a. That the rules governing distress be set out clearly in one place, preferably in a statute, and
b. The differences between the rules governing distress for different types of debt should, where possible, be eliminated.
To minimise the risk of a successful ECHR challenge, the regime governing distress by bailiffs be set out clearly in one place, preferably in a statute and should contain the following features:
a. The rights of the creditor, and the debtor's rights to challenge the distress at the relevant stages, should be set out consistently and clearly.
b. There should be sufficient time for the debtor, or a third party who claims an interest in the goods, to apply to court to prevent sale of the goods at an appropriate stage in any distress proceedings.
c. The types of goods against which distress may be levied, and those which are exempted, should be set out clearly and should be consistent in all cases.
d. The circumstances in which the debtor, or a third party who claims an interest in the goods, can prevent a sale should include rules which ensure that the sanction is not disproportionate to the debtor's failure to meet his or her obligations (for example, the sale of goods which are difficult or expensive to replace to pay off a very small debt).
e. A clear statement of the remedies for wrongful distress.
a. Debtors be given written notice that enforcement may follow and of the forms of enforcement that might be adopted unless the creditor has reasonable grounds for believing that if notice is given the debtor will remove or dispose of assets.
b. The notice, which may be contained in the notice of a judgment, should state the consequences of the bailiff calling, the costs involved, and complaints procedures. As well as informing the debtor, notice will give him or her an opportunity to seek advice and, if possible, to make arrangements for payment by instalments before any costs of enforcement are incurred.
c. The period of notice be seven days.
d. Consideration be given as to whether commercial debtors should be treated differently.
e. Consideration be given to a method of confining distress in residential premises to those cases where:
(i) other methods of enforcement such as attachment of earnings have not worked or are not available, and
(ii) there is a reasonable likelihood that sufficient distrainable goods are in the premises to cover the expenses and 10% of the debt or £50, whichever is the lesser.
a. All distrainors shall be required to carry an appropriate identity card in a prescribed form and to show it to the debtor or the person who appears to be in control of the premises as soon as is practicable.
b. The identity card should contain:
(i) the name of the bailiff,
(ii) the name and a contact number of the bailiff's employer, and
(iii) a photograph.
c. It should be stated on the identity card that the bailiff is authorised in the prescribed manner to execute warrants as soon as is practicable.
All forms of distress should be subject to uniform requirements regarding the information to be furnished to the debtor. On entering the premises and before starting to take legal control of goods, the distrainor should be required to provide the debtor with a document stating:
a. the statutory liability or judgment which has given rise to the debt,
b. the legislative provision authorising the distress, the amount for which the distress warrant was issued,
c. the charges made in relation to it,
d. how payment can be made,
e. that the goods will be sold if the debt and costs are not paid, and
f. in outline any rights of appeal or avenues of complaint the debtor may have.
After taking legal control of goods the distrainor should be required to provide the debtor with a document stating what goods have been seized, i.e. to provide an inventory.
Where what is now called a walking possession agreement has been entered into, a document containing the terms should also be provided to the debtor.
a. A bailiff levying distress should be required to direct the debtor to inform the bailiff of any petition for bankruptcy and whether the goods are (i) exempted from distress, and (ii) subject to a hire purchase agreement.
b. Where goods not belonging to the debtor are seized, the debtor should be required to inform the owner of such goods that the distraint has taken place and to tell that person to write to the person levying distress.
a. Unless the court orders otherwise the execution of a writ of execution or a warrant of execution must commence between eight o'clock in the morning and eight o'clock in the evening, but that if it is so commenced but it may continue outside those hours until the levy is completed.
b. Persons holding themselves out as conducting any profession, trade or business during hours which are, wholly or partly, outside this period are subject to a levy at premises used for the conduct of the profession, trade or business during trading hours.
a. Unless the court orders otherwise a writ of execution or a warrant of execution must not be executed on a public holiday.
b. Persons holding themselves out as conducting any profession, trade or business on a public holiday are subject to a levy at premises used for the conduct of the profession, trade or business during trading hours on that public holiday.
a. Entry should only qualify as peaceable if it is effected by normal means. If not, it should be treated as forcible entry.
b. "Normal" entry means entry by unlocked outer doors, including French windows, but not through windows, and includes normal access to the outer door of premises across a drive, a yard, or a garden.
c. Where the premises to be entered is a flat in an apartment block, the outer door should be considered to be the door of the flat, unless access to the door of the flat from the outer door of the apartment block is restricted, such access should fall within the concept of ‘normal' entry.
