement agent is taking control of them, and
(c)agrees not to remove or dispose of them, nor to permit anyone else to, before the debt is paid.
Regulation 15 of the Taking Control of Goods Regulations 2013 states;
15.—(1) This regulation applies where a controlled goods agreement is entered into under paragraph 13(1)(d) of Schedule 12.
(2) The agreement must be in writing and signed by the enforcement agent and—
(b)the person authorised by the debtor in accordance with regulation 14(1)(b); or
(c)the person in apparent authority in accordance with regulation 14(1)(c).
(3) The agreement must contain the following information—
(a)the name and address of the debtor;
(b)the reference number or numbers and the date of the agreement;
(c)the names of the persons entering into the agreement;
(d)a contact telephone number and address at which, and the days on which and the hours between which the enforcement agent or the enforcement agent’s office may be contacted;
(e)a list of the goods of which control has been taken with a description to enable the debtor to identify the goods correctly, including, where applicable—
(i)the manufacturer, model and serial number of the goods;
(ii)in the case of a vehicle, the manufacturer, model, colour and registration mark of the vehicle; and
(iii)the material, colour and usage, and (where appropriate) any other identifying characteristic of the goods; and
(f)the terms of the arrangement entered into between the enforcement agent and the debtor for the repayment, by the debtor, of the sum outstanding.
(4) At the time of entering into the agreement, the enforcement agent must give a copy of the signed agreement to the person who signed it under paragraph (2).
(5) Where the enforcement agent enters into the agreement with a person authorised by the debtor in accordance with regulation 14(1)(b) or with a person in apparent authority in accordance with regulation 14(1)(c), the enforcement agent must also provide the debtor with a copy of the signed agreement by—
(a)leaving it in a conspicuous place on the relevant or specified premises, where the enforcement agent has taken control of the goods on such premises; or
(b)delivering it to any relevant premises, in a sealed envelope addressed to the debtor, where the enforcement agent has taken control of the goods on a highway.
(6) Where the enforcement agent leaves a copy of the agreement in a conspicuous place on the relevant or specified premises under paragraph (5)(a) and the enforcement agent knows that a person other than the debtor is on the premises or that there are other occupiers, the copy must be left in a sealed envelope addressed to the debtor.
(7) Paragraph (3)(e) is complied with if—
(a)the enforcement agent provides the debtor with a list of goods of which control has been taken under regulation 30(2)(f)(i) or regulation 33(1)(e) at the same time as entering into the controlled goods agreement; and
(b)the goods of which control has been taken are the same as those referred to in the list mentioned in sub-paragraph (a).
If the agreement is not compliant with the above
The enforcement is in breach of Paragraph 13(4) of Schedule 12 of the Tribunals Courts and Enforcement Act 2007 and the debtor can bring an action under paragraph 66 of Schedule 12 of the Tribunals Courts and Enforcement Act 2007, which states;
66(1)This paragraph applies where an enforcement agent—
(a)breaches a provision of this Schedule, or
(b)acts under an enforcement power under a writ, warrant, liability order or other instrument that is defective.
(2)The breach or defect does not make the enforcement agent, or a person he is acting for, a trespasser.
(3)But the debtor may bring proceedings under this paragraph.
(4)Subject to rules of court, the proceedings may be brought—
(a)in the High Court, in relation to an enforcement power under a writ of the High Court;
(b)in a county court, in relation to an enforcement power under a warrant issued by a county court;
(c)in any other case, in the High Court or a county court.
(5)In the proceedings the court may—
(a)order goods to be returned to the debtor;
(b)order the enforcement agent or a related party to pay damages in respect of loss suffered by the debtor as a result of the breach or of anything done under the defective instrument.
(6)A related party is either of the following (if different from the enforcement agent)—
(a)the person on whom the enforcement power is conferred,
(7)Sub-paragraph (5) is without prejudice to any other powers of the court.
(8)Sub-paragraph (5)(b) does not apply where the enforcement agent acted in the reasonable belief—
(a)that he was not breaching a provision of this Schedule, or
(b)(as the case may be) that the instrument was not defective.
(9)This paragraph is subject to paragraph 59 in the case of a breach of paragraph 58(3).
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