Excel Bailiff chasing for fees only

**R0b** · 1st May 2024, 10:09:AM

Hi
Some things don't quite add up but I think I know where you are going with this but need some clarification.

When a council issues a summons, it is a summons to attend the Magistrates' court. Following that a liability order may be granted against you at which point the council can instruct the bailiffs to seize goods.

As far as I'm aware, the council are correct that the bailiff fees are still outstanding, but once the debt has been paid the enforcement power of the bailiff would cease so that the bailiff has no power to clamp your car. They could sue you and take you to court for the remaining balance but I don't believe they have a right under the Taking Control of Goods Regulations.

So based on what you have described, the bailiff has acted unlawfully. You may have a claim to pursue the return of the money the bailiff collected, but then I would assume they just counterclaim for the same amount of money that is due to them which if a court agrees, would cancel out your claim.

What is unclear to me is how the bailiff fees are at £310 and how you managed to remove this 'summons' from the account. Did you pay the council tax debt before bailiffs attended? Please clarify.

**Paulkin** · 1st May 2024, 12:51:PM

Hi Rob - thank you for your reply.

I am happy to clarify.

The bailiff fees were broken down as follows:
Compliance £75
Enforcement stage fee £235
The debt was set at zero.

The paperwork states under the “ Who you owe money too” is listed down as the local authority that originally instructed the bailiffs to collect the amount that was outstanding.

Also to note, the paperwork states the car was clamped on the highway, which it wasn’t as it was on my driveway.

To clarify on the original debt, yes, I paid the outstanding amount to the local authority in full a week after the summons was issued. However, I managed to get the summons (£88 fee) removed from our account as a gesture of good will from the local authority but they said that as the liability order was correctly issued, they will not instruct the bailiffs of cancellation of the fees. Pretty much, the local authority have washed their hands of it and have instructed me to contact the bailiff organisation directly.

I hope this clarifies the situation and I am grateful for further advice!

Many thanks,

Paul.

**R0b** · 1st May 2024, 21:08:PM

Do you have any evidence that the car was on the drive at the time it was clamped, otherwise it's going to be his word against yours. Also bailiffs are required to give you 7 days clear notice before they visit your home by sending you a letter so I am curious how they can charge the compliance fee and even more so the enforcement fee given you paid it off within a week of the order being granted. Adding to that, if the paperwork says the debt is zero, then the bailiff has shot themselves in the foot in my view as that is evidence that the debt had been paid already.

In terms of the legislation, Schedule 12 of the Tribunals Courts and Enforcement Act 2007 and the The Taking Control of Goods (Fees) Regulations 2014 are going to be relevant. To summarise:

Regulation 17 TCGFR: Says that an enforcement agent cannot recover their fees if the power to exercise enforcement ceases to exist. The exception to that rule in 17(2) is that the fees are still recoverable (but not by way of enforcement) if the amount outstanding has been paid by the debtor.

Paragraph 6(3), Schedule 12 TCE: Enforcement powers against property cease to exist when, amongst other things, the amount outstanding has been paid.

Paragraph 59(2), Schedule 12 TCE: Enforcement agents are not liable unless they have been put on notice that the amount outstanding has been paid in full.

Section 50(3), Schedule 12 TCE: Defines the 'amount outstanding' as the total sum of the unpaid debt and any recoverable fees from the sale of seized goods.

To put all of the above together, if you paid the debt in full, the enforcement powers ceased to exist and then if you made the bailiff aware that the debt had already been paid, but the bailiff went ahead and clamped the car anyway, then he is liable for what follows.

I think there are reasonable grounds for submitting a claim for the unlawful recovery of enforcement fees through coercion i.e. the clamping of the car. Assuming you can prove the car was on the driveway rather than a highway, then it's arguable the bailiff committed a criminal offence by clamping the car since clamping is outlawed on private land without a legislative authority to do so. You would be claiming restitution which is the return of the money paid to the bailiff.

There could also be arguments of trespass and unlawful interference with goods as well but there may be issues quantifying the level of compensation since you paid up immediately to release the car.

Now the final question is who do you sue. Assuming the bailiff was employed by a bailiff company, then the defendant would be the bailiff company but that would be verified if you sent them a letter before claim.