Any new statutory regime governing forcible entry, should make provision for forcible re-entry. In the case of domestic premises, while the argument for requiring prior judicial authority is weaker in a case in which the bailiff can satisfy the strict requirements laid down in Khazanchi and McLeod's case, there is a strong case for uniformity of treatment of cases of forcible entry to domestic premises.
At present a sheriff executing a writ may forcibly enter a barn or any other building which is not connected with or within the curtilage of a dwelling house. In any new statutory regime governing forcible entry, this should be governed by the rules concerning forcible entry to non-domestic premises.
The position of forcible entry to third parties' premises should be assimilated into any new statutory regime. There is a strong case for requiring prior judicial authority for any forcible entry to third parties' premises.
1 The following articles belonging to a debtor shall be exempt from distress at the instance of a creditor in respect of a debt due to him by the debtor—
a. clothing reasonably required for the use of the debtor or any member of the debtor's household;
b. implements, tools of trade, books or other equipment including a car or van reasonably required for the use of the debtor or any member of the debtor's household in the practice of the debtor's or such member's profession, trade or business, not exceeding in aggregate value £1,000 or such amount as may be prescribed in regulations made by the Lord Chancellor;
c. medical aids or medical equipment reasonably required for the use of the debtor or any member of his household;
d. books or other articles including a computer reasonably required for the education or training of the debtor or any member of the debtor's household not exceeding in aggregate value £1,000 or such amount as may be prescribed in regulations made by the Lord Chancellor;
e. toys for the use of any child who is a member of the debtor's household;
f. articles reasonably required for the care or upbringing of a child who is a member of the debtor's household.
2 The following articles belonging to a debtor shall be exempt from distress if they are at the time of the distress in a dwellinghouse and are reasonably required for the use in the dwellinghouse of the person residing there or a member of the household—
a. beds or bedding;
b. household linen;
c. chairs or settees;
d. tables;
e. food;
f. lights or light fittings;
g. heating appliances;
h. curtains;
i. floor coverings;
j. furniture, equipment or utensils used for cooking, storing or eating food;
k. refrigerators;
l. articles used for cleaning, mending, or pressing clothes;
m. articles used for cleaning the dwellinghouse;
n. furniture used for storing-
(i) clothing, bedding or household linen;
(ii) articles used for cleaning the dwellinghouse; or
(iii) utensils used for cooking or eating food;
o. articles used for safety in the dwellinghouse or of household articles.
3 The Lord Chancellor may by regulations add to the list set out in subsection (2) above, or delete or vary any of the items contained in that list.
If, on an application made within 7 days after the date of the execution of the warrant—
a. by the debtor or any person who owns a seized article in common with the debtor; or
b. by any person in possession of an article seized,
the [district judge] is satisfied that the article is exempt from distress, an order releasing the article from the distress shall be made.
If utilities fittings are not fixtures, they should be specifically exempt from seizure.
Any new statutory provision should authorise the seizure of money, banknotes and bills of exchange, promissory notes, bonds, specialties and securities for money.
a. As a general rule only the goods of the debtor should be liable to seizure.
b. Joint property should be liable to seizure but the distrainor should only acquire an interest in the debtor's share, and only that interest can be sold. If the entire interest in the goods is sold, the joint owner should be paid for his or her share out of the proceeds of sale before either the enforcement costs or the debt are satisfied.
c. If, on an application made within 7 days after the date of the execution of the warrant by the debtor or any person who owns a seized article the [district judge] is satisfied that the article is exempt from distress, an order releasing the article from the distress shall be made.
a. Hired goods should not be liable to seizure.
