Thank you to all who took part in our webinar at the beginning of July of the enforcement of High Court writs of control. We were asked a good number of questions, and answer these in this article.
Does the £5,000 threshold include everything, i.e. solicitor’s costs, not just the base amount you have sued for?
The £5,000.00 threshold is the MAXIMUM you can instruct a County Court Bailiff to enforce. This value would be the total judgment amount so yes, if your solicitor costs etc. are included within the judgment, then these are included in the threshold. Please remember that HCEOs can enforce any judgment valued at £600 and above.
Do you think the new pre-action protocols will affect High Court Enforcement Officers?
The majority of judgments are by default and, unless the debtor is a sole trader, the protocol does not apply to business-to-business debts. In these cases, there will be no change.
Where the protocol applies, and the debtor engages with the creditor, the new protocol will offer an opportunity for the parties to resolve any underlying issues preventing payment. The protocol’s aim is also to encourage the agreement of a reasonable repayment plan.
This additional time may delay the ability for the creditor to obtain an early judgment, thus delaying the enforcement process.
Where the creditor has not followed the pre-action protocol, there may be an opportunity for the debtor to apply to the court to stay the enforcement.
How many times can the enforcement stage 2 fee be applied to the debtor?
All levels of fees can only be applied to the debtor once. However, if there is more than one active matter against the debtor, then at enforcement stage 1 and sale stage, the 7.5% fee can be charged across the total balance outstanding to creditors.
How do you determine whether somebody is of apparent authority?
This would be down to the enforcement agent’s discretion. For example, if the EA was to attend a high street store and make contact with a sales advisor, then the EA would ask to speak with the store manager. Similarly, in a restaurant the EA would look to speak with the restaurant manager.
Can a child give authorisation to a person over the age of 18 to enter into a Controlled Goods Agreement?
We are not able to take enforcement proceedings against a child. Generally, for any matters against a child, there would be a listed litigation friend of legal age of whom action could take place against.
How does the exempt goods procedure apply to office furniture?
The exempt goods in relation to furniture relates only to household items as we are required to ‘satisfy the basic domestic needs of the debtor and every member of the debtor’s household’. If the office furniture is required in relation to the specific running of the business by a sole trader, then this would then be classed under tools of the trade, of which the £1,350.00 limit would then apply.
Are you able to seize dogs if they are being used for breeding purposes?
Providing we have reasonable belief that the animals are being used for breeding purposes, then yes we are able to seize them. We are also able to seize horses and any other animal which may hold value. The only animals restricted to enforcement are domestic pets, assistance dogs (including guide dogs, hearing dogs and dogs for the disabled) sheep dogs and guard dogs.
Is the creditor informed of where the public auction will take place?
We will inform the creditor of the date of sale and other basic information; however, we wouldn’t automatically include the location. This information is available and should the creditor request this, we would happily provide such details.
What happens where an enforcement agent attends premises and the debtor claims to be insolvent?
If the debtor is a company, then various company checks can be undertaken from our offices in order to establish the current status of the company. If the debtor is an individual, then similar checks can be carried out using the Insolvency Register. On all occasions, our EAs would ask for documentary evidence of such insolvency. Often debtors are confused between dates of insolvency and find that the matter we are enforcing came after the insolvency.
Can you explain how the HCEO would determine whether a debtor has a vulnerability or is only claiming to have one?
Firstly, our enforcement agents are provided with specific training in both dealing with a potentially vulnerable debtor and spotting the signs of vulnerability, as this may not always be apparent. In cases where we have received a claim of vulnerability direct from the debtor, we would request that relevant proof be provided, such as a doctor’s letter or medical history.
In some cases, should the vulnerability indeed be easily identifiable and appear to be severe, our EA would withdraw immediately at that point. As per the National Standards, we do not always have to completely withdraw from enforcement, however we must ensure that further adequate time is provided for the debtor to gain assistance and advice on the exercise of enforcement powers.
Can you recommend how best to enforce a judgment for a sum under £600?
The main ways to enforce a judgment valued at under £600 would be to instruct the County Court Bailiffs or a debt collection agency.