Challenge bailiff fees with a detailed court assessment

The bailiff's fees and charges are TOO HIGH

Right to a detailed assessment

When a debtor is confronted by what appear to be excessive or disproportionate bailiff fees, the law provides a clear and effective remedy. Under Civil Procedure Rule 84.16, a debtor may apply to the court for a detailed assessment of the fees and disbursements claimed by an enforcement agent. This provision ensures judicial scrutiny of enforcement costs and permits the court to determine whether the charges are lawful, proportionate, and recoverable. Regulation 16 of the Taking Control of Goods (Fees) Regulations 2014 further underpins this right and clarifies that such an application may be made where there is a dispute as to the amount of fees or disbursements.

Statutory basis for bailiff fees

The statutory scheme governing enforcement agent fees is found within the Taking Control of Goods (Fees) Regulations 2014. Regulation 3 provides that the Regulations apply only when the Schedule 12 procedure under the Tribunals, Courts and Enforcement Act 2007 is used. Consequently, where an agent fails to comply with that procedure, the statutory entitlement to recover fees does not arise. Regulation 17 further limits the recovery of fees to periods in which the enforcement power is exercisable. Fees levied after enforcement power has expired are not permitted.

Fee stages and statutory triggers

Fees are prescribed by Regulation 6 and the Schedule to the 2014 Regulations. The compliance stage fee of £75 is recoverable once the enforcement agent is instructed and the notice of enforcement has been properly given under paragraph 7 of Schedule 12. If the debtor fails to comply with the notice, the first enforcement stage is triggered, allowing a fixed fee of £190 plus 7.5 percent of any sum to be recovered in excess of £1,000. Where the debtor refuses to enter into or breaches a controlled goods agreement, a second enforcement stage fee of £495 becomes recoverable. If goods are then physically removed for sale, a further fixed fee of £525 plus 7.5 percent of sums over £1,000 may be levied as a sale stage fee. Each stage is mutually exclusive and contingent upon distinct statutory triggers as defined in Regulation 6(1)(a) to (d).

When fees cannot be charged

An enforcement agent who has not taken control of goods in accordance with paragraph 13 of Schedule 12 cannot lawfully charge the sale stage fee. Equally, an agent cannot impose the second enforcement stage fee unless the statutory preconditions have been satisfied. It is not uncommon for agents to charge for stages in advance, or concurrently, or where no lawful basis exists. This constitutes a breach of the statutory scheme and renders the fees irrecoverable.

Disbursements and proof of expenses

In addition to the fixed fees, enforcement agents may claim disbursements for actual expenses reasonably and necessarily incurred. These may include costs of storage, transportation, and auction. However, the burden rests upon the agent to prove the disbursements were incurred. The debtor is entitled to demand documentary proof of any such expenses, including contracts and invoices evidencing the flow of money. This demand is particularly important where storage charges are claimed without any removal having taken place.

VAT and unlawful recovery

The issue of value added tax arises frequently in enforcement proceedings. As clarified in the case of Davenport v Edgoose, decided by Master Fontaine in the High Court on 6 July 2020, enforcement agents may not recover VAT from the debtor unless the underlying creditor is not VAT registered and the VAT is chargeable under standard HMRC rules. HMRC internal manual VBNB41720 affirms that VAT is generally payable only by the creditor and is not recoverable from the debtor unless there is a specific lawful basis to do so. Where VAT has been added to fees by a company or individual who is not VAT registered, such charges are unlawful. Verification of VAT registration can be made via the HMRC public register.

Who may lawfully recover fees

Bailiff companies, if incorporated as limited entities, cannot themselves recover enforcement fees. Regulation 3 of the 2014 Regulations permits only individuals holding a valid enforcement agent certificate under section 63 of the 2007 Act to recover statutory fees. Companies that are not enforcement agents as defined in law may not claim fees in their own right.

Pre-action step and creditor liability

Before initiating proceedings, a debtor is advised to write to the bailiff company requesting a complete statement of account, including the dates and amounts of all fees, the basis for each charge, and any disbursements. Arithmetic errors are common. If the agent refuses to correct the account or refuses to refund overcharges, the debtor may then apply to the court for a detailed assessment. The application is normally made against the creditor, not the enforcement agent, in accordance with the decision in Burton v Ministry of Justice [2024] EWCA Civ 681. The court may order the creditor to pay the debtor’s costs of the application where overcharging is found.

Grounds for challenging fees

A debtor may challenge fees on the basis of miscalculated percentage charges, charging for stages not triggered, charging more than one enforcement stage fee at the same time, charging after enforcement power has ceased, charging when goods were not taken into control, charging VAT unlawfully, or charging any amount contrary to the statutory limits. Challenges may also be brought where the enforcement was non-compliant with Schedule 12, including service defects, wrongful attendance, enforcement at an incorrect address, or breaches relating to vulnerable debtors.

Conclusion

In conclusion, the statutory framework is designed to protect the debtor from excessive and unlawful enforcement charges. The remedy of detailed assessment ensures transparency and judicial oversight, and debtors should not hesitate to invoke it when overcharging occurs. The law, when properly applied, is firmly on the side of fairness and proportionality.