Suggest you digest and take everything into account before decided whether it is worth pursuing.

**Paulkin** · 2nd May 2024, 07:51:AM

Thank you so much Rob. Really appreciate it.

You have confirmed what I thought all along this process. I will consolidate all of the above and produce a letter before action over to the bailiff company today.

I will keep you informed how I get on.

**Paulkin** · 14th May 2024, 09:12:AM

As you are aware were acting on authority of a liability order obtained in the magistrates’
court by **** local authority and doing so in accordance with the ‘Schedule 12’ procedure
as set out in Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 and regulations
made under it, including The Taking Control of Goods Regulations 2013.
You have referenced various paragraphs from Schedule 12 which you believe support your
claim. However, this appears to be based on misquoting paragraph 50(3) which does not
define ‘the amount outstanding’ as ‘the total sum of the unpaid debt and any recoverable fees
from the sale of seized goods’.
It does in fact state:
The amount outstanding is the sum of these—
a) the amount of the debt which remains unpaid (or an amount that the creditor agrees
to accept in full satisfaction of the debt);
b) any amounts recoverable out of proceeds in accordance with regulations under
paragraph 62 (costs).
This means the amount outstanding is the debt (a) plus the fees (b); not just the debt.
To fully explain:
If a debtor, or someone on his behalf, pays a sum direct to the creditor which is subject to a
liability order issued to an enforcement agent, then the payment is subject to the Schedule
12 procedure. This means the payment is ‘money taken in exercise of an enforcement power’.
Money taken in exercise of an enforcement power must be used to pay the amount
outstanding: as set out at paragraph 50(1) of Schedule 12 of the Tribunals, Courts and
Enforcement Act 2007 (TCE).
Proceeds are defined as any of -
(a) Proceeds of sale or disposal of controlled goods
(b) Money taken in exercise of the power, if paragraph 37(1) does not apply to it.
The compliance stage fee is, in accordance with regulation 5(1)(a) of The Taking Control of
Goods (Fees) Regulations 2014, due and payable at the point of receipt by the Enforcement
Agent of the instruction to use the Schedule 12 procedure. Therefore, from the moment Excel
received the liability order from the creditor (in this case, the 6th September 2023) the
‘amount outstanding’ includes the £75.00 compliance stage fee.
Money paid to the creditor following the issue of the liability order to Excel, is money taken
in exercise of the power and accordingly any such payment is subject to the Tribunals, Courts
and Enforcement Act 2007 procedures.
The distribution of funds where an amount less than the full sum outstanding is paid is
governed by regulation 13 of The Taking Control of Goods (Fees) Regulations 2014 which
directs that any payment must be allocated in the following order; compliance fee and then
pro-rata in payment of the debt and fees.
The explanatory note to the TCOG (fees) regulation explains regulation 13 as follows:
“Regulation 13 provides for the order of application of proceeds where the amount recovered
is less than the amount outstanding. Any fees and expenses owed to an auctioneer, and the
compliance stage fee for the enforcement agent are prioritised, with the remaining proceeds
being divided pro-rata between the debt and payment of the remaining fees and
disbursements due to the enforcement agent.
” This gives effect to the central policy aim of
creating a sustainable fee structure.
The first £75.00 must pay the compliance stage fee and the remaining sum of the part
payment is allocated to the debt and fees pro-rata.
Accordingly making payment of the originating debt, without paying the £75.00 compliance
stage fee means the ‘amount outstanding’ was not paid.
Consequently, any action to recover the ‘amount outstanding’
, including attending and taking
control of goods, is entirely lawful.

**Paulkin** · 14th May 2024, 09:13:AM

Hi Rob! Above is their reply!

**R0b** · 14th May 2024, 09:59:AM

Utter rubbish, I'll respond soon.

**Paulkin** · 14th May 2024, 11:48:AM

Thank you so much!

**R0b** · 14th May 2024, 12:15:PM

I find it amusing that they seem to be suggesting there is a misquoting of section 50(3) yet they go on to misquote part of the regulations. to suit their own position. If I were in your shoes, I would be inclined to respond to something like the below.