b. Goods purchased on hire purchase terms should not be liable to seizure unless the debtor has acquired title at the time of the seizure. If such goods are lawfully seized the person who has sold the goods to the debtor on hire purchase terms should be paid for his or her share out of the proceeds of sale before either the enforcement costs or the debt are satisfied.
c. If, on an application made within 7 days after the date of the execution of the warrant by the debtor or any person who owns a seized article but has hired it to the debtor or sold it to him or her on hire purchase terms, the [district judge] is satisfied that the article is exempt from distress, an order releasing the article from the distress shall be made.
a. The distinction between seizure and impounding should be abolished and replaced by a single simple process called "taking legal control" of goods after entry.
b. After entry the distrainor must
(i) indicate clearly that legal control is being taken over the goods, and,
(ii) unless impeded by the debtor, take an inventory and provide the debtor with a copy of the inventory.
c. Consideration should be given to requiring the distrainor to provide the debtor with an estimate of the total re-sale value of the goods over which legal control has been taken and to prevent him or her proceeding with the levy where there are insufficient distrainable goods on the premises to cover the expenses and 10% of the debt or £50, whichever is the lesser.
There should be three forms of legal control of goods:
(i) taking the goods away from the premises and securing them,
(ii) securing them on the premises, and
(iii) a form based on "walking possession", possibly to be called "reservation pending further enforcement action" or "legal control without physical possession".
The terms upon which the bailiff taking legal control of goods leaves them on the premises and neither removes them nor takes physical possession should:
a. be stated in legislation together with a model form of agreement,
b. require the distrainor to agree to leave the goods on the premises and delay sale, and
c. require the debtor/signatory to agree that until payment is made or the warrant withdrawn, he or she:
The debtor/signatory should sign two copies of the agreement, one of which should be handed to him or her.
While it is preferable for the agreement to be signed by the debtor, it should be capable of being signed by any responsible person on the premises.
Where what is now known as a walking possession agreement is entered into, consideration should be given to enabling the distrainor to give the debtor permission to dispose of the seized stock if required for normal trading, and arrange either to receive the proceeds of the sale or for replacement stock acquired by the debtor to be subject to the levy.
That consideration should be given to the need for a maximum period for a levy and, if such a period should be specified, what it should be.
a. that legislation should specify the circumstances in which a distrainor is permitted to make a second levy,
b. that the present rules are satisfactory but that it may be possible to widen the circumstances in which a second levy is permitted once an effective system of regulation is in place. Until then a second levy should only be permitted where:
c. The creditor should be able to issue repeat warrants for a particular debt, as many times as necessary, but in the case of execution, it should be possible to issue a second writ for a particular debt only after the first writ has been returned.
No goods taken into the legal control of a distrainor should be sold until the expiration of a period of at least seven days next following the day on which the goods have been taken into the legal control of the distrainor unless the goods are perishable or the person whose goods have been so taken gives written consent.
No goods taken into the legal control of a distrainor should be sold on the debtor's premises unless directed by the court on the ground that it would be impossible to conduct the sale anywhere else or the debtor gives written consent.
Goods taken into the legal control of a distrainor who takes them away from the premises must be deposited in some fit place, remain in the custody of a suitable person duly approved or be safeguarded in other such manner as directed
a. Where it appears that there are insufficient distrainable goods on the premises to cover the expenses and 10% of the debt or £50, whichever is the lesser, the goods should not be sold.
b. the debtor should be entitled to have the goods appraised upon making a written request, but will be required to meet the costs of the appraisement either as part of the fee payable to the bailiff, except where it is clear that there are insufficient distrainable goods (as defined in (a) above) on the premises.
c. Consideration should be given to the abolition of the requirement of appraisal in the case of income tax and national insurance debts.
The determination of precise rules on appraisal may depend on the form of regulation that is adopted for bailiffs and the enforcement process.
The sale must be appropriately advertised, and an auction sale must be advertised at least 3 days before it is held.
