Dealing with Bailiffs

The Legal Consequences of Acting Without an Enforcement Certificate

Acting as an enforcement agent requires lawful authority

It is a fundamental principle of English law that a person purporting to exercise enforcement powers must be lawfully authorised to do so. Where such authority is absent, the purported exercise of that power is unlawful, and any act done pursuant to it is rendered void and potentially criminal. The regime governing enforcement by individuals acting as bailiffs, more properly called enforcement agents, is set out in the Tribunals, Courts and Enforcement Act 2007 and supporting regulations. Section 63(2) of the 2007 Act provides that an individual may act as an enforcement agent only if he holds a certificate under section 64, is exempt as defined by section 63(3), or is acting under the direction and in the presence of a person who meets one of those two conditions. Any person who knowingly or recklessly purports to act as an enforcement agent without such authority commits an offence under section 63(6). That offence is punishable by a fine up to level 5 on the standard scale, which in current terms may be unlimited. The matter, though often mischaracterised by law enforcement as civil in nature, is plainly criminal, and may properly be reported to the police.

Enforcement by uncertificated individuals is void

Where a person acts without a certificate, the consequences are not limited to criminality alone. All enforcement action taken is unlawful and of no effect. The proper legal remedy lies in seeking the return of any goods or money taken by issuing a claim under section 4 of the Torts (Interference with Goods) Act 1977. This provision empowers the court to order the return of goods wrongfully taken or to award damages in lieu. It is essential that the individual’s certification status is established. This can be done by consulting the Ministry of Justice’s Public Register of Certificated Enforcement Agents. If the individual’s name is absent, the register entry should be saved or printed, as it forms a critical piece of evidence. If further verification is required, parties may telephone 020 3334 6355 or email cbregister@justice.gov.uk. The suggestion, sometimes made by enforcement firms, that the public register is out of date has been discredited by Ministry of Justice officials and should be treated with caution.

Proof of authority is a statutory duty

The obligation of an enforcement agent to prove his authority is not merely an evidential courtesy but a statutory duty. Paragraph 26(1) of Schedule 12 to the 2007 Act requires that, on request, an enforcement agent must show evidence of both his identity and his authority to act. This may be demanded either before or during entry. Where the individual fails to comply or cannot provide the required certificate, he is trespassing and should be instructed to leave immediately. A bailiff certificate is a white laminated card bearing a photograph and signed by a judge. Its absence raises a serious question as to the legitimacy of any purported enforcement.

Exceptions to certification are limited

There are limited exceptions to the requirement for certification. These are set out in section 63(3) of the 2007 Act and include police constables, officers of HM Revenue and Customs, and local authority employees acting in the course of their employment. Even then, their powers are limited and derive not from the warrant alone but from the conferred status of their office. A limited company cannot itself be an enforcement agent, for section 63 makes clear that only an individual may hold a certificate. A company may act as an enforcement agency, but it cannot execute a warrant, take control of goods, or demand payment under the authority of the court or any administrative body unless the individual carrying out the act is lawfully certificated.

Legal requirements to obtain a certificate

The relevant procedural safeguards are provided by the Certification of Enforcement Agents Regulations 2014, which set out in Regulations 3, 4 and 6 the conditions a person must meet to be granted and retain a certificate. These include the requirement for the court to be satisfied that the applicant is a fit and proper person and has sufficient knowledge of the law and procedure relating to enforcement. Any certificate is issued for two years and must be renewed. It is granted by a district judge sitting in the county court and is specific to the individual. A certificate issued while working for one company remains valid should the individual transfer employment, though the bond securing it remains with the company named on the application. This may create complications where a claim is made against the bond following misconduct, but it does not invalidate the certificate itself.

Fees are only recoverable by certificated agents

The enforcement fees that may be recovered are prescribed by the Taking Control of Goods (Fees) Regulations 2014. Regulation 3 makes clear that only enforcement agents acting lawfully under a certificate may recover these charges. Where an uncertificated individual demands or collects fees, those sums are recoverable in restitution. In such cases, the debtor may apply to the court for the return of monies paid and for the setting aside of the enforcement action. Where there is evidence of systematic abuse or impersonation of enforcement authority, it is open to the aggrieved party to pursue not only civil redress but criminal complaint. Police officers who fail to investigate or act upon such complaints, particularly when the statutory offence under section 63(6) is drawn to their attention, may themselves fall into dereliction of duty. Section 26(6) of the Criminal Justice and Courts Act 2015 makes it an offence for a police constable to wilfully neglect to perform his duty. If a police officer refuses to intervene despite clear evidence of criminal conduct by a purported enforcement agent, legal advice should be taken with a view to pursuing formal complaint or private prosecution.

The absence of a certificate renders all enforcement void

Where it can be established that an individual has acted without a certificate and without exemption, and has sought to recover or has taken control of goods, that individual is a trespasser ab initio. The court will likely order the return of all goods or their value and may also award damages for trespass, interference with goods, or conversion. It is open to the injured party to seek exemplary damages where the conduct has been oppressive, arbitrary or unconstitutional. In suitable cases, the conduct may also be referred to regulatory bodies or professional disciplinary committees.

Individuals must assert their rights firmly

The law does not tolerate pretence in the execution of judicial authority. The power to enter a home or seize a person’s property is one that must be exercised with the utmost fidelity to legal safeguards. A bailiff who proceeds without authority is not simply in breach of a technicality, but is acting wholly outside the rule of law. Such individuals are, at best, impersonators and at worst, criminals. The law provides a full remedy and the courts will not hesitate to enforce it where proper evidence is presented. Those facing enforcement action should assert their rights firmly and promptly, secure a copy of any purported certificate, and make a full written record of the incident. Where wrongdoing is established, they are entitled to restitution and, where appropriate, reparation.