Debt Advice Handbook (13th edition)Chapter 14: Bailiffs 2. When bailiffs are used
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2. When bailiffs are used
Civil court judgments and orders
An adviser may encounter three different types of order being enforced by taking control of goods:
    •High Court judgments (see below);
    •county court judgments (see below);
    •road traffic penalties (see here).
High Court judgments
The High Court uses bailiffs (High Court enforcement officers) to enforce the following judgments by taking control of and selling goods:
    •High Court judgments of any amount;
    •county court judgments over £5,000 for debts that have not arisen from an agreement regulated by the Consumer Credit Act 1974 (see here);
    •county court judgments between £600 and £5,000 for debts that have not arisen from an agreement regulated by the Consumer Credit Act 1974 if the creditor chooses to transfer them to the High Court for enforcement.
High Court enforcement officers are private bailiffs. They have similar powers to county court bailiffs, but are preferred by some creditors because, being private bailiffs, they are considered more effective. They are authorised by the Lord Chancellor, rather than holding a county court certificate like other private enforcement agents. However, their staff are probably also certificated bailiffs.
County court judgments
HM Courts and Tribunals Service employs bailiffs in each county court hearing centre (county court bailiffs), responsible for enforcing all warrants in that court’s area. The bailiff may enforce the following judgments by taking control of and selling goods:
    •all judgments based on agreements regulated by the Consumer Credit Act 1974;
    •all judgments under £600;
    •any other judgment up to £5,000, unless the creditor chooses to transfer it to the High Court for enforcement.
Road traffic penalties
Local authorities may use private bailiffs to enforce unpaid orders for road traffic penalties – eg, parking charges, congestion charges and traffic violations. Any sum payable is recoverable by a warrant of control as if it were payable under a county court order and is also regulated by the Civil Procedure Rules.1Part 75 CPR
 
1     Part 75 CPR »
Commercial rent arrears
Private landlords cannot use bailiffs to take control of goods for rent arrears in residential properties. They must use repossession proceedings (see Chapter 12).
If there are rent arrears for commercial premises (eg, shops, offices and factories), landlords can initiate taking control of goods without preliminary court action. This process is called ’commercial rent arrears recovery’.
The following principles apply.
    •The exact nature of the business tenancy is not important. However, the lease between the landlord and tenant must be in writing.
    •Only commercial premises are covered. If any residential accommodation is attached, such as a flat over a shop, the commercial rent arrears recovery process cannot be used and other remedies must be sought.
    •Only rent in the narrow sense of the term may be recovered in this way. If the lease also makes provision for payment of service charges, insurance and other costs and these fall into arrears, these must be enforced by other means, such as forfeiture proceedings.
    •The commercial rent arrears recovery process only applies to current tenancies. If the lease has been terminated, the procedure is not available.
    •A minimum amount of arrears, equivalent to seven days’ rent, must be due before a landlord can instruct bailiffs. However, as most commercial leases are payable quarterly or perhaps monthly, this restriction is unlikely to be relevant.
    •A client can set off against her/his rent arrears any amounts owed by the landlord for breach of the lease (such as disrepair) that have been the subject of a successful claim for damages. If this is the case, s/he can apply to a court to cancel, or delay, commercial rent arrears recovery.
Provided the above conditions are met, the landlord can issue a ‘warrant of control’ (see here and here) to a bailiff. Thereafter, the process is identical to all the other debts described in this chapter.
Other debts
Many public bodies have a statutory power to take control of goods if money is owed to them.
Local taxes
Both council tax and business rates are enforceable by taking control of and selling goods. Local authority officers or private bailiffs are used, provided they are certificated.
Debts to HM Revenue and Customs
HM Revenue and Customs can take control of goods to collect any unpaid taxes (both income tax and indirect taxes such as VAT), class 1 and 4 national insurance (NI) contributions and overpayments of tax credits. A private bailiff may attend, but only to assist and advise.
Magistrates’ court orders
Taking control of goods may be used by magistrates’ courts as a way of enforcing orders for unpaid civil debts (ie, tax and NI contributions) and damages, as well as compensation orders, costs and fines,
including those from the Crown Court, Court of Appeal and Supreme Court. Many courts restrict the use of warrants of control to fines and fixed penalty offences (eg, for driving offences) or to sums under £100 to £150.
Magistrates’ courts use either their own civilian enforcement officers or firms of private bailiffs to collect unpaid fines. These bailiffs are appointed by HM Courts and Tribunals Service.
Child support maintenance
The Secretary of State for Work and Pensions can take control of goods to collect arrears of child maintenance due to the Child Support Agency or Child Maintenance Service under a magistrates’ court liability order. Private bailiffs are used.
The enforcement of child support arrears in this way was challenged by a non-resident parent on two grounds.1Brookes v Secretary of State for Work and Pensions and Child Maintenance and Enforcement Commission [2010] EWCA Civ 420 He argued that use of bailiffs could prejudice the welfare of the children in his household and that it was a violation of Article 8 of the European Convention on Human Rights (protection of home and family life). The Court of Appeal rejected both his arguments and confirmed that the arrears were an unpaid debt and it was reasonable to seek to enforce its recovery. There was already a charging order against his home and the court decided it was preferable for the family to face the loss of non-essential household items than to face the loss of their home.
 
1     Brookes v Secretary of State for Work and Pensions and Child Maintenance and Enforcement Commission [2010] EWCA Civ 420 »