Dealing with Bailiffs

Bailiffs and the Requirement to Show Authority under Schedule 12

The legal duty to show authority

It is a fundamental principle of lawful enforcement that an enforcement agent must be able to demonstrate authority to act. Where the agent refuses, upon request, to show the Warrant of Control or Writ of Control under which he purports to be acting, that refusal is not merely a procedural irregularity. It is a matter going to the heart of the agent's authority, and where no lawful authority is exhibited, there can be no lawful entry, seizure or control of goods. The statutory basis for this obligation is found at paragraph 26(1)(b) of Schedule 12 to the Tribunals, Courts and Enforcement Act 2007. It states in clear terms that an enforcement agent must, when asked, show the debtor or any person who appears to be in charge of the premises, evidence of his authority to enter those premises. The timing of such a request is equally significant. Sub-paragraph (2) confirms that the request may be made either before the enforcement agent enters the premises or whilst he is present within them. The duty to comply with such a request is not optional; it is a mandatory requirement of lawful conduct.

Consequences of refusal to show the warrant

It follows that if an enforcement agent fails or refuses to show the Warrant or Writ when asked, then he is acting without lawful authority. The warrant or writ must, at minimum, show the correct name of the debtor and the current address to which the enforcement relates. If it does not, then it is defective. If the agent is aware that the document is defective but proceeds regardless, his conduct may fall within the ambit of the criminal law. Sections 2 to 4 of the Fraud Act 2006 address conduct whereby a person dishonestly makes a false representation, fails to disclose information he is under a legal duty to disclose, or abuses a position in order to obtain a gain or cause a loss. Where an enforcement agent attends a property without authority and refuses to show the instrument he purports to act under, that conduct may give rise to reasonable grounds to allege an attempt to gain pecuniary advantage by misrepresentation.

Remedies under schedule 12, paragraph 66

Moreover, paragraph 66 of Schedule 12 provides an express right of action to the debtor where an enforcement agent either breaches the provisions of the Schedule or acts under an instrument that is defective. The law recognises that even where the agent does not become a trespasser by reason of such a breach or defect, this does not deprive the debtor of their right to seek redress. Proceedings may be brought under this paragraph, and the court is empowered, under sub-paragraph (5), to order the return of goods and to grant such further relief as it considers appropriate. This includes an order for damages.

Fees are not chargeable if the procedure is breached

In respect of fees, an agent who is not acting lawfully is not entitled to recover enforcement fees. Regulation 3 of the Taking Control of Goods (Fees) Regulations 2014 states that those fees apply only when the Schedule 12 procedure is used. If the enforcement agent is in breach of Schedule 12, then he is not using the Schedule 12 procedure within the meaning of the Regulations, and thus no fees are payable. The debtor may therefore be entitled to a full refund of all fees and charges paid, and where a vehicle or goods have been removed or sold, to compensation for the loss and any consequential damage.

Problems with forged or defective warrants

Where enforcement is purportedly undertaken in relation to Magistrates’ Court fines, there are widespread concerns about the circulation of forged or incomplete warrants. In such cases, enforcement agents acting on behalf of commercial contractors such as Marston Holdings or Excel Civil Enforcement have been found to exhibit documents which fail to meet the criteria of a valid warrant. A forged or incomplete document does not confer lawful authority. Where such a document is used to gain entry or to remove goods, the agent is again acting without legal foundation and is subject to civil liability under paragraph 66. It may also give rise to criminal sanctions depending on the circumstances.

Protecting your position

To protect your position, you should demand to see the Warrant or Writ immediately upon the agent's arrival and make a contemporaneous written record of what is said and done. If the agent refuses to produce the instrument, you should state clearly that you do not consent to any enforcement activity and that you consider the visit unlawful. If goods are removed in the absence of valid authority, you may commence proceedings in the County Court for an order under paragraph 66(5) requiring the return of goods and compensation. A sworn affidavit in support of your account will carry evidential weight and should be prepared promptly, particularly if you intend to challenge the lawfulness of the enforcement action.

Applying under CPR 31.17 to compel disclosure of the warrant

If a bailiff refuses to produce the Warrant of Control or give opportunity to check its authenticity, the debtor or third party may apply to the court under Civil Procedure Rule 31.17 for an order compelling its disclosure. CPR 31.17 allows a party to obtain disclosure from a non-party where the document sought is likely to support the applicant’s case or adversely affect another party’s case, and disclosure is necessary to dispose fairly of the claim or to save costs. This procedural mechanism overrides any excuse based on the Data Protection Act, as compliance with a court order is a legal duty. Should the bailiff fail or refuse to comply with an order made under CPR 31.17, he may be held personally liable for contempt of court. The threat of contempt proceedings, which carry serious consequences including fines or imprisonment, places the bailiff under direct legal pressure to disclose the warrant if he is relying on it to justify enforcement action.

Late production of the warrant is insufficient

Even where the enforcement agent attempts to remedy the defect after the fact by presenting the Warrant or Writ following departure from the premises, that is insufficient. The statutory language of paragraph 26(2) makes clear that the request for authority may be made before entry or during presence. Post hoc disclosure does not cure the original breach and cannot retrospectively legitimise an otherwise unlawful act. In such a case, the debtor retains the right to challenge the enforcement and recover any property taken or sums paid.

Further remedies and regulatory consequences

If necessary, you may also seek an injunction to restrain further unlawful enforcement and recover your property, or apply for declaratory relief that the enforcement action was invalid. Such proceedings are properly issued in the County Court using the Part 7 procedure under the Civil Procedure Rules, supported by evidence on affidavit, and accompanied by a claim for costs. The court may also be invited to consider whether the enforcement contractor or its agents should be referred to the Ministry of Justice or the relevant regulatory authority for further investigation.

Conclusion

The refusal to produce a Warrant of Control upon demand is not a minor procedural error. It is a substantive breach of the statutory enforcement framework and a clear indicator that the agent may be attempting to exercise powers he does not possess. The law provides specific remedies to the debtor in such circumstances, and those remedies should be promptly and rigorously pursued.