June 12, 2019 at 1:31 pm #22331AdministratorKeymaster
If the bailiff has not taken control of goods and fails to show evidence of his right to enter the premises, he must leave with all due reasonable speed when the debtor or other person in charge of the property tells him to leave. Failure to comply can bring a claim for damages for breach of Paragraph 26 of Schedule 12 of the Tribunals Courts and Enforcement Act 2007. If the debtor does not live or trade at the address, the bailiff is liable in a trespass action brought by the person in charge of the property.
Bailiffs are about to visit you – Give the “Notice to Produce, and Notice to Leave”
The Notice to Produce
Paragraph 26 of Schedule 12 of the Tribunals Courts and Enforcement Act 2007 states;
26(1)The enforcement agent must on request show the debtor and any person who appears to him to be in charge of the premises evidence of—
(a)his identity, and
(b)his authority to enter the premises.
(2)The request may be made before the enforcement agent enters the premises or while he is there.
The bailiff must produce his bailiffs certificate because that is his ID
He must produce the warrant or writ because that is the authority to enter premises. Failure to do so can revoke the enforcment because it is a breach of the Schedule 12 procedure.
The Notice to Leave
Section 6 of the Human Rights Act 1998 states;
6 Acts of public authorities.
(1)It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2)Subsection (1) does not apply to an act if—
(a)as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b)in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3)In this section “public authority” includes—
(a)a court or tribunal, and
(b)any person certain of whose functions are functions of a public nature,
Article 1 of the European Convention on Human Rights states;
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.
Paragraph 28 of the Taking Control of Goods: National Standards 2014 states;
Enforcement agents must act in accordance with the Human Rights Act 1998 and the Equality Act 2010. They must not discriminate unfairly on any grounds including those of age, disability, ethnicity, gender, race, religion or sexual orientation.
When the bailiff attends – get everything on video
Attach a lanyard to your mobile phone and wear it around your neck with the camera facing outwards.
Configure your Dropbox or other cloud storage service to capture the live video footage. That prevents the evidence from being seized as it is recorded off-site and captures the thief trying to snatch the phone and trying to delete the evidence.
A bailiff snatching an item in this way is contrary to regulation 10(2) of the Taking Control of Goods Regulations 2013 and potentially revokes everything that follows.
Try to record the bailiff covertly so he does not know he is being filmed.
Regulation 45(7) of the Council Tax (Administration and Enforcement) Regulations 1992 excludes bailiffs levying distress from committing trespass.
However, if there is an irregularity with the debt or conduct of the bailiff, the debtor can claim special damages in trespass proceedings or a claim in the small claims court.
Use the Council Tax enforcement compliance checklist to see if there is an irregularity.
Magistrate’s Court fines
It is the practice of bailiffs to use fake warrants. These are not authority to enter premises.
If entry is made using a fake warrant then action can be brought 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.
If a bailiff refuses to leave the property after being requested to do so or is trying to force entry, you can call police on 999.
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