That the rules governing the conduct of the sale should be set out in the legislation.
a. The legislation should provide for the passing of title of goods sold in distraint.
b. Where goods are sold in distraint, where no claims have been made against the goods,
(i) the buyer should acquire a good title to them and
(ii) the sheriff or bailiff and anyone lawfully acting under his authority should be immune from claims
unless it is proved that the officer had notice that the goods were not the property of the execution debtor or might have ascertained it with reasonable inquiry.
b. The legislation should also specify that any goods seized should be made available for collection if payment is received.
c. If the debt is paid before entry then, by analogy with the common law position, the distrainor should not be entitled to proceed or to claim any fees.
d. The taking of legal control of the goods is not rendered wrongful by a later tender of the money after legal control has been taken.
e. Consideration be given to whether the debtor should be able to pay while the bailiff is engaged in taking legal control or removing the goods from the premises, and, if so, how to protect the bailiff and the debtor in view of the possible uncertainty as to the charges due at the time of payment.
A person who rescues or attempts to rescue any goods taken into legal control by way of distraint should be liable on summary conviction to up to one month's imprisonment, or a fine of £2,500 or both.
That legislation provide that a person who is alleged to have interfered with goods seized should be entitled (i) to be informed promptly and in detail of the nature and the cause of the accusation, (ii) to be given adequate time and facilities for the preparation of his defence, and (iii) to be asked whether he or she wishes to be represented.
The entitlement of bailiffs other than county court bailiffs to take an offender into custody with or without a warrant should be considered at the time the regulatory framework that is to govern bailiffs is being determined.
a. A person who wrongfully interferes with any goods taken into legal control by way of distraint should be liable to compensate the creditor in respect of any loss or damage suffered by the creditor.
b. A person who wrongfully interferes with any goods taken into legal control by way of distraint should be liable to compensate the distrainor in respect of any loss or damage suffered by the distrainor and to pay any additional charges due to the distrainor.
a. That an unlawful distraint may be illegal, irregular, or excessive.
b. Distraint will be illegal if it was wrongful from the outset. In cases of illegal distraint, the owner of the goods and the distrainor will be liable for wrongful interference with the goods.
It will be no defence that:
(i) the goods taken into the legal control of the distrainor were applied to pay off the owner's debt, or
(ii) the distrainor had the authority to take legal control of the goods in a proper manner or to take legal control of other goods.
c. Distraint will be irregular if entry and the taking of legal control of the goods was carried out correctly but the distrainor subsequently does something unlawful.
(i) The distrainor will be liable for any damage actually suffered by the debtor.
(ii) An irregularity in the distraint process does not prevent the distrainor from passing good title to a purchaser.
d. Distraint will be excessive where the value of the goods seized is clearly disproportionate to the value of the debt.
(i) A distrainor who exercises a reasonable and honest discretion and takes legal control of what any reasonable person would think adequate to satisfy his or her claim shall not be liable for excessive distress.
(ii) If there is only one article available a distrainor is entitled to seize that article even if its value greatly exceeds the value of the debt. If the debt could have been satisfied through seizure of other goods of a lesser value then the distrainor may be liable for excessive distraint.
A) Execution will be wrongful.
a. where the execution was not authorised or justified by the writ of execution or by the judgment under which it is issued,
b. the writ of execution was issued maliciously and without reasonable cause.
c. The levy is carried out unlawfully, as where the distrainor executes on a Sunday or forces entry.
d. Where unfair means, such as the procuring of a search warrant, are used to enable the bailiff to enter the debtor's premises.
Where execution is wrongful the debtor can recover damages for trespass. Where there is malice the damages will be assessed according to the degree of malice.
Wrongful execution should not necessarily affect the validity of the levy.
B) An execution will be irregular if any of the rules of court have not been complied with.
(i) If the execution is irregular the debtor may apply to have it set aside or amended or for a restitution order.
(ii) Proceedings will not automatically be nullified by an irregularity in the execution but may be if the irregularity was sufficiently serious.
(iii) The setting aside of a writ of execution for irregularity will not prevent the creditor from issuing and executing another writ.
(iv) No officer of a county court in executing any warrant of the court, and no person at whose instance any such warrant is executed shall be deemed a trespasser by reason of any irregularity or informality
a. in any proceedings on the validity of which the warrant depends; or
b. in the form of the warrant or the mode of expressing it.
But any person aggrieved may bring an action for any special damage (in excess of £2) sustained by him by reason of the irregularity or informality against the person guilty of it.
