Bailiffs' Liability for Damage to Vehicles Under Enforcement

Statutory duty of care under Schedule 12

When an enforcement agent lawfully takes control of a motor vehicle under Schedule 12 to the Tribunals, Courts and Enforcement Act 2007, they are under a continuing statutory duty to preserve and protect the goods seized. That duty is expressly set out in paragraph 35(1) of Schedule 12, which provides that the enforcement agent must take reasonable care of controlled goods that he removes from the premises or highway where he finds them. This provision is not merely aspirational but imposes a clear legal obligation, breach of which entitles the debtor, or indeed the owner of the goods, to seek appropriate redress through the courts. Furthermore, subparagraph (2) mandates compliance with any regulation relating to the care of such goods, thereby incorporating the requirements of the Taking Control of Goods Regulations 2013 into the enforcement agent’s duty.

Regulation 34: safeguarding removed goods

Regulation 34 of the 2013 Regulations prescribes the standard to which this duty must be performed. It stipulates that goods removed must be stored securely, in a condition that prevents damage or deterioration, and must be maintained in the same condition as they were in immediately prior to seizure. In the context of a motor vehicle, this requires that the enforcement agent ensures the vehicle is protected from the elements, vandalism, theft, and mechanical degradation. Storage facilities must be suitable and secure, and any departure from this standard may well be regarded as a breach of statutory duty.

National Standards and insurance obligations

In addition to these statutory instruments, guidance published by the Ministry of Justice in the form of the Taking Control of Goods: National Standards 2014 reinforces the requirement that enforcement agents handle controlled goods with proper care. Paragraph 63 of that guidance makes clear that agents must have appropriate insurance in place to cover goods in transit and in storage, thereby recognising the real risk of damage and the need for a remedy when such damage occurs.

Remedies under paragraph 66 of Schedule 12

Where a breach has taken place, the appropriate remedy lies in paragraph 66 of Schedule 12, which provides the mechanism by which a debtor may bring proceedings against either the enforcement agent or the creditor. Paragraph 66(1) applies where the enforcement agent either breaches a provision of the Schedule or acts under a defective enforcement instrument. Crucially, subparagraph (5)(b) permits the court to order the payment of damages in respect of loss suffered as a result of the breach. Those damages may include the cost of repairing the vehicle, or its replacement value where repairs are uneconomical, as well as consequential losses such as hire vehicle costs or lost earnings where the vehicle is essential to the claimant’s trade.

Concurrent claims under the Torts (Interference with Goods) Act 1977

It is also open to the claimant to pursue a concurrent claim under section 3 of the Torts (Interference with Goods) Act 1977. That Act permits the recovery of damages for unlawful interference with goods, and damage occasioned by the bailiff’s negligence or mishandling of the vehicle is properly to be characterised as such. The claim may be brought by the owner of the vehicle whether or not they are the debtor, provided that ownership or a possessory interest can be established. Where the vehicle is jointly owned, or owned by a third party, a declaration of ownership or a third-party claim under CPR Part 85 may be required to protect that party’s interest.

Documenting vehicle condition and preserving evidence

In practical terms, any person recovering their vehicle from the bailiff’s pound should conduct a thorough inspection before leaving the premises. Photographs, a contemporaneous written inspection report, and a prompt written notification to both the enforcement agent and the creditor are vital. This documentation forms the evidential basis of any subsequent claim. Where possible, a request should also be made for the agent’s vehicle condition report and any body-worn video footage taken at the time of removal. These may confirm the pre-removal condition of the vehicle and rebut any suggestion that the damage was pre-existing. If the enforcement agent or their employer refuses to disclose such footage, a complaint may be made to the Information Commissioner under section 165(2) of the Data Protection Act 2018, and disclosure may be compelled in due course through court proceedings.

Issuing a notice of damage

The initial step in the recovery process should be a formal notice of damage sent to the enforcement company and copied to the creditor. This notice should set out the nature of the damage, attach supporting evidence including photographs and repair estimates, and invite inspection. It should give a reasonable deadline for resolution and make clear that in the absence of a satisfactory response, legal proceedings will follow. This approach aligns with the spirit and letter of the Pre-Action Protocols under the Civil Procedure Rules and helps to demonstrate that the claimant has acted reasonably throughout. The notice should be retained as part of the documentary record and may, if necessary, be exhibited to a witness statement or affidavit sworn in support of proceedings.

Commencing legal proceedings

Should the creditor or bailiff company fail to respond appropriately, proceedings may be brought in either the county court or the High Court, depending on the court from which the original warrant issued. The claim should identify the enforcement agent, the enforcement company, and the creditor, noting that liability may be joint and several. The claim form and particulars of claim must be accompanied by a signed statement of truth and supported by a witness statement detailing the chronology, the damage suffered, and the losses claimed. Care should be taken to particularise special damages such as loss of earnings or hire charges with supporting invoices or records.

Conclusion and further support

Ultimately, the legal framework provides clear and enforceable protections to ensure that goods seized under enforcement powers are not wantonly or negligently damaged. Where such damage occurs, the law affords an effective remedy. Claimants who act promptly, gather evidence meticulously, and engage in pre-action correspondence in accordance with the Civil Procedure Rules will be well-placed to recover compensation for their losses. Should you require assistance in preparing the notice of damage, drafting correspondence to the creditor, or initiating proceedings, I am available to provide further professional guidance and, if instructed, to act in the preparation and presentation of your claim.