contract law on debt collection with bailiff

[deeepeee]

Wondering if someone can help.

I instructed a debt collection firm to collect a debt that I was awarded in court via a CCJ. The debt collection firm instructed a bailiff (high court Sheriff) who acted for me to acquire a high court writ to collect this money from the debtor.

The bailiffs screwed up. They were provided substantial information to acquire the money and the debtor information/location, but due to their failings to act, (which they admitted too), I am now unable to collect the money!

Although the CCJ still stands, the opportunity to find the debtor has gone (using reasonable methods).

I have now advised the bailiffs that they are responsible for the cost of the claim that they failed to collect and that they should now pay it (less than £2k). I have notified them of my intention of making a claim against them in the small claims court.

They have now instructed a solicitor to defend themselves, they are saying that my 'claim' (contract) is with the Debt Collector who my contract was with. They infer that the Debt Collector had the contract with the bailiff, not me. They are not denying their failure, but seem to be inferring I had no contract with them.

My question is, this, Do I have a contract with the Bailiff via the debt collector? The debt collector has been fantastic, they have done everything in their power to help, but it was the bailiffs who screwed up (and admitted it).

Do I have a case against the bailiffs or do I need to get the debt collector involved in my claim?

The total value is less than £2,000.

[ploddertom]

I would suggest the Debt Collector exceeded their authority in engaging the HCEO. You don't say how this was screwed up as it may very well have a bearing on what happened. In most cases the HCEO is protected. Who were the Debt Collectors & who was the HCEO?

[R0b]

As your contract is with the debt collection firm who instructed the bailiff on your behalf then it is them that you should be looking to claim against who in turn might want to claim against the bailiff if they acted in negligence and missed an opportunity.

It's not clear who supplied the information to the bailiff, was that you or the debt collection firm on your behalf?

[deeepeee]

I would suggest the Debt Collector exceeded their authority in engaging the HCEO. You don't say how this was screwed up as it may very well have a bearing on what happened. In most cases the HCEO is protected. Who were the Debt Collectors & who was the HCEO?

Hi Plodertom,

I am not really sure how the Debt Collector exceeded their authority? Do you mean they cannot engage the HCEO? The agent (for the HCEO) was in direct communication with me, asking me for details of the debtor. I was giving almost 'live' information as he was quite 'slippery'. I was getting almost ignored by the HCEO to the point I had to contact the line manager who then told me the agent was having some family issues and not been replying to me. I asked why they didn't intervene with another agent as the info I was providing was time-consuming to me and falling on deaf ears. They made excuse after excuse that the agent assigned was the best for the job and he would get in touch after his personal issues. This went on for weeks if not months, by which time the debtor got wind of the collection, he has now gone 'off the radar'!

The Debt collector (who is 100% trusted by me, a friend), no longer uses this HCEO due to other negative incidents. He will no doubt assist me if needed but, as the HCEO has failed me I wanted to hold them to account directly.


I would prefer not to name either Debt Collector of HCEO at this time in a public forum for obvious reasons.

[deeepeee]

As your contract is with the debt collection firm who instructed the bailiff on your behalf then it is them that you should be looking to claim against who in turn might want to claim against the bailiff if they acted in negligence and missed an opportunity.

It's not clear who supplied the information to the bailiff, was that you or the debt collection firm on your behalf?

Hi Rob,
Yes, I understand I did instruct the Debt Collector so get that. I was wondering if their contract with the bailiff (on my behalf) would give me some legal right to challenge their failings directly. As the bailiff had in fact sought to deal directly with me after the engagement, they assumed (legally??) I was the instructing client and were taking direct instruction from me. I was wondering if this would imply a contract, as, contracts can be verbal. As there is email communication to show I was giving info directly, I was wondering if this adds weight.

The negligence was that the bailiff agent was assigned to my case. He was taking info from me then going weeks or more without acting. Then, out the blue he would say, I had a family issue, taking me away from work for a while. That would lose opportunities. The happened over and over, I spoke with his manager, they were defensive that the agent was the 'best for the job', my view was, he wasn't, as he was not doing his job and the info he sought from me was falling on deaf ears and many opportunities to recover my money were lost.

Now, the debtor has gone off radar and cannot be found, leaving me with no means to recover.

[R0b]

Come to think of it, perhaps I was a little hasty in my last response. There may be a few options but can't say without any sufficient guarantee that they will work, but something for you to consider but may be subject to what the law says on claims against bailiffs.

