Bailiff acted without notice? Your rights explained

Enforcement Invalid Without Notice of Enforcement

In accordance with the law of England and Wales, an enforcement agent, colloquially known as a bailiff, may not lawfully take control of goods unless the debtor has been given a valid Notice of Enforcement. This principle is firmly enshrined in paragraph 7(1) of Schedule 12 to the Tribunals, Courts and Enforcement Act 2007, which stipulates in unequivocal terms that an enforcement agent may not take control of goods unless the debtor has been given notice. The procedural form and substance of that notice are further governed by the Taking Control of Goods Regulations 2013. Regulation 6(1) of those Regulations mandates that a minimum period of seven clear days must elapse after service of the Notice of Enforcement before any enforcement action may lawfully be taken. Sundays, Bank Holidays, Good Friday, and Christmas Day are to be excluded from this computation under Regulation 6(2).

Purpose of the notice requirement

The rationale underlying these provisions is the protection of the debtor’s rights and the guarantee of due process. A properly served Notice of Enforcement allows the debtor an opportunity to respond, to pay voluntarily, or to challenge the enforcement before the potentially severe step of seizure is undertaken. Where a bailiff proceeds without first giving a compliant notice, any purported taking control of goods is rendered unlawful. The bailiff thereby acts in breach of Schedule 12 and incurs liability under paragraph 66 of that Schedule. This paragraph confers on the debtor the right to bring proceedings in the County Court or High Court and to seek, amongst other remedies, the return of goods or payment of damages. Under sub-paragraph 5(b), damages are recoverable in respect of loss suffered as a result of the breach or anything done under a defective instrument.

Service to outdated addresses

It is commonplace for certain enforcement companies to circumvent these statutory obligations, particularly where the enforcement address on the writ, warrant, or liability order is no longer current. In such cases, the enforcement agent may engage in tracing and attend a new address without reissuing a Notice of Enforcement. This renders the entire process defective. Service to an outdated address, particularly one at which the debtor no longer resides or trades, cannot cure the defect. Service must be effective and compliant with Regulation 8 of the 2013 Regulations, which permits service by post to an address where the debtor usually lives or carries on business. The burden rests on the enforcement agent to demonstrate compliance.

Proof of service and evidentiary obligations

Where the bailiff has failed to provide a Notice of Enforcement altogether, or cannot show when the notice was entered into the postal system, the debtor may rightly challenge the enforcement action. Section 7 of the Interpretation Act 1978 provides that service by post is deemed effective unless the contrary is proved. A computer-generated or reconstituted copy of a Notice of Enforcement does not satisfy the requirement that the agent record the actual time of giving notice, as required by paragraph 7(3) of Schedule 12. The absence of such recordation or refusal by the bailiff to complete and return a Form N215 Certificate of Service may serve as compelling evidence that no notice was given.

Consequences for failure to serve notice

The legal consequences of failing to give a Notice of Enforcement are significant. Regulation 3 of the Taking Control of Goods (Fees) Regulations 2014 states that fees are only recoverable when the Schedule 12 procedure is properly used. In the absence of a valid notice, the bailiff is precluded from charging or retaining any enforcement fees. Where fees have already been paid, the debtor may recover them by applying to the County Court for a detailed assessment under Regulation 16 of the same Regulations. This application should be supported by a witness statement and documentary evidence setting out the failure of notice. Where vehicles have been unlawfully seized or clamped, the debtor may also apply for an injunction and bring a claim for damages under CPR 23 and CPR 31.

Improper use of ANPR and defective writs

A further persistent practice involves the use of ANPR technology to locate and seize vehicles connected to previous addresses. If the debtor was not given a Notice of Enforcement at the current address, this renders the seizure unlawful and the enforcement action void. The address mismatch not only undermines the validity of the notice, but also renders the underlying enforcement instrument defective. Pursuant to paragraph 66(1)(b) of Schedule 12, such a defect permits the debtor to bring proceedings for damages, return of goods, or other appropriate relief.

Precedent condemning lack of notice

In Rooftops South West Limited & Others v Direct Collection Bailiffs Ltd & Claire Sandbrook & Another [2018] EWHC 2798 (QB), the High Court found that DCBL had not issued a Notice of Enforcement, and their practices on the television programme “Can’t Pay? We’ll Take It Away!” prioritised dramatic effect over lawful procedure. The court accepted as a finding of fact that no notice had been given. This decision serves as a critical precedent demonstrating judicial disapproval of ambush tactics that flout statutory safeguards.

Affidavit and civil recovery procedures

Where a bailiff acts without giving a notice, or where the enforcement power is defective due to an outdated address, the debtor should file a sworn affidavit or statement of truth asserting non-service. The absence of any evidence that the notice was given, combined with a failure by the agent to provide a Certificate of Service, may suffice for the court to find non-compliance. Should the debtor wish to pursue civil recovery, a claim in the small claims track may be brought under Part 7 of the Civil Procedure Rules, supported by an application for costs under CPR 27.14 in cases of unreasonable conduct.

Final position on unlawful enforcement

In conclusion, an enforcement agent who fails to comply with paragraph 7 of Schedule 12, Regulation 6 of the 2013 Regulations, and Regulation 3 of the 2014 Fee Regulations acts unlawfully. The debtor is entitled to have the enforcement declared void, to recover unlawfully imposed fees, and where appropriate, to seek injunctive relief, return of goods, and damages. The agent's conduct is either compliant with Schedule 12 or it is not. If it is not, no fees are payable and every step taken thereafter is vulnerable to legal challenge.