Stop High Court bailiff enforcement for unknown judgment

Challenging Bailiff Enforcement on Unknown Judgment Debts

The attendance of a High Court Enforcement Agent (HCEA), commonly referred to as a bailiff, concerning a judgment debt of which you had no prior knowledge, raises substantial legal grounds for challenge and remedy. Central to this challenge is paragraph 7(1) of Schedule 12 to the Tribunals, Courts and Enforcement Act 2007, which explicitly provides that before any enforcement action may be lawfully commenced, the debtor must first receive a valid Notice of Enforcement. This statutory requirement serves a fundamental principle of natural justice, ensuring a debtor is given fair warning and the opportunity to address the debt before coercive action is taken.

Failure to give notice of enforcement

It has come to attention that Debt Collection Bailiffs Limited (DCBL), among others, routinely fail in their statutory obligation to issue Notices of Enforcement, thereby gaining a financial advantage by proceeding directly to enforcement, bypassing the debtor's opportunity to respond. This practice is manifestly unlawful and provides immediate grounds to contest enforcement.

The effect of a defective address on the writ

Furthermore, an erroneous address on the Writ of Control renders it defective. A Writ bearing an incorrect address materially breaches paragraph 7(1) of Schedule 12 of the 2007 Act, and thus constitutes a defective instrument. Under paragraph 66 of Schedule 12, the debtor possesses the unequivocal right to bring proceedings for damages arising from enforcement under such defective instruments. The defective address provides evidential proof that proper notice was not, and could not have been, lawfully served. Moreover, Section 7 of the Interpretation Act 1978, whilst presuming postal service, explicitly permits rebuttal of this presumption where evidence indicates contrary facts. Clearly, an incorrect address is sufficient evidence to displace any presumption of effective postal service.

Legal remedies to stop enforcement and set aside judgment

Practically, the debtor confronted with an unknown judgment debt has several robust legal remedies to halt enforcement action and remove any adverse consequences already incurred. Primarily, an application under Civil Procedure Rule 23.10 can be advanced to stay enforcement and set aside the judgment, particularly effective when the debtor has acted promptly upon discovery of the judgment. In applying to set aside under CPR 13.3, three elements must be clearly demonstrated: first, that the debtor was unaware of the judgment; second, that they acted with reasonable expedition once aware; and third, that a substantive defence or genuine grounds to dispute the underlying claim exist. Upon satisfaction of these criteria, courts typically exercise their discretion to set aside judgments and stay execution forthwith, extinguishing any attendant enforcement fees.

Procedure for applying to stay the writ

Procedurally, the application is initiated using Form N244 accompanied by a concise witness statement detailing the absence of notice, incorrect address on the writ, and any other relevant defences, alongside a draft order for the court's convenience. Filing occurs either at the issuing High Court District Registry or the Royal Courts of Justice, Strand, London. A modest court fee, presently around £100, is applicable; however, remission of fees is available under the Civil Proceedings Fees Order 2008 for applicants on limited incomes, completed via an online fee remission application.

The effect of a successful application

Upon the granting of an order staying the writ and setting aside the judgment, it is imperative immediately to serve a sealed copy of the order upon the enforcement agents. From that moment, all enforcement activity must cease by virtue of CPR 83.7(4), and crucially, all previously imposed bailiff fees become void and recoverable. Should the bailiff refuse repayment of fees already collected, a subsequent detailed assessment application under CPR 84.16 will secure recovery and potentially award additional legal costs against the bailiff company.

Applying to vary the judgment

In cases where the judgment is accepted but financial circumstances necessitate adjustments, an alternative remedy is to apply for a variation of the judgment and stay enforcement simultaneously. This involves completion of form N245, a detailed statement of income and expenditure. The court will typically suspend enforcement pending affordable payment terms, removing the bailiff's immediate power to act and revoking any fees not already enforced.

Challenging the bailiff’s fees

Separately, in situations where there are concerns regarding the accuracy or proportionality of the fees charged by enforcement agents, a detailed assessment of fees under CPR 84.16 is warranted. Grounds frequently relied upon include duplicated enforcement stage fees, erroneous application of VAT, invalid or nonexistent notices, the presence of vulnerability, wrongful levying of sale stage fees, or defects in the writ itself. Successful detailed assessment invariably leads to recovery of wrongly levied fees and the payment of the debtor's legal costs by the bailiff firm.

Paying the creditor directly

Direct payment to the creditor also terminates enforcement powers under paragraph 58 of Schedule 12, which extinguishes the bailiff's ability to levy for fees post-settlement. National Standards for Enforcement Agents 2014, paragraph 31, affirms unequivocally that enforcement agents must cease action once their enforcement power lapses. To safely avail oneself of this remedy, payment must be by cheque directly to the creditor, excluding bailiff fees, with comprehensive documentation including photographs, postal tracking, and immediate notification to the bailiff company. This meticulous procedure prevents disputes and safeguards against allegations of fee evasion or backdated attendances, which would otherwise constitute serious breaches and potential fraud under sections 1 to 5 of the Fraud Act 2006.

Other enforcement defects and broader remedies

Finally, in circumstances where the underlying judgment or enforcement mechanism lacks compliance with statutory procedure particularly where transfer of judgment to the High Court is defective or the judgment debtor resides or works abroad, is a vulnerable individual, or the debtor is a corporate entity at risk of winding up the remedies available are correspondingly expansive and must be tailored to the specifics of the enforcement breach identified.

Conclusion

In conclusion, the failure to give notice under paragraph 7(1), an incorrect address rendering the Writ defective, and improper procedural conduct by enforcement agents provide clear grounds for immediately challenging and halting unlawful enforcement. Prompt action to stay execution and set aside or vary judgments, supported by detailed assessment applications and direct creditor payments, represent authoritative and effective remedies. These measures robustly uphold fundamental statutory protections, ensuring enforcement agents comply fully with their legal obligations, and safeguarding debtors from the severe injustice of enforcement actions predicated upon defective and improperly served writs.