Wrong name on bailiff writ? Stop enforcement now

What to do if your name or company name is spelled incorrectly on a bailiff's document

Enforcement action must be directed only at the named debtor

It is a fundamental principle of enforcement law that an enforcement agent may take control of goods only where those goods belong to the person named as the debtor in the relevant enforcement instrument. This proposition is firmly rooted in Paragraph 10 of Schedule 12 to the Tribunals, Courts and Enforcement Act 2007. Accordingly, if the name on a writ of control or other enforcement document is materially incorrect, whether by misspelling the individual’s name or wrongly identifying a company, it may render the instrument defective and thereby invalidate any enforcement action taken pursuant to it.

The court's power to amend a name on an order or writ

The court retains jurisdiction to permit the amendment of a party's name in order to correct a genuine and harmless mistake. Under Civil Procedure Rule 40.12 and paragraphs 4.1 to 4.5 of Practice Direction 40B, the court may, at any time, correct accidental slips or omissions in judgments or orders. Applications for such corrections may be made without notice. However, Practice Direction 40B at paragraph 4.4 also makes clear that where the correction would adversely affect another party, that party has a right to be heard in opposition. In particular, where a party's name is being amended post-judgment or post-issue of a writ, the court must be satisfied that the amendment does not cause reasonable doubt as to the identity of the party against whom enforcement is sought. This is consistent with the wording of Civil Procedure Rule 17.4(3), which governs the amendment of parties' names.

The right to resist enforcement on a defective writ

Where a person is not the debtor named in the writ of control and is nevertheless subject to enforcement action, that individual is entitled to demand the immediate cessation of enforcement. If a bailiff arrives at a property and the documents contain a misspelt or incorrect name, the correct course of action is to require the bailiff to withdraw until the name has been formally corrected by the court. Any attempt by the enforcement agent to proceed regardless of the defective name may constitute unlawful enforcement, potentially giving rise to a claim in tort or under statute.

Statutory remedies for third parties

In the case of a third party being wrongfully targeted, there exists a statutory procedure to contest the enforcement. Under Paragraph 60 of Schedule 12, any third party from whom goods have been taken may apply to the court within seven days for the return of the goods or money taken. Should more than seven days have elapsed, the third party may instead rely upon sections 3 and 4 of the Torts (Interference with Goods) Act 1977 to bring a claim for damages, delivery up, or an injunction to prevent further wrongful interference. Moreover, the third party is entitled to apply for recovery of costs.

Banking remedies through chargeback

There is also the practical remedy of initiating a chargeback through the relevant banking provider. Where payment has been made under duress and the name on the enforcement instrument does not correspond to that of the account holder, the enforcement agent may find it difficult to justify the retention of the funds. In such circumstances, the bank may return the funds to the customer unless the enforcement agent can adduce satisfactory evidence that the account holder was indeed the named debtor.

Enforcement against directors at home

In cases where the writ is in the name of a limited company and a bailiff seeks to enforce against a company director at their residential address, the position is equally clear. Directors are not personally liable for company debts absent a personal guarantee. Paragraph 14(6) of Schedule 12 stipulates that enforcement agents may only take control of goods at premises from which the company carries on its business. Furthermore, Paragraph 15 of the same Schedule requires that where an enforcement agent seeks to enter premises not specified in the writ, they must first obtain a court order authorising entry to those additional premises. Where a director’s home address is targeted without such authority, the enforcement is unlawful, and the director may seek redress accordingly.

Statutory declarations to protect a director's home

In addition to the procedural safeguards noted above, the director may make a statutory declaration confirming that the debtor company does not trade or store goods at the residential premises. While such a declaration does not of itself invalidate the writ, it prevents future enforcement actions at that address absent further judicial intervention.

Harassment by enforcement agents

Where an enforcement agent harasses or pesters an individual at their home address, particularly where the enforcement is known to be defective, remedies are also available under the Protection from Harassment Act 1997. Section 3 of the Act allows the victim to apply for an injunction prohibiting the conduct and, in appropriate cases, to claim damages for anxiety or financial loss resulting from the harassment.

Enforcement proceedings under paragraph 66 of schedule 12

Moreover, where an enforcement agent acts upon a defective instrument or in breach of Schedule 12 provisions, Paragraph 66 of Schedule 12 permits the aggrieved party to bring proceedings for redress. Under this provision, the court may order the return of goods or money taken and award damages against either the enforcement agent, the creditor, or the person on whom the enforcement power was conferred. However, such relief will not be granted where the agent acted in the reasonable belief that the instrument was not defective or that they were acting lawfully.

Remain vigilant against phishing and invalid enforcement

It is prudent in all such cases to exercise vigilance. A document bearing a materially incorrect name may, in some instances, be a phishing device rather than a lawful court document. The individual should insist upon full documentary proof of the writ or warrant, and verify the details with the issuing court or authority before taking further steps. If doubt arises, a formal complaint should be lodged with the creditor and enforcement temporarily suspended pending clarification.

Summary of remedies and conclusion

In conclusion, where the name or corporate identity on an enforcement document is incorrect, the enforcement agent is acting without valid authority in targeting the affected individual or premises. The remedies available include resisting entry and removal, filing a third-party claim, seeking declaratory or injunctive relief, reclaiming funds via chargeback, and pursuing damages for any resulting losses. All such steps should be taken promptly and with due care, invoking the relevant statutory and procedural provisions as appropriate to the facts.