Obviously it is now up to you whether you want to continue with proceedings to recover the amount, arguing that the money was taken unlawfully. Still, even if the compliance fee is recoverable, the enforcement fee certainly isn't so that amount I think is still open to be recovered if you took this further to court.

Note, the below response is just an example and I wouldn't suggest you copy and paste it as you should understand what you are actually saying in your response because you will need to know this if you start legal proceedings.

Dear Sir or Madam,

I am writing in response to your [letter/email] of [insert date] and note that you maintain that the enforcement agent acted at all times in a lawful manner. Respectfully, I disagree and the reasons for which you have explained in your [letter/email] are flawed.

To summarise:

1. Your assertion that a sum of money paid to the creditor is 'money taken in the exercise of an enforcement power' under the definition of 'Proceeds' is simply wrong. Regulation 2 of the The Taking Control of Goods (Fees) Regulations 2014 ("TCGFR") states that an "enforcement power" has the meaning given to it in paragraph 1 of Schedule 12 of the Tribunal Courts and Enforcement Act 2007 ("TCEA"). Under paragraph 1 of Schedule 12, it says:

"(1) Using the procedure in this Schedule to recover a sum means taking control of goods and selling them to recover that sum in accordance with this Schedule and regulations under it.

(2) In this Schedule a power to use the procedure to recover a particular sum is called an "enforcement power"."

Accordingly, the taking of money in the exercise of an enforcement power must be in relation to the taking control of goods and/or selling them. This position was also confirmed in High Court decision of Progressive Property Ventures LLP v Mrozinski and others [2022] EWHC 1256 (QB). In that case, Master Brown said:

"whilst the 'enforcement power' arises once the Writ is directed to the agent (High Court Enforcement Officer), the exercise of it only commences when the procedure for taking control commences validly: that is, on taking control of goods."

The money paid to the creditor was done at a time well before the enforcement agent had attended my property and purported to take control of goods, so it is plainly obviously that the payment of the money to the creditor was not done in the exercise of an enforcement power by the appointed enforcement agent.

I should add that section 62 of the TCEA confirms that the powers conferred under a writ is only exercisable using the procedures described under Schedule 12 of the TCEA and that any taking control of goods or selling them can only be carried out by an enforcement agent under section 63 TCEA. Any purported enforcement power exercised outside of Schedule 12 is not a valid enforcement power (I refer you to Just Digital Marketplace v HCEOA [2021] EWHC 15 (QB)). The creditor is not a certified enforcement agent (as defined in the TCEA) nor was the creditor acting in the presence and under the direction of the enforcement agent when the payment was made nor is the creditor exempt for the purposes of acting as an enforcement agent, and so it follows that the payment of the debt fell outside the procedures of Schedule 12. In any event, your suggestion that the creditor was in fact acting as an enforcement agent for the purposes of the TCEA and Schedule 12, would render the creditor guilty of a criminal offence.

2. For the reasons outlined above, when I paid the debt to the creditor on [insert date], there was no recoverable amounts out of 'proceeds' as defined in section 50(2), that is to say, there was no money taken in by the enforcement agent in the exercise of an enforcement power nor were there any proceeds form the sale or disposal of controlled goods. I therefore discharged the 'amount outstanding' and as such, the enforcement agent's enforcement powers immediately ceased on that same day the debt was paid.

3. Your reliance on Regulation 13 of the TCGFR is misguided because the Regulation assumes that an enforcement power has been exercised and I have clearly established above that there was no exercise of an enforcement power by the bailiff.

I remain firmly of the view that the enforcement agent acted unlawfully by purporting to exercise an enforcement power under the writ when that power ceased to exist in order to obtain coerce a payment to be made. I am also of the view that, because the enforcement agent did not have lawful authority to clamp the vehicle, the agent committed a criminal offence pursuant to Section 54 of the Protection of Freedoms Act 2012.

In an effort to avoid unnecessary legal proceedings, I would invite you to reconsider your position. If I do not hear back from you by [insert date 14 days] or you continue to maintain your denial, I will proceed with the next steps which is to commence legal proceedings against you. If you do not believe that you are the correct defendant in this matter, please explain who that defendant(s) together with a reasonably detailed explanation why.

