Dealing with Bailiffs

Third-Party Claims Against Bailiffs: Legal Remedies for Unlawful Enforcement

When an enforcement agent, commonly known as a bailiff, takes control of goods, he may only do so in respect of goods that belong to the debtor. This principle is enshrined in paragraph 10 of Schedule 12 to the Tribunals, Courts and Enforcement Act 2007, which provides in clear and unequivocal terms that an enforcement agent may take control of goods only if they are the goods of the debtor. It follows that where enforcement is attempted or carried out against the property of another, such as when a vehicle is clamped or removed despite the registered keeper not being the judgment debtor, the action is unlawful.

ANPR clamping and mistaken identity

A common situation giving rise to this breach involves the use of automatic number plate recognition systems, leading to what are known as ANPR drive-by clamping events. In such cases, a vehicle may be immobilised on the assumption that it is owned by the named debtor, when in fact it has been sold to or is used by a third party. The registration certificate, or V5C, does not confer legal ownership, as confirmed in Burns v Currell [1963] 2 All ER 297. Therefore, when asserting ownership, a claimant must rely on a combination of factors such as the bill of sale, proof of payment, insurance, tax records, maintenance receipts, and other supporting documentation.

Remedies under schedule 12 and cpr 85

Where a third party claims ownership of goods seized by a bailiff, the appropriate remedy lies in paragraph 60 of Schedule 12 to the 2007 Act. This allows the third party to make a claim to controlled goods. Civil Procedure Rule 85.4 governs the procedure: the third party must serve a notice of claim within seven days of the goods being taken into control. Upon receipt, the bailiff must notify the creditor within three days. The creditor then has seven days to accept or reject the claim. If the claim is accepted, enforcement must cease and the goods must be released. If the claim is rejected or no response is received within ten clear days, the claimant may apply to the County Court under CPR 85.5 for a determination of the claim.

Suspension of enforcement and indemnity costs

The enforcement power is suspended during the consideration of the claim, pursuant to paragraph 60(2) of Schedule 12. In Alenezy v Shergroup Ltd [2022] EWHC 777 (QB), the High Court confirmed that where a bailiff has no reasonable basis for asserting that goods belong to the debtor, costs may be awarded on an indemnity basis. Furthermore, CPR 44.2 provides that the court has a broad discretion to make costs orders having regard to the conduct of the parties, including whether it was reasonable for a party to contest the claim.

Torts Act claim for conversion and interference

If the enforcement agent has retained or sold the goods, the third party may bring a claim in conversion and for wrongful interference under sections 3 and 4 of the Torts (Interference with Goods) Act 1977. These provisions entitle a person with possession or ownership of goods to claim for their return and for consequential losses, such as lost income or the cost of hiring a replacement vehicle. Section 3(2) further enables a claimant to seek damages where the goods cannot be returned.

Court deposits and misstatements by enforcement representatives

It is not uncommon for enforcement agents to demand that the third party pay a sum into court equal to the value of the goods before proceeding with the claim. This is not a statutory requirement under CPR 85 and may be challenged, especially where the claimant is in financial hardship. If necessary, the claimant may elect to proceed solely under the 1977 Act and circumvent the CPR 85 procedure. Contrary to the assertions sometimes advanced by representatives of enforcement firms, most notably by Mr Peter Felton Gerber, this alternative route is perfectly lawful and has been repeatedly affirmed in court.

Unlawful pressure to obtain money from third parties

Another frequent occurrence is the collection of money from third parties under pressure. This often arises where a friend or relative is persuaded, under threat of removal of goods, to make payment for a debt they do not owe. This may constitute an offence under section 2 of the Fraud Act 2006, where a false representation is made dishonestly with intent to gain or cause loss. Yet police commonly decline to investigate, mischaracterising the matter as a civil dispute. Victims should seek an immediate chargeback from their bank and, if unsuccessful, pursue a claim in restitution for the return of money obtained without lawful authority. As a matter of principle, money given under duress is not considered a gift, and in the absence of express written terms to the contrary, a payment is presumed to be a loan.

Practical steps and supporting documentation

For all these reasons, a structured and comprehensive response is necessary. The third party should compile all available documentation evidencing ownership or financial interest in the goods and serve a formal notice of claim under CPR 85.4. If that claim is ignored or rejected, an application should be made under CPR 85.5 supported by a witness statement and exhibits. Where money was taken, a restitutionary claim may be made alongside a claim for damages.

Creditor liability and recovery of legal costs

Throughout this process, the creditor remains liable for the actions of the bailiff under paragraph 7 of the Taking Control of Goods: National Standards, which states that creditors are responsible and accountable for the enforcement agents acting on their behalf. It is not necessary to pursue the bailiff company directly. The court may award legal costs to the successful party pursuant to CPR 44.2 and 46.5, and even a litigant in person may recover reasonable costs if acting in a professional capacity.

Importance of prompt action and legal advice

This area of law is often misunderstood by the enforcement industry and the lay public alike. It is therefore essential that affected parties obtain proper legal advice and act swiftly. Delay can result in the loss of remedies, especially where the vehicle has already been sold. Vigilance, preparation, and procedural accuracy are key to a successful claim.