C) Execution will be excessive where the value of the goods seized is clearly disproportionate to the value of the debt.
(i) a distrainor who exercises a reasonable and honest discretion and takes legal control of what any reasonable person would think adequate to satisfy his or her claim shall not be liable for excessive distress.
(ii) If there is only one article available a distrainor is entitled to seize that article even if its value greatly exceeds the value of the debt. If the debt could have been satisfied through seizure of other goods of a lesser value then the distrainor may be liable for excessive distraint.
D) Consequences of setting aside writ of execution.
Where an execution is set aside, either because it was wrongful or irregular, a writ of restitution may be issued ordering the judgment creditor to restore the property or pay over the proceeds of sale to the debtor.
That replevin be retained as a remedy for illegal distress. Consideration should be given as to whether the procedure requires modification in the light of the changes made by the Civil Procedure Rules.
The interpleader procedure should be retained, but consideration should be given as to whether it requires modification in the light of the changes made by the Civil Procedure Rules.
Complaints procedures such as those under the Distress for Rent Rules 1988 concerning a bailiff's conduct or fitness to practice and sanctions such as cancelling a bailiff's certificate should be considered in the context of the regulatory framework.
The priority accorded to distraint for a debt owed to the Crown over any earlier distraint provided that the goods have not been sold should not be removed. It is for consideration whether this should, in the interests of clarity in the context of bailiff law, be contained in legislation governing bailiffs.
The priority accorded to landlords in respect of distress for rent should be abolished.
The legislation should provide that a writ of execution binds the property in the goods of the debtor from the time that it is delivered to the officer to be executed so that the order of execution will be dictated by the time of delivery.
Statutory charge scales are laid down for almost all types of distraint68. Again, however, the services or items for which a distrainor can charge and the amount chargeable depends on the type of debt being recovered and whether it is in execution of a County Court or High Court judgment69. Despite the differences, however, the statutory regimes usually authorise charges for similar kinds of services. This section considers these charges and seeks views as to whether there is scope for rationalisation and harmonisation, whether the fees that are authorised cover all legitimate enforcement costs, and what fee, and from whom, should a distrainor be able to recover where a levy is unsuccessful in the sense that the bailiff finds no or insufficient goods on which to levy. Table D and paragraph 2.10 above indicates that some 5.8% of levies pursuant to enforceable county court warrants are unsuccessful.
The details given in this section are taken from the statutory provisions listed in the footnotes. There are a number of different fee regimes set out in legislation and it is appreciated that this survey may not be comprehensive. If it is not, please could responses indicate what has been omitted?
In the case of distraint for County Court debts, the Court Service charges a fee for the issue of a warrant which varies according to the size of the debt70. No further fees are incurred unless there is a removal and sale, which the figures set out in paragraph 2.9 above suggest is a rare event71. The bailiffs are employed by the Court Service and receive a salary.
It is our understanding that the statutory fees for enforcing High Court writs of execution are more generous than the charges for County Court debts. They support the involvement of both the Under Sheriff and the Sheriff's Officer and provide for fees for each activity in the process. They also provide for the creditor to be charged for enforcement services carried out which do not lead to payment.
Private bailiffs enforcing fines, local taxation and Road
Traffic Act penalties are governed by a variety of fee regimes.
All such fees are paid by the debtor.
Communicating with the debtor
Bailiffs distraining for road traffic debts may charge £10 for preparing and sending a letter advising the debtor that a warrant has been issued and requesting the total sum due72. Similarly, in distress for rent, the bailiff is entitled to charge reasonable fees, charges and expenses for negotiations between the landlord and the tenant.
Making a levy
If the levy is successful then the distrainor's fee will usually be a percentage of the sum due. The most commonly used fee scale allows the distrainor to claim £12.50 (£15 for non-domestic rating and council tax) if the debt does not exceed £100 and otherwise 12.5% (15% for non-domestic rating and council tax) on the first £100, 4% on the next £400, 2.5 % on the next £1,500, 1% on the next £8,000 and 0.25% on any additional sum73. By contrast, a distrainor collecting a road traffic debt can recover a flat fee £20 if the sum demanded is not over £100 and if it exceeds £100, 20% on first £200 and 5% on any additional sum74. The regime for sheriffs' fees is slightly different as they may charge 29.2 pence per mile for one return trip to seize the goods and another to remove them, £2 for each building at which a seizure is made, for making inquiries about claims for rent or to goods, and for any expenses actually incurred in relation to that work75.
