According to a Citizen's Advice Bureau briefing in 2006, the use of bailiffs is one of the most effective and controversial methods of debt collection available in English law. Apart from the monetary value sought, embarrassment and public relations considerations also need to be borne in mind especially if the bailiff has arrived unannounced in retail or trading premises in view of customers or clients. What should an occupier do when faced with a bailiff?
Remit of power
A bailiff is authorised to collect a debt on behalf of a creditor. A bailiff can enter premises to seize goods and sell these at public auction, with the proceeds taken by the creditor to settle the debt. This process is known as 'distress'.
Many bailiffs will be 'certificated', which means that they have provided references and paid a bond of £10,000 to the county court or have indemnity insurance for this amount. Certification allows bailiffs to collect additional types of debt - for example, a bailiff must be certificated to collect rent arrears.
The law relating to distress combines different principles, and the rights and procedure that the creditor will have to follow will differ depending on the type of debt owed.
Business rates: the creditor (local authority) must send a statutory reminder of money owed, and obtain a magistrates' court liability order or a distress warrant before sending a bailiff to collect.
The bailiff can only enter the premises at a reasonable time – that is, within normal office hours – and must provide you with full written details of the liability. The bailiff cannot force entry but, once in, can use force.
You should pay the bailiff if you accept that the rates are due. If disputed, take immediate legal advice to challenge the debt.
Rent arrears: the creditor (landlord) can instruct a certificated bailiff directly. The bailiff is only allowed to seize property against undisputed, ascertained sums defined as 'rent' under the lease, and can only seize goods at the premises the lease relates to. He can only enter between sunrise and sunset, and must provide you with his certificate (always) and his warrant (if you request it).
The bailiff is not allowed to force entry but may enter the premises through an open window or climb a fence. Once in, he can use force.
You should pay the bailiff if you accept the rent is due, but not any costs. If disputed, take immediate legal advice to challenge the debt and claim damages for the wrongful removal of goods if any are taken.
Other debts: the creditor can obtain a civil judgment before instructing a County Court Bailiff or High Court Enforcement Officer to enforce the judgment. The bailiff can only enter at a reasonable time (normal office hours) but not on a Sunday, Good Friday or Christmas Day unless the court permits it.
The bailiff should provide you with a copy of his empowering warrant or writ, and must give details of the debt. If he does not provide you with a copy of the writ, you should ask for this. Forced entry is permitted, and further force can be used only inside.
You should pay if you accept that the debt is due, but not any costs. If disputed, take immediate legal advice to challenge the debt and apply to the court to set aside the underlying judgment rather than challenging the bailiff directly.
The creditor may be liable for trespass and damages for wrongly entering your premises and seizing your goods.
Seizing occupiers' goods
Most items can be seized, excluding:
- goods substantially incorporated into the premises – for example, sinks and radiators;
- third-party goods - for example, rented items or fixtures and items that belong to a landlord;
- items being used at the time, with some exceptions.
Not only goods or stock can be seized. In some situations - for example, rates arrears - a bailiff can seize the tools of the trade and manufacturing machinery, and because these items generally have more value they are more likely to be seized where few other items are of value.
A bailiff does not have to physically remove the goods from the premises to seize them. Instead, he may mark the items as seized – known as a 'walking possession agreement' – or only inform the occupier that they are seized. In either case, the occupier must not interfere with the goods.
A bailiff may send a notice giving seven days to pay, although there is no requirement for this. An occupier might use this advance warning as an opportunity to remove or conceal goods before the bailiff seizes them. Occupiers would be wise to use this time to contact the creditor to avoid the bailiff's visit.
What should an occupier do if a bailiff arrives at its premises?
An occupier should refuse to open its premises to a bailiff unless he can provide a court warrant or writ, depending on the type of debt. If he provides either of these, he may force entry so he should be allowed in to avoid the risk of damage. If he cannot provide either document the occupier is not obliged to allow entry, and force cannot be used.
If a bailiff is let in – regardless of whether he has a court warrant or writ – it will be impossible to force him to leave. Care should be taken in letting him in for any reason, for example to discuss the matter or use the telephone. Once in, a bailiff may remain on the premises for as long as he needs, and after this may use force to re-enter without permission.
After several visits without gaining entry, a bailiff may give up and return the warrant to the court or creditor.
If a bailiff calls, an occupier should:
- insist on seeing the bailiff's identification and evidence of his authority – if this is not provided, he should be asked to leave;
- request documentary evidence of the debt;
- ask for the opportunity to call the creditor before the bailiff seizes its goods;
- consider whether the debt should be settled on the spot;
- make an accurate and detailed record of any goods that the bailiff seizes, ideally including their condition;
- seek legal advice to avoid the goods being auctioned at short notice.
An occupier should not:
- allow the bailiff into its premises if it can avoid it;
- attempt to evict the bailiff once already on its property;
- interfere with goods that the bailiff has seized;
- threaten the bailiff;
- misinform the bailiff – if any goods are owned by a third party, for example, then say so or risk a claim from the rightful owner.
Challenging the bailiff
It is often the underlying debt that needs to be challenged and not the bailiff, who relies on a warrant or writ to be able to enter premises and seize property. It should be borne in mind that:
- any mistake in the documentary evidence of the debt supplied by the bailiff is usually insufficient to make the bailiff a trespasser;
- attempting to evict a bailiff may amount to a criminal assault, even where the occupier believes the bailiff is a trespasser.
For these reasons, once a bailiff has entered the premises it is safer to make an intermediate legal challenge rather than attempt to physically stop him. If the legal challenge is successful, the goods or their value may be recovered as well as damages for their wrongful removal. It is important to act quickly as an occupier's position may be affected if it delays.
Complaints about the bailiff's conduct
Bailiffs are expected to follow the National Standards for Enforcement Agents (NSEA), which sets out guidelines for the way bailiffs should behave when seizing property. There are no sanctions if the NSEA guidelines are not followed, however it has been endorsed by local and central government as well as by trade bodies.
If a party feels that it has cause to complain, it can do so to the creditor that instructed the bailiff or the bailiff's trade body. The main trade bodies are the Association of Civil Enforcement Agencies and the Enforcement Services Association.
With certificated bailiffs, complaints can be addressed to the court that issued the certificate. The courts also have the power to revoke or cancel a bailiff's certificate.
Occupiers should seek legal advice if they are concerned about any of the issues raised in this guide.