1. Having instructed the debt collection firm they would be acting as an agent, and all they did was instruct the bailiff company contracting on your behalf, so the contract will in fact be between yourself as the beneficiary and the bailiff company. If the collection firm contracted the bailiff personally, then that doesn't strike me as making sense, because a bailiff would only be engaged when the judgment creditor (you) is entitled to enforce the debt.

2. Even if the above argument doesn't work, you may be able to rely on the Contract (Third Party Rights) Act 1999. This law allows third parties who is not a party to the original contract to bring a claim against one of those parties. There are two elements that you need to prove in order to rely on it - first, you need to be expressly identified in the contract and second, the contract says that either a third party may enforce a term of the contract or alternatively, the contract term provides a benefit to that third party. I'm sure ploddertom can correct me if I am wrong but Form 293A is needed to transfer up to the High Court and it requires the Claimant's (Creditor's) name to be inserted along with Defendant information and claim number etc. So even if the contract was said to be between the debt collection firm, you could argue that your name listed as the creditor of the judgment is a clear indication that the enforcement is intended to benefit you.

3. An alternatively argument to the two above could be professional negligence. The general rule for negligence is that you cannot bring a claim for pure financial loss, but where one has assumed a responsibility towards you either in the course of services or a statement made which turns out to be false, then an exception is made to the pure financial loss rule. Normally you have to prove that there was an assumed responsibility towards you e.g. your name listed as the creditor, the bailiff coming directly to you for information.

There may be other overriding factors that I'm not aware of as I mentioned at the beginning such as the law on taking control of goods. Presumably there will be a process for enforcing goods such as sending a letter first, attending the property etc. and it may be that the bailiff has in all the circumstances acted reasonably but that will depend on the facts of your case.

Just as a side note, There is for some reason an EU case that I just can't remember and I am certain it related to the enforcement of a judgment which the bailiff failed to act on and the EU decided it was a breach of human rights (to enforce the judgment). Maybe I've got it wrong but it's bugging me. Anyway the above should be sufficient to get you started.

[deeepeee]

Come to think of it, perhaps I was a little hasty in my last response. There may be a few options but can't say without any sufficient guarantee that they will work, but something for you to consider but may be subject to what the law says on claims against bailiffs.

1. Having instructed the debt collection firm they would be acting as an agent, and all they did was instruct the bailiff company contracting on your behalf, so the contract will in fact be between yourself as the beneficiary and the bailiff company. If the collection firm contracted the bailiff personally, then that doesn't strike me as making sense, because a bailiff would only be engaged when the judgment creditor (you) is entitled to enforce the debt.

2. Even if the above argument doesn't work, you may be able to rely on the Contract (Third Party Rights) Act 1999. This law allows third parties who is not a party to the original contract to bring a claim against one of those parties. There are two elements that you need to prove in order to rely on it - first, you need to be expressly identified in the contract and second, the contract says that either a third party may enforce a term of the contract or alternatively, the contract term provides a benefit to that third party. I'm sure ploddertom can correct me if I am wrong but Form 293A is needed to transfer up to the High Court and it requires the Claimant's (Creditor's) name to be inserted along with Defendant information and claim number etc. So even if the contract was said to be between the debt collection firm, you could argue that your name listed as the creditor of the judgment is a clear indication that the enforcement is intended to benefit you.

3. An alternatively argument to the two above could be professional negligence. The general rule for negligence is that you cannot bring a claim for pure financial loss, but where one has assumed a responsibility towards you either in the course of services or a statement made which turns out to be false, then an exception is made to the pure financial loss rule. Normally you have to prove that there was an assumed responsibility towards you e.g. your name listed as the creditor, the bailiff coming directly to you for information.

There may be other overriding factors that I'm not aware of as I mentioned at the beginning such as the law on taking control of goods. Presumably there will be a process for enforcing goods such as sending a letter first, attending the property etc. and it may be that the bailiff has in all the circumstances acted reasonably but that will depend on the facts of your case.

Just as a side note, There is for some reason an EU case that I just can't remember and I am certain it related to the enforcement of a judgment which the bailiff failed to act on and the EU decided it was a breach of human rights (to enforce the judgment). Maybe I've got it wrong but it's bugging me. Anyway the above should be sufficient to get you started.

Rob, thank you so much, what you have written ties in nicely with what I have discovered. The agent 'hired' a bully boy solicitor who made a point of stating that I was not able to bring a claim due to the doctrine of Privity of Contract. That led me to a little research that stated that Privity of Contract was reformed in 1999 wit the Act you mention, the Contract (Third Party Rights) Act 1999. I am most certainly mentioned by name in the contract between the debt collection and the collection bailiffs and would be amazed if I had been precluded from making a claim within their contract of which I am the beneficiary.