Using a Bailiff

If you have obtained judgment in the small claims court and are seeking to enforce it, you may be considering a warrant of execution. A warrant of execution remains the most popular means of enforcement in the county court today. In effect the court makes an order that allows the seizure of money or goods that belong to your judgment debtor. A bailiff will then sell these items at auction in an attempt to recoup your money.

What is a Bailiff?

Bailiffs, also known as Enforcement Agents, work on behalf of creditors to collect money or goods from a debtor. This ranges from magistrates court fines, child support on behalf of the CSA, unpaid council tax, debts to private individuals and outstanding rent. Bailiffs have different powers depending on the type of debt they are seeking to recover.

Are Bailiffs Regulated?

Membership of the National Association of Enforcement Agents (NAEA) is not obligatory for bailiffs but there are rules that all bailiffs must all adhere to in relation to what they can and can’t do. Often people who work as private bailiffs also function as process servers (serving court documents and orders on people), tracing agents (finding people), and private detectives. It is important to distinguish bailiffs from debt collectors, who do not have any powers to enter a person’s home or to seize their possessions but who must follow OFT guidelines on dealing with debtors.

Warrant of Execution

Before embarking on this type of enforcement action you must be sure that your judgment debtor has possessions that can lawfully be seized. A bailiff cannot usually take items that are subject to a hire purchase agreement, and certain basic household items are exempt. It is worth noting that a bailiff cannot take items that are the tools of someone’s trade, for example a tradesman’s van is likely to be exempt. They cannot take goods that obviously belong to a child. If you do not know whether or not a person has any possessions that are capable of being seized, you should consider getting an Order to Obtain Information from the court first. Although there are penalties for not cooperating with this type of order (fine or imprisonment) debtors are obviously less likely to cooperate if they know their assets are at risk.

Bailiff’s Powers

Unless a bailiff is acting for the purpose of recovering income tax debts, they cannot forcibly enter a debtor’s home. They are entitled to call at any time they choose, although most should call only at a ‘reasonable’ time and not on Sundays, Bank Holidays, Christmas or Good Friday, unless consent has been obtained from the court. Bailiffs who are seeking to recover rent arrears may only visit between sunrise and sunset.

Simply opening the door to a debtor is not enough, although bailiffs do try to get around this by asking people whether they want to continue the conversation inside the house, ask to use the phone, or just by walking through the door when it is opened.

Notice Required

A bailiff who is enforcing a judgment from the small claims court is required to give the debtor seven days’ written notice that he or she is intending to visit the property. This gives the debtor a last chance to settle the debt. Once a bailiff is involved, debtors may refer the debt back to the county court in an attempt to have the warrant stopped (‘suspended’) in an attempt to have the instalments varied.

Fees

As with all forms of debt recovery there are fees involved in using a bailiff, but you may be exempt if you are in receipt of benefits or have a low income. For more details, check with your local county court office.

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