June 12, 2019 at 12:58 pm #22309AdministratorKeymaster
Enforcement fails. The law says the debtor must be given a valuation before the goods are sold. You can sue for the replacement cost of the goods. The law says valuations can be independent, or the bailiff can just make one up. The most irrefutable valuation is written by the dealer principal at a franchised dealership for the vehicle’s manufacturer. You can get quick valuations by searching eBay completed sold listings for the same model and condition of the vehicle.
our vehicle has been sold, but the bailiff did not give a valuation or enable you to get one
Enforcement fails because the enforcement agent has breached Paragraph 36 of Schedule 12 of the Tribunals Courts and Enforcement Act 2007 (TCEA 2007). You can sue for damages by bringing an action under Paragraph 66 of Schedule 12 of the TCEA 2007.
Paragraph 36 of Schedule 12 of the TCEA 2007 states:
36(1)Before the end of the minimum period, the enforcement agent must—
(a)make or obtain a valuation of the controlled goods in accordance with regulations;
(b)give the debtor, and separately any co-owner, an opportunity to obtain an independent valuation of the goods.
(2)In this paragraph “minimum period” means the period specified by regulations under—
(a)paragraph 49, in the case of securities;
(b)paragraph 39, in any other case.
Regulation 35 of the Taking Control of Goods Regulations 2013 states:
Valuation of controlled goods
35.—(1) This regulation applies where an enforcement agent makes (paragraph (2)) or obtains (paragraph (3)) a valuation of controlled goods as required by paragraph 36(1) of Schedule 12.
(2) Where the enforcement agent makes the valuation—
(a)the valuation must be in writing, signed by the enforcement agent and set out—
(i)the enforcement agent’s name, the reference number or numbers and the date of the valuation; and
(ii)where appropriate, a separate value for each item of goods of which control has been taken; and
(b)the enforcement agent must provide a copy of the written valuation, once made, to the debtor and any co-owner.
(3) Where the enforcement agent obtains the valuation the enforcement agent must—
(a)only instruct a qualified, independent valuer;
(b)instruct the valuer to make a written valuation and, where appropriate, to value each item of goods separately; and
(c)provide a copy of the written valuation, once made by the valuer, to the debtor and any co-owner.
If you were not given a valuation, or not given an opportunity to get one, then enforcement fails on breach of Paragraph 36 of Schedule 12 of the TCEA 2007 in the small claims court. You plead a cause of action under Paragraph 66 of Schedule 12 of the TCEA 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 the county court, in relation to an enforcement power under a warrant issued by the county court;
(c)in any other case, in the High Court or the 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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