Dealing with Bailiffs

Bailiffs and the Fiction of "Voluntary Payment"

It is a frequent and troubling occurrence that when a bailiff receives payment from a person who is not the debtor named on the warrant, he records on the receipt or associated document that the payment was made voluntarily. The intention behind this entry is not administrative neatness. It is a calculated step designed to obstruct the payer from recovering those funds at a later date, whether through legal proceedings or the financial institution from which the payment originated. The term “paid voluntarily” is intended to give the impression that the transfer of money was made out of free will and informed consent, and not under pressure or misrepresentation. That, in many cases, is a falsehood.

The relevance of estoppel and misrepresentation

The principle of estoppel may be invoked by the enforcement agent to argue that, by allowing the receipt to record a voluntary payment, the payer is precluded from later asserting the contrary. The law of estoppel, including the doctrine of estoppel by representation, is comprehensively set out in The Law of Waiver, Variation and Estoppel (3rd edition, Oxford, 2012), particularly at paragraph 9.02. The argument would be that the person paying the bailiff, having seemingly acknowledged the payment as voluntary, cannot now renege on that representation. However, where the facts reveal that the payment was exacted under duress, or under threat of seizing goods not belonging to the debtor, then the representation is tainted by misrepresentation or coercion, and the estoppel fails.

The statutory framework governing seizure

This leads directly to the relevant statutory framework. Paragraph 10 of Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 expressly prohibits enforcement agents from taking control of goods that do not belong to the debtor. That provision lies at the very heart of third-party protection against overreaching enforcement activity. If a bailiff enters a property or confronts a third party and obtains money on threat of removing their goods, then that conduct is plainly unlawful. The bailiff, in that moment, exceeds the limits of the enforcement power conferred by the warrant. In such a case, the words “paid voluntarily” cannot cure the illegality of the act.

Criminal liability for coercive conduct

Further, where the bailiff knowingly misrepresents the nature of the payment or its voluntariness, or where he threatens to seize goods from a person not liable under the warrant, there is a potential criminal dimension. Section 2 of the Fraud Act 2006 makes it a criminal offence to dishonestly make a false representation, intending to make a gain for oneself or another, or to cause loss to another or expose another to a risk of loss. The representation that a payment was voluntary, when in fact it was obtained through intimidation or threats, satisfies both the actus reus and mens rea of the offence. Similarly, if the threat is to seize a third party’s goods for the purpose of obtaining a financial advantage, Section 21 of the Theft Act 1968, which governs blackmail, may also be engaged.

Chargeback as a practical remedy

Where a payment has been made by bank card, particularly from a third party’s account, the law affords a practical remedy. The third party may raise a chargeback request with their card issuer, arguing that the transaction was not authorised in law because it was made under duress or under false pretences. The bank will require the bailiff, or more properly the enforcement company processing the payment, to demonstrate that the named cardholder is the debtor named on the Warrant of Control. If they are unable to produce a warrant bearing that name, the chargeback should be granted and the funds returned to the payer. This is an expedient remedy that does not require litigation, and banks are increasingly familiar with the concept in the context of bailiff enforcement.

Relief under civil procedure rule 85.4

In circumstances where the bank does not process the chargeback or if the funds were taken in cash or by bank transfer, the third party may bring a third-party claim under Civil Procedure Rule 85.4. This rule allows a person who claims a proprietary interest in goods or funds taken in enforcement to seek relief from the court, typically by applying for a declaration that the enforcement agent acted outside the scope of his authority. The burden of proof lies with the claimant to show that the goods or money taken were not subject to the warrant and were wrongfully taken. Where the bailiff’s own document records a voluntary payment, it may become necessary to rebut that document with evidence of the circumstances under which the payment was made. If the payment was secured by threats of seizure or refusal to leave unless payment was made, the court may regard the label of “voluntary” as misleading and self-serving.

Irrevocability of expired enforcement powers

Finally, it should be noted that under paragraph 6(3) of Schedule 12 to the Tribunals, Courts and Enforcement Act 2007, once the enforcement power under a warrant ceases to be exercisable, it cannot be revived. This means that if goods or funds were taken outside the lawful exercise of that power, there is no subsequent opportunity for the enforcement company to ratify or justify the act. Any money so obtained must be returned, and the payer may also have recourse to damages for trespass to goods, conversion, or unjust enrichment.

Conclusion and available remedies

In summary, a bailiff’s assertion that a payment was made voluntarily cannot shield them from scrutiny where the true circumstances suggest duress, misrepresentation, or illegality. The remedies available include initiating a chargeback with the bank, issuing a third-party claim under CPR 85.4, or, in certain circumstances, pursuing a claim in tort or under the Fraud Act. In each case, the law protects those who are not the debtor but find themselves targeted by bailiff enforcement acting beyond its lawful bounds.