Walking Possession Order

[Guest]

Re: Walking Possession Order

If everything was as simple as you seem to infer all these forums would be awash with complaints of Bailiffs having forced entry. The reason they are not is quite simply because the Bailiffs gob is a lot bigger than what it allows him to do.

So that would be a no then.
This is quite an important point.
The draft propodalls say:

If a debtor breaches a controlled goods agreement, prior judicial authority should not be required to complete the enforcement action. To ensure that we have the correct balance it is our intention to amend the TCE Act to give enforcement agents a general power of reasonable force on re-entry in the following restricted circumstances:

where goods have been taken control of via a controlled goods agreement and have not been removed by the enforcement agent;

the debtor has failed to comply with the repayment terms of the controlled goods agreement; and

where the debtor has been given notice of the intention of the enforcement agent to re-enter the premises to inspect the goods or remove them for storage or sale

Now if as you say currently bailliffs require additional judicial authority this would be a major step backwards.

So if this is true please show the authority.

Peter

[ploddertom]

Re: Walking Possession Order

To make a forced re-entry the Bailiff must have a valid prior levy. Also as mentioned previously Khazanchi v Faircharm Investments, the Court of Appeal stated that force may only be used to re-enter if the bailiff can show he is being deliberately excluded. As also said in an earlier post he then must provide details of when he intends to return. County Court Bailiffs also need the permission of a District Judge and in many cases an indemnity from the Creditor.

Best practice is that advised in Post 17 as a Bailiff otherwise may leave himself open to charges of Burglary, Trespass etc and could find himself sued for wrongful interference with goods or a spell at HM Leisure.

You must remember that the powers of a Bailiff are actually very weak. Even if invited in he could then be asked to leave and if he does refuse he commits trespass and can be arrested.

[Guest]

Re: Walking Possession Order

To make a forced re-entry the Bailiff must have a valid prior levy. Also as mentioned previously Khazanchi v Faircharm Investments, the Court of Appeal stated that force may only be used to re-enter if the bailiff can show he is being deliberately excluded. As also said in an earlier post he then must provide details of when he intends to return. County Court Bailiffs also need the permission of a District Judge and in many cases an indemnity from the Creditor.

Best practice is that advised in Post 17 as a Bailiff otherwise may leave himself open to charges of Burglary, Trespass etc and could find himself sued for wrongful interference with goods or a spell at HM Leisure.

You must remember that the powers of a Bailiff are actually very weak. Even if invited in he could then be asked to leave and if he does refuse he commits trespass and can be arrested.

HI

Thanks for that.
So it is only County Court bailiffs that need judicial authority for re-entry? Is there authority for this.

You say breach of best practice may leave him open to criminal charges could you clarify.

Does this mean that high court and majistrate court bailiffs can re enter without judicial authority.

You must tremember we are talking about re-entry, the bailiff has permission to force re-entry given him by the debtor on the WPO.(Luvel v Oleary[1933]

The ability to force re entry would hardly be effective if the debtor could just tell him to go. Much as i wish it were otherwise.

Peter

[evilhamster]

Re: Walking Possession Order

Im posting this out of interest after having read so many posts on here about the behavoiur and abuse of their powers by some or maybe all bailiffs.the one thing i have not read is what happens or has happened to anyone who has goods placed on the WPO by a bailiff and when the bailiff returned to take the goods they have been removed from the property my feeling would be without photographic evidence and if the debtor has refused to sign the order what could the bailiff do im sure not everone signs these orders and after reading of abuses of powers by bailiffs im sure this has happened .Any experience anyone

if there is no signed wpo or photographic evidence surely the bailiff can't even prove they gained entry or that the listed items where even present as the bailiff could have made up the list based on what they would expect to find in that type of property

[Guest]

Re: Walking Possession Order

if there is no signed wpo or photographic evidence surely the bailiff can't even prove they gained entry or that the listed items where even present as the bailiff could have made up the list based on what they would expect to find in that type of property

No if there is not a signed WPO the bailiff cannot torce re-entry.

Peter

[ploddertom]

Re: Walking Possession Order

HI

Thanks for that.
So it is only County Court bailiffs that need judicial authority for re-entry? Is there authority for this. I assume it may be listed in the County Courts Act or similar

You say breach of best practice may leave him open to criminal charges could you clarify. Burglary, Criminal damage, Trespass, Wrongful interference with goods

Does this mean that high court and majistrate court bailiffs can re enter without judicial authority. see below

You must tremember we are talking about re-entry, the bailiff has permission to force re-entry given him by the debtor on the WPO.(Luvel v Oleary[1933] - not a good authority to rely on as this may be held to have been signed under duress (threat of removal of goods) and can be held therefore to be questionable - superseded by Khazanchi v Faircharm Investments 1998.

