Bailiff enforcement after 12 months is unlawful

Enforcement of debts over 12 months old

Where a debt is more than 12 months old and enforcement is attempted by bailiffs, it is of paramount importance to distinguish between the validity of the underlying debt and the time-limited nature of the enforcement power exercised under it. The statutory framework governing enforcement by taking control of goods is contained within Schedule 12 to the Tribunals, Courts and Enforcement Act 2007, and the Taking Control of Goods Regulations 2013. The courts have been clear that these provisions must be applied strictly, and failure to do so renders any enforcement step unlawful and liable to be set aside with an entitlement to remedies including damages, injunctions, and costs.

Expiry of the notice of enforcement

Under regulation 9(1) of the Taking Control of Goods Regulations 2013, a Notice of Enforcement remains valid for a period of 12 months from the date of the notice. That regulation states expressly that the enforcement agent may not take control of the debtor’s goods after the expiry of that 12-month period, save where the period is extended under regulation 9(3), which requires a specific application to the court. In the absence of such an extension, enforcement actions taken beyond that date are ultra vires and without lawful effect.

Effect on goods bound by enforcement

The statutory effect of this expiration is set out in paragraph 4(4) of Schedule 12 to the Tribunals, Courts and Enforcement Act 2007, which provides that the property in goods ceases to be bound when the enforcement power is no longer exercisable. This is reinforced by paragraph 6(3)(b) of Schedule 12, which confirms that the binding of goods ends when the instrument under which the power is exercisable ceases to have effect. Consequently, the mere fact that a debt remains unpaid does not sustain the power of enforcement beyond its statutory lifespan.

Effect of a stale writ of control

Where the enforcement power is exercised by way of a writ of control, the relevant 12-month period runs from the date of issue of the writ to the enforcement agent, not from the date of the Notice of Enforcement. This is expressly provided for by paragraph 4(2) of Schedule 12, read together with CPR 83.3(3), which stipulates that the writ ceases to bind the debtor’s goods 12 months after its issue to the enforcement agent unless renewed by court order. It follows that any enforcement step taken under a stale writ is void and the agent may be subject to legal action.

Remedies for unlawful enforcement

In circumstances where bailiffs take control of goods or clamp vehicles after the expiry of the statutory period, the debtor may seek relief under section 3 of the Torts (Interference with Goods) Act 1977, which provides for damages for wrongful interference. Alternatively, where the goods remain detained, the debtor may apply for an injunction under section 4 of the same Act, requiring the return or release of the goods. These remedies are not merely discretionary but are available as of right where the enforcement agent has acted unlawfully.

Statutory claim for breach of enforcement law

Further, paragraph 66 of Schedule 12 provides a specific cause of action where an enforcement agent has breached the Schedule or acted under an instrument that is defective. Sub-paragraph (3) allows the debtor to bring proceedings notwithstanding that the enforcement agent is not a trespasser. This remedy has been successfully invoked in claims for damages, restitution, and declaratory relief where enforcement has continued beyond the expiry of lawful authority.

Practical remedies and legal action

The practical remedy in each case depends on the circumstances of the enforcement step. Where a vehicle is clamped or goods seized beyond the statutory period, the debtor should demand immediate release and, if refused, apply to the County Court for an injunction supported by a witness statement setting out the relevant dates and breaches. The debtor may also seek a detailed assessment of any enforcement costs claimed under CPR 84.16 and CPR Part 44, particularly where the fees include sums not lawfully chargeable due to the expiry of the enforcement power. Costs may be sought under CPR 44.3 and, where acting as a litigant in person, under CPR 46.5.

Conclusion and recommended actions

A prudent course of action requires the debtor to ascertain the date of the Notice of Enforcement and the date the enforcement power was first exercised. Any doubt as to the lawfulness of enforcement beyond the 12-month period should be met with a formal objection, a claim for damages, and if necessary, an application for declaratory relief. The statutory framework leaves no room for interpretation on this issue. Time limits are mandatory, and any enforcement beyond the prescribed period is unlawful and actionable.