Excel Bailiff chasing for fees only

[Paulkin]

Good morning everyone,

Firstly, apologies if this is duplicated in other forums but I have had a look but cannot see anything listed which is similar.

I had a council tax summons issued against me and the local authority then passed it to debt collectors.

During this time I managed to get the summons amount removed off my account, however, the local authority said that as the summons was issued correctly, I still have to pay the bailiff fees (totalling £310).

I then contacted the bailiff company after receiving an attendance letter and they confirmed that I have to pay. Yesterday I came home to find my car clamped, on my driveway, so I had no option but to pay.

My question is, do the bailiffs still have the same power of authority to claim these fees as I believed that the courts issue the recovery for just the debt and not the bailiffs fees.

If you could please let me know whether it’s something I can try and reclaim back, I would appreciate it.

[JK2054]

Yep enforcement agents can do that

[Paulkin]

Thanks for getting back to me. Was the enforcement agent right in clamping the car on our driveway though?

[JK2054]

I've read the councils response and I'm satisfied it is correct. Once they are instructed they are entitled to compliance fees. that is corect.

[Paulkin]

Hi buddy! Thanks for the reply and apologies for the delay in getting back. I had a response back from Excel and it was really some advice on the reply they sent me, which was the super long message I posted last. Do you want me to resend it?

[JK2054]

Whats the question you need help with. I see lots of texsts but can't see what your question actually is that ROob hasnt answered

[Paulkin]

Hi all - is there anyone else that can pick this up as I think Rob is away for a while.

Any help would be absolutely amazing!

[Paulkin]

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.

[Paulkin]

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

[Paulkin]

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

[Paulkin]

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]

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!

[R0b]

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]

Thank you so much!

[R0b]

Utter rubbish, I'll respond soon.