The ability- it isn't so much the ability but the threat, Joe Public knows very little and we only see a very small minority here - to force re entry would hardly be effective if the debtor could just tell him to go. Much as i wish it were otherwise. Most Bailiff are not trained and actually know very little of what they can & cannot do & many when challenged huff & puff then walk away.

Peter

High Court
A HCEO only has the same rights of entry to residential premises as an ordinary Bailiff but is more likely to remove goods immediately especially if a car is present. Is very unlikely to remove household items (unless antiques) because of the costs involved and the time taken.

Entry to commercial premises is different in that he is allowed to force entry from the beginning providing the premises are not attached to the Debtors residence eg a shop with flat above. Most commercial premises are open to the public and as such he can just walk in (especially a shop). Again most HCEO's will remove immediately only returning to those where heavy machinery or similar that is not easily disposed of may be present.

Council Tax
To force re-entry needs a valid levy initially and for him to be excluded on re-attending. Most Councils have a clause within their Contract/SLA whereby the Bailiff has to gain their permission first and also an Order permitting them to force re-entry and only for those who may be proved to be wilfully avoiding payment.

Magistrates Court
Although the power is there it is very rarely used as yet again it is for those who make a "profession" of racking up fines and not paying. Bailiffs have adapted the Domestic Violence, Crime and Victims Bill, which contained a power to force entry in connection with unpaid fines imposed for criminal offences to their own interpretation. The intention was for those who just stuck 2 fingers up to authority but Bailiffs say it applies to everyone.

As said previously if they think they could just do this willy nilly then these forums and others would be full. The fact that they are not I think says a lot. We know the Bailiff says anything he can think of as a means to gaining what he wants, he doesn't want goods he wants cash and if people think he is going to attend complete with sledgehammer it is that threat that makes them pay.

The Police may only attend if a Breach of the Peace is threatened - although there is a permission for them to help a HCEO in the execution of his duty. The Police are badly informed & trained in these matters and just because a Bailiff says he is working for the Court then the woodentops think they are on the same side.

[Guest]

Re: Walking Possession Order

HI
I thought i would try an clarify the issue.
I think it has been clouded, the question was , do Bailiffs have to seek judicial authority to re enter property when they are in posession of a WPO.

I thought i would put the question to Phil Evens( former chair of the bailiff reform group) Who i consider to be an authority on the subject. I am sure he will not mind me showing the corespondence on here .

I wrote

HI Phil



Thanks for that, i wonder if i could ask you a question?

I have been looking at the question of forcible re-entry, and the requirement for judicial authority to re enter when the bailiff has a signed WPO, am i right in assuming that currently bailiffs do not require to consult the court in order to re-enter.



Peter

He replied

Hi Peter,

You are correct: bailiffs do not have to get permission to force re-entry. However….

It’s not the WPA (Walking Possession Agreement) that grants the right to forced re-entry but the levy (initial seizure), so that a bailiff can force re-entry to check on or remove goods previously seized and already ‘in the custody of the law’. That said, the WPA affirms the levy and so bailiffs feel on safer ground if they have one, which is why the often say they are forcing re-entry under the WPA.

This situation was, alas, muddled a bit in the late 1990s when sheriffs’ officers stated that they had ‘taken’ walking possession and the court affirmed that that could be done. So, for the first time, you had walking possession without agreement! That didn’t change the initial premise but what that case did, however, was to state that bailiffs could not assume that when they found locked premises that could assume that they were locked against them and so force re-entry without further ado (as had been their custom for over 100 years). The court said that bailiffs had to assume that premises were locked in the normal course of affairs, state when they intended to remove the goods and if on that occasion they found the premises locked could force entry. As I’m away from home I can’t recall the name of their case but I think it was a Court of Appeal judgment in 1998.

Best wishes,

Philip

Peter

[Guest]

Re: Walking Possession Order

I believe that answers the question.

I was 90% sure tht this was the case, i needed clarification in order to completer the consultstion document which raises the subject.

Ploddertom, whilst i agree with most of what you say, i needed the legal position clarifying rather than the subjective opinion.

Pedter

[charitynjw]

Re: Walking Possession Order

Khazanchi & Anor v Faircharm (1998)

http://www.bailii.org/ew/cases/EWCA/Civ/1998/471.html

[Sir Vere Brayne d'Emmidge]

Re: Walking Possession Order

Let's not forget that people pursued by bailiffs have been naughty, either by having broken the law, fined and not paid or not contributing to the cost of running their local council.

Big difference between debt collectors and Enforcement Agents, and even bigger difference if it is a Distress Warrant issued by the Her Majesty's Court Services (criminal issues) or a Liability Order from a County Court (civil matter).

Lots of information can be found here: Bailiff,warrant of execution,seizure,Replevin,Impounding,Financial warrant,PND’s,Distress Warrant

99.9% of people subject to bailiff action have only themselves to blame, the rest could be down to (in)human error by the Courts . . . .

