Dealing with Bailiffs

Notice of Enforcement: Legal Requirements and Remedies for Debtors

Failure to serve a notice of enforcement is a breach of statutory duty

Where a debtor has not received a Notice of Enforcement prior to a visit from an enforcement agent, the law affords them a clear and robust cause of complaint. Paragraph 7(1) of Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 sets out a mandatory precondition to the exercise of any enforcement power over goods: the debtor must first be given notice. This notice must not only be provided, but must also comply with the minimum time requirement imposed by regulation. Specifically, Regulation 6(1) of the Taking Control of Goods Regulations 2013 stipulates that notice must be given not less than seven clear days before the enforcement agent takes control of the debtor’s goods. Weekends and public holidays are excluded from this computation, as clarified in Regulation 6(2).

Requirements for valid service of the notice

The service of this Notice of Enforcement may be effected by post or electronic means under Regulation 8 of the 2013 Regulations, provided it is addressed to the place where the debtor usually resides or conducts business. Under section 7 of the Interpretation Act 1978, a document sent by post is deemed served unless the contrary is proved. Civil Procedure Rule 6.26 further clarifies that a document served by post is deemed served on the second business day after posting. This creates a rebuttable presumption of service, and a debtor who did not in fact receive a notice may be in a position to rebut it by producing a witness statement or other admissible evidence demonstrating non-receipt.

Common breaches and defective enforcement

It is not uncommon to encounter enforcement companies, including firms such as DCBL, who neglect to issue or prove service of the required notice. In circumstances where the enforcement agent arrives unannounced, particularly where the debtor has recently moved and the enforcement power still bears the previous address, the practice of enforcing without serving the statutory notice is not merely improper, it renders the enforcement unlawful. In such instances, the debtor has a direct remedy. Paragraph 66 of Schedule 12 provides that where an enforcement agent breaches any provision of the Schedule or acts under a defective enforcement instrument, the debtor may bring proceedings. The court may order the return of goods and award damages for any loss sustained.

Invalid fees for non-compliant enforcement

Importantly, a breach of paragraph 7(1) also disqualifies the enforcement agent from recovering fees under Regulation 3 of the Taking Control of Goods (Fees) Regulations 2014. That regulation confines entitlement to fees to circumstances where the enforcement agent has used the Schedule 12 procedure. Since the giving of notice is integral to the commencement of that procedure, any enforcement carried out without such notice falls outside the permitted framework. It follows that any fees levied are irrecoverable and must be repaid. A debtor may apply for a detailed assessment of those fees under Regulation 16 of the 2014 Regulations, or where fees have already been paid, bring a claim under Part 7 of the Civil Procedure Rules to recover them.

Requesting a certificate of service

A debtor in such a position should promptly request that the enforcement agent complete and return a Form N215 certificate of service. This will reveal the purported method, date and time of service. Should the agent refuse to provide this form, or fail to produce any contemporaneous record of the notice having entered the postal system, that failure may itself be relied upon as evidence that no valid notice was given. Paragraph 7(3) of Schedule 12 places a duty on the enforcement agent to record the time of service. A mere reconstituted copy of the notice, produced after the event from a database, is not sufficient to prove that the statutory requirement was met. The court is likely to accept that an absence of contemporaneous proof undermines the reliability of service and supports the debtor’s position.

Address records and DVLA arguments

Where the agent attempts to justify the lack of notice by reference to outdated vehicle keeper records or unamended DVLA entries, such arguments are of little assistance. The statutory regime requires notice to the debtor, not merely to an address linked to outdated administrative data. Further, threats of a £2,000 fine for failing to update vehicle records, while perhaps a matter for the DVLA, have no bearing on the enforcement agent’s obligation to serve the notice correctly.

Applying for an injunction

If enforcement has proceeded without valid notice, and particularly where a vehicle has been clamped or removed, the debtor may seek interim relief by applying for an injunction. Before doing so, it is good practice to notify the bailiff and their instructing creditor of the alleged breach, and invite them to return control of the goods by a reasonable deadline. If this invitation is refused or ignored, the debtor may proceed with a without notice application for injunctive relief in the High Court or County Court depending on the court of origin of the warrant or writ. Upon securing the injunction, the court may subsequently grant declaratory relief, damages for the loss of use of the vehicle, and costs.

Third party claims and ANPR

Where the vehicle is owned by a person other than the named debtor, or recently acquired in good faith, a third-party claim may be brought under CPR Part 85. This allows the third party to assert proprietary rights in goods wrongly seized. If ANPR technology was used to trace and immobilise the vehicle, the enforcement action must still be based on a validly served Notice of Enforcement. Any departure from this renders the action defective.

Summary and recommended action

To summarise, if a debtor did not receive a Notice of Enforcement at least seven business days before enforcement action was taken, then the entire enforcement may be unlawful. This invalidity may entitle the debtor to seek the return of their goods, claim damages, and recover any fees paid. The debtor should consider gathering evidence, including postal records and any third-party searches by enforcement companies, to support a claim. Subject access requests to credit agencies or vehicle tracing records may assist in showing the enforcement agent knew the debtor's current whereabouts but failed to comply with the statutory service requirements.

Conclusion

The court will ultimately determine the issue based on the evidence, and where the agent cannot prove that the notice was properly given, the debtor’s claim is likely to succeed. In every case, the failure to serve a Notice of Enforcement is a serious procedural defect. It is not a minor irregularity, but rather a breach of a fundamental statutory safeguard. The courts have made clear that Schedule 12 confers rights not only on enforcement agents, but also on debtors, and those rights must be observed if the integrity of the enforcement system is to be maintained.