**Paulkin** · 14th May 2024, 17:00:PM

Thanks Rob - you are the best. Yes, they certainly bend the rules to suit them. I’ll reply as directed as I am not going to let this go!

**Paulkin** · 17th May 2024, 11:35:AM

Hi Rob - I had a reply from the local authority when I complained to them and this is what they have said:

“Thank you for your email dated 21 and 22 April and 1st May 2024.

First let me apologise for delay in replying, this was due to the large number of correspondences recently received.

As per Taking Control of Goods Regulation 2013 and Taking Control of Goods Regulation (Fees) 2014, the council is able to pass outstanding balances to a collection agency and the collection agency are allowed to charge reasonable fees.

I can confirm your council tax account is currently up to date.”

As I suspected, they practically have washed their hands of it. Is this something they are still able to do?

**Paulkin** · 23rd May 2024, 08:16:AM

Hi Rob, do you think I have some sort of case against the local authority too?

**Paulkin** · 23rd May 2024, 10:35:AM

PS. I have read your reply and full understand it so it’s been changed accordingly and has been sent to them

**Paulkin** · 31st May 2024, 10:10:AM

Hi Rob -

Just had a reply from them

Our Ref: WFC1051843*5
Thank you for your e-mail and attachment of 23rd May.
It is indeed true that paragraph 1 of Schedule 12 to the Tribunals, Courts and Enforcement Act
2007 gives the meaning of ‘Using the procedure…
’ as ‘taking control of goods and selling
them’
. This does not mean, however, that taking money in the exercise of an enforcement
power requires goods to be taken into control.
The Schedule 12 procedure requires a Notice of Enforcement to be issued as the first stage in
the process, prior to goods being taken into control, subject to an exception where a court
order has been obtained. The “compliance stage” is, therefore, an integral part of the
process.
Based on your argument any payment made during the compliance stage is not proceeds
from the exercise of an enforcement power, which is clearly a logical fallacy.
It is a fact that it is not necessary for goods to be taken into control for the provisions of the
Tribunals, Courts and Enforcement Act 2007 to apply and this includes the distribution of
monies in accordance with The Taking Control of Goods (Fees) Regulations 2014.
As previously noted, the proceeds from the exercise of an enforcement power must be used
to pay the amount outstanding: paragraph 50 (1).
The amount outstanding is the sum of these—
a) the amount of the debt which remains unpaid (or an amount that the creditor agrees
to accept in full satisfaction of the debt);
b) any amounts recoverable out of proceeds in accordance with regulations under
paragraph 62 (costs).
This means the amount outstanding is the debt (a) plus the fees (b); not just the debt.
Proceeds are defined as any of -
(a) Proceeds of sale or disposal of controlled goods
(b) Money taken in exercise of the power, if paragraph 37(1) does not apply to it.
Furthermore, the Fees regulations (paragraph 4), authorises the enforcement agent to
recover fees at each stage (compliance, enforcement and sale). Neither the compliance stage
nor the enforcement stage require goods to be taken into control in order for the respective
fees to apply.
Your reference to the Mrozinski case is misplaced. It related to the recovery [not application]
of a fee where the debtor was claiming to be vulnerable and in relation to what constituted
“an adequate opportunity to get assistance and advice ...”
.
Master Brown did not rule on whether money taken in exercise of an enforcement power
required goods to be taken into control but made obiter dicta comments on the wording of
the regulations with regard to the matter at hand; not payments. The Master’s judgment was
entirely in relation to regulation 12 and the interpretation of ‘adequate opportunity’
.
As detailed above, an Enforcement Agent is entitled to the compliance stage fee upon receipt
of the instruction and accordingly any payment made after this date must, in accordance with
the provisions of the regulations, be allocated firstly against the compliance stage fee,
regardless of whether an enforcement agent has attended or taken control of goods. The
Schedule 12 procedure commences upon receipt of the instruction and the subsequent issue
of a Notice of Enforcement.
As noted in my previous letter, any action to recover the ‘amount outstanding’, including
attending and taking control of goods, is entirely lawful.

Excel Bailiff chasing for fees only