Yes, I know that some bailiffs stretch the truth when speaking to defendants, but fortunately these dubious characters are, slowly but surely, weeded out of the system.

[labman]

Re: Walking Possession Order

Yes, I know that some bailiffs stretch the truth when speaking to defendants, but fortunately these dubious characters are, slowly but surely, weeded out of the system.

PMSL!!!!!!! Sorry, but that really is the biggest load of carp I think I've ever read on these forums.

I don't know whether you have ever heard the argument that two wrongs do not make a right?

Yes, these people may have committed a civil, or possibly minor criminal offence. Does this mean that they should then be the subject of an even worse offence against them by bailiffs?

With regard to your link, I think you will find lots more information can be found in the various Acts of Parliament, the National Standards for Enforcement Agents, a variety of specialist bailiff books, etc...

Try reading them, you'll become more informed not only of what is lawful, but also of the massive problem facing anyone trying to regulate these 'people' who consistently fail to abide by the aforementioned legislation and often have scant knowledge of the law governing themselves.

I must however thank you sincerely for making me laugh - 'stretch the truth' now has a whole new meaning to me.

"I didn't murder him your Honour, I merely slipped with my knife while partaking of caviar and champagne."

"I didn't steal his car your Honour, I merely borrowed it for a few years."

"It wasn't me caught on film being evil to that lady, it was the stunt double they use when I'm in Hollywood pursuing my other career as an actor."

Stretching the truth - a whole new version of the English language is evolving thanks to Enforcement Officers lol. Even more amusing is the fact this wonderful new language is an etymological revolution, and most bailiffs would not even know what that was.

Priceless - thank you!

[Mrs James]

Re: Walking Possession Order

Well said, Labman :clap2:

[CleverClogs]

Re: Walking Possession Order

The draft propodalls say:

If a debtor breaches a controlled goods agreement, prior judicial authority should not be required to complete the enforcement action. To ensure that we have the correct balance it is our intention to amend the TCE Act to give enforcement agents a general power of reasonable force on re-entry in the following restricted circumstances:

where goods have been taken control of via a controlled goods agreement and have not been removed by the enforcement agent;

the debtor has failed to comply with the repayment terms of the controlled goods agreement; and

where the debtor has been given notice of the intention of the enforcement agent to re-enter the premises to inspect the goods or remove them for storage or sale

Now if as you say currently bailliffs require additional judicial authority this would be a major step backwards.

Please define "backwards".

If you respond, please try to consider who would be adversely affected by such a procedure and how much reliance can generally be put on their veracity.

[bluebottle]

Re: Walking Possession Order

Let's not forget that people pursued by bailiffs have been naughty, either by having broken the law, fined and not paid or not contributing to the cost of running their local council.

Big difference between debt collectors and Enforcement Agents, and even bigger difference if it is a Distress Warrant issued by the Her Majesty's Court Services (criminal issues) or a Liability Order from a County Court (civil matter).

Lots of information can be found here: Bailiff,warrant of execution,seizure,Replevin,Impounding,Financial warrant,PND’s,Distress Warrant

99.9% of people subject to bailiff action have only themselves to blame, the rest could be down to (in)human error by the Courts . . . .

Yes, I know that some bailiffs stretch the truth when speaking to defendants, but fortunately these dubious characters are, slowly but surely, weeded out of the system.

If only that were true. There is a case over at CAG of Ross and Roberts bailiffs besieging a seriously-ill woman's home for five hours, yes, five hours, lying to her and the police about their powers. Their bullying and intimidation was recorded on a phonecam and witnessed by independent witnesses. A police sergeant who attended, went back to the police station, checked and found the bailiffs had lied to them. The sergeant returned and ordered the bailiffs to leave. Not content with lying and trying to hoodwink the police, the bailiffs damaged a vehicle belonging to someone other than the debtor. I was a front-line police officer and have no time for certificated bailiffs who lie, cheat, bully or intimidate. They are scum. The sooner they are de-certificated and the law tightened, the better. Also, there are e-petitions out calling on the government to crack down on bailiffs and for the police to get tough with bailiff and HCEO misconduct.

[cards down]

Re: Walking Possession Order

Let's not forget that people pursued by bailiffs have been naughty, either by having broken the law, fined and not paid or not contributing to the cost of running their local council.

Big difference between debt collectors and Enforcement Agents, and even bigger difference if it is a Distress Warrant issued by the Her Majesty's Court Services (criminal issues) or a Liability Order from a County Court (civil matter).

Lots of information can be found here: Bailiff,warrant of execution,seizure,Replevin,Impounding,Financial warrant,PND’s,Distress Warrant

99.9% of people subject to bailiff action have only themselves to blame, the rest could be down to (in)human error by the Courts . . . .

Yes, I know that some bailiffs stretch the truth when speaking to defendants, but fortunately these dubious characters are, slowly but surely, weeded out of the system.

New thread.......................... "Bailiff infiltrates LB" :tung: