Bailiff refused to show writ of control? Know your rights

The Legal Consequences of a Bailiff Refusing to Show a Writ of Control

Statutory duty to show the writ of control

When a bailiff refuses to show a writ of control upon request, he acts unlawfully and outside the parameters of his statutory authority. Paragraph 26(1)(b) of Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 imposes a mandatory duty on an enforcement agent to show evidence of his authority to enter the premises when requested by the debtor or by any person who appears to be in charge. That evidence, in High Court matters, is the sealed Writ of Control issued by the court. The language of the statute admits of no discretion. The obligation arises at the time of the request, whether before entry or while the agent is on the premises, pursuant to paragraph 26(2). A failure to comply with that request is a breach of the statutory scheme and renders any purported enforcement unlawful.

Effect of failure to comply with the request

In such circumstances, the enforcement agent is no longer acting in the lawful execution of his duty, and may be removed from the premises without any offence being committed under section 68 of the same Schedule. Where the enforcement agent refuses to show the writ, it is often because the document is defective, perhaps it bears the wrong address, has expired, contains a misspelling of the debtor’s name, or was issued irregularly. Alternatively, there may be no valid writ at all. In either case, the concealment or refusal is almost always indicative of knowledge on the agent’s part that the authority he purports to exercise is invalid or questionable.

Right of redress under paragraph 66

Such refusal to disclose a writ constitutes a breach for which the debtor has a right of redress under paragraph 66 of Schedule 12. That provision permits the debtor to bring proceedings where an enforcement agent has either breached any provision of Schedule 12 or has acted under a defective instrument. The court is empowered under paragraph 66(5) to order the return of goods, to award damages for losses sustained, and to make further orders it considers appropriate. The action may be brought in the High Court if the instrument is a High Court writ or otherwise in the county court. Although sub-paragraph 66(8) provides that damages are not to be awarded where the agent acted in the reasonable belief that he was not breaching the Schedule or that the instrument was not defective, that is a matter for the court's determination and does not protect an agent acting recklessly or with wilful disregard for statutory compliance.

Consequences for fees and recovery

The failure to show a writ not only defeats the underlying authority of the agent to be present on the premises but also invalidates any fees claimed under the Taking Control of Goods (Fees) Regulations 2014. Regulation 3 of those Regulations makes clear that they apply only when the agent lawfully uses the Schedule 12 procedure. Where there has been a breach of paragraph 26, no lawful procedure has been engaged, and therefore no fees are payable. Any fees taken may be reclaimed by the debtor through a process of detailed assessment under Part 47 of the Civil Procedure Rules or alternatively by way of restitutionary claim under the common law.

Improper display of identification

It should be further noted that a bailiff who merely flashes a body-worn camera or a badge with a company logo is not satisfying the requirements of paragraph 26. Such items do not constitute legal authority to be on the premises or to take control of goods. Indeed, where the agent misleads the debtor by displaying what is not in fact a court-issued warrant or writ, questions may arise under section 7 of the Fraud Act 2006, which criminalises the making or use of a false instrument with intent to induce another to accept it as genuine.

Misrepresentation of police authority

If the enforcement agent impersonates a police officer or presents himself in a manner calculated to suggest he has police powers, he may also be committing an offence under section 90 of the Police Act 1996, which makes it a criminal offence to impersonate a constable. Bailiffs are not police officers, and must not conduct themselves in a manner that falsely suggests otherwise.

Bodycam footage and data requests

A bailiff who purports to enforce a court order yet refuses to display the relevant court authority is not acting in good faith. If the refusal occurs while the agent is wearing a body-worn camera, the debtor should immediately make a data subject access request for a copy of the footage under the Data Protection Act 2018. Should the enforcement company refuse to disclose that footage, the court may draw adverse inferences and strike out any subsequent defence, particularly where the footage is material to the lawfulness of the visit.

Post-event disclosure does not cure the defect

In circumstances where the agent later produces a writ after the visit, that does not cure the defect. Paragraph 26 requires that the authority be shown at the time of the request. A post hoc attempt to regularise unlawful conduct cannot render it lawful retrospectively. As held in Director of Public Prosecutions v Hutchinson [1990] 2 AC 783, legal authority must exist at the time of the act, it cannot be made good after the event.

Remedies available to the debtor

In terms of remedies, a debtor faced with such a breach has multiple avenues. First, an immediate application may be made to the issuing court to suspend or set aside the writ under CPR rule 83.2 and CPR rule 3.1(2)(f). Secondly, if goods have been taken or money paid under protest, proceedings may be brought under paragraph 66 of Schedule 12 seeking restitution, return of goods, and damages. Thirdly, nothing will be achieved by the debtor complaining to the High Court Enforcement Officers Association or CIVEA, they have no legal standing or statutory power.

Conclusion and right to act

In summary, the refusal by a bailiff to show a writ of control upon request is a serious and actionable breach of statutory duty under paragraph 26 of Schedule 12. It undermines the entire enforcement process, renders the action unlawful, vitiates any claim for fees, and entitles the debtor to seek immediate relief including the return of property and recovery of damages. Where the conduct is egregious or repeated, the matter may be brought to the attention of the court with a request for an injunction or a declaration as to the lawfulness of the enforcement. The courts have repeatedly emphasised the need for strict compliance with enforcement procedures, particularly where they infringe the property rights of individuals. A debtor who is wrongly subjected to such enforcement is not without remedy and should act promptly to vindicate those rights.