Bailiff enforced after stay application? Claim damages now

Prohibition of Bailiff Enforcement After Application to Set Aside, Stay, or Suspend a Writ of Control

The power of the court to stay execution of a writ of control is set out in Civil Procedure Rule 83.7. A debtor may apply for a stay at the time judgment is given or at any time thereafter. The court has discretion to stay execution absolutely or conditionally if satisfied there are special circumstances or an inability to pay. While CPR 83.7 does not impose an automatic stay upon the filing of such an application, where the enforcement agent has been given clear notice that an application has been issued and is pending determination by the court, any continuation or attempt at enforcement before the court has ruled may be unlawful. Proceeding in those circumstances may amount to oppressive conduct, misuse of statutory power, or an abuse of process. It may give rise to a claim for damages, including aggravated or exemplary damages under the principles in Rookes v Barnard [1964] AC 1129, and potential relief under common law and statute, including the Tribunals, Courts and Enforcement Act 2007 and the Taking Control of Goods Regulations 2013.

Immediate stay and judicial affirmation

The principle that enforcement officers must act strictly within the statutory framework governing writs of control was reinforced in Just Digital Marketplace Ltd v High Court Enforcement Officers Association [2021] EWHC 15 (QB), where Master McCloud affirmed that the powers of enforcement agents under Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 must not be exercised in a manner that exceeds or circumvents their express statutory limits. Although the case concerned the validity of remote Controlled Goods Agreements, it underscores that enforcement action conducted without full compliance with statutory procedure may be unlawful. This supports the position that where an application to stay execution under CPR 83.7 has been filed and the enforcement officer is made aware of it, proceeding with enforcement before judicial determination may amount to an abuse of process. Further judicial support for the unlawfulness of procedural breaches by enforcement agents is found in Riaz v Ashwood Solicitors Ltd [2018] EWCA Civ 1640, where the Court of Appeal confirmed that such conduct may give rise to an actionable claim in damages.

Wrongful interference with goods and legal remedies

Moreover, enforcement activity carried out in breach of procedural safeguards may constitute wrongful interference with goods within the meaning of section 3 of the Torts (Interference with Goods) Act 1977. Section 3 permits a claim for interference where goods are unlawfully seized, removed, retained, or sold in contravention of statutory or procedural requirements. Where an application to stay execution has been filed and the enforcement agent proceeds despite being on notice of that application, such conduct may amount to unlawful execution and give rise to a cause of action for damages under both statute and common law.

Liability of enforcement officers and instructing creditors

Consequently, a claimant subject to such wrongful enforcement activity may pursue a claim for damages against the responsible High Court Enforcement Officer, and, where appropriate, the instructing creditor. Where the enforcement officer proceeds after being notified that an application to stay execution under CPR 83.7 has been filed and is pending determination, such conduct may amount to unlawful interference with goods or an abuse of process. If it can be shown that the creditor was aware of the pending application and either encouraged or permitted the enforcement to proceed regardless, the creditor may also be liable and properly joined as a defendant to the claim.

Procedural steps and preparation of claim

Procedurally, a claimant should issue proceedings under CPR Part 7, setting out that an application to stay execution under CPR 83.7 was filed and the enforcement officer was notified. The particulars should identify the enforcement acts that followed, the goods interfered with, and the resulting losses. Liability should be clearly pleaded against the officer and, if applicable, the instructing creditor who permitted or encouraged enforcement despite the pending application.

Compliance with pre-action protocol

Before commencing proceedings, the claimant should follow the Pre-Action Protocol under CPR Practice Direction – Pre-Action Conduct by sending a clear and detailed letter to the enforcement officer and, where appropriate, the creditor. The letter should set out the factual basis of the claim, identify the statutory and procedural breaches relied upon, summarise the losses suffered, and state the intention to issue proceedings if the matter is not resolved. This step may help achieve early resolution or, at the very least, define the issues in dispute and reduce costs.

Key elements required for a successful claim

Ultimately, success in the claim depends upon clear and cogent proof, firstly, that an application to stay execution under CPR 83.7 was properly filed, ideally evidenced by the court’s sealed acknowledgment. Secondly, the claimant must establish that the enforcement agent had actual or constructive notice of the application. Thirdly, there must be precise evidence of any enforcement actions undertaken after that notice, including removal, seizure, or receipt of monies. Finally, the claimant must provide evidence quantifying the losses directly or consequentially resulting from the unlawful enforcement.

Available remedies and conclusion

Where these elements are persuasively demonstrated through robust documentary evidence, witness testimony, and precise citation of statutory and judicial authorities, the claimant will substantiate a compelling cause of action for damages arising from wrongful enforcement, recoverable under established principles of procedural law and statutory protections. Such a claim would be supported by CPR 83.7, Schedule 12 to the Tribunals, Courts and Enforcement Act 2007, the Taking Control of Goods Regulations 2013, and the Torts (Interference with Goods) Act 1977. A well-founded claim may result in compensatory, aggravated, or exemplary damages, depending on the nature and seriousness of the breach.