Attempting a levy
Usually a charge can also be made for visiting the premises with a view to making a levy even if the levy is unsuccessful. In some cases this attracts a flat fee76 while in others it entitles the distrainor to reasonable costs and charges, not exceeding the amount that could have been charged if the levy had been successful77.
Most of the legislation stipulates a maximum total fee that a bailiff can charge for visits made with a view to making a levy. Thus, a distrainor levying for road traffic debts cannot charge any more than the aggregate of the fees chargeable for three visits to levy the goods. A distrainor levying for council tax or non-domestic rating, may not charge for more than two such visits and if levying for indirect taxes he or she can only charge for an attempted levy if the levy is not carried out because payment is made. In distraint for child support, the aggregate of the charges must not exceed the maximum set down for one such visit. By contrast, in distress for rent and for income tax, there appears to be no limit to the number of times that a debtor can be charged for visits made with a view to levy.
Walking and close possession
Most of the legislation also stipulates a set charge for walking and close possession. This is usually calculated on a daily basis. The daily charge for walking possession varies from 10 pence a day for non-domestic rating and council tax to 45 pence a day for child support debts, income tax, and the first 14 days of walking possession for road traffic debts. For close possession it varies from £3 a day for sheriffs to £10 a day for non-domestic rating and council tax78. In some cases the legislation will also set down a maximum number of days for which the fee can be charged79.
Removing and storing the goods
In all the statutory regimes, the distrainor is permitted to recover reasonable costs and fees incurred in removing and storing the goods before sale80. Most of the legislation also authorises the distrainor to charge for unsuccessful attempts to remove the goods or for charges incurred in relation to arranging removal and storage81.
Appraisement and advertising
In almost all cases, the distrainor can also recover reasonable costs and fees incurred in advertising the sale82 and having the goods appraised83. Bailiffs executing County Court judgments may charge 5 pence in the pound (or part thereof) of the appraised value of the goods for having the goods appraised.
Auction
In most of the fee scales, the distrainor is entitled to charge 15% of any sum recovered in an auction held on the auctioneer's premises84. Usually this fee is to cover the auctioneer's commission and all the distrainor's out of pocket expenses except the costs of advertising, appraisement, and removal85. In most cases, the 15% is recoverable as a fee86 but in others it operates as a ceiling to the amount that the distrainor may recover for out-of-pocket expenses and the auctioneer's commission87.
If the auction is held on the debtor's premises then the distrainor can usually charge 7.5% of the sum recovered88. This sum will include the auctioneer's commission but not the distrainor's out of pocket expenses, which can also be charged for89. Again the 7.5% is usually recoverable as a fee90 but in some cases it operates as a ceiling to the amount that can be charged for the auctioneer's commission91.
In execution of High Court judgments, the auction fee is the same regardless of where it was held92 and with execution of County Court judgments, the bailiff can charge 15% of the amount received whenever there is a sale93. A sheriff executing a High Court judgment can also recover poundage at a rate of 5% for the first £100 and then 2.5%94.
Unsuccessful sale
Some statutes also authorise charges where there has been no sale, either because there were no buyers or because, for some other reason, the sale did not take place. The distrainor may be able to recover reasonable costs incurred in respect of the attempted sale95, "reasonable fees, costs and charges",96 or a percentage of the value of the goods97.
Private sale
Distrainors may also charge fees if the goods are sold privately. Sheriffs making a private sale can recover half the percentage allowed on a sale by auction (the statute does not stipulate whether this means an auction on the auctioneer's premises or the debtor's), a sum not exceeding 2.5% of the value of the goods for work done,98 and sums actually and reasonably paid in preparing for an auction. A bailiff distraining for indirect taxes can claim a fee of 7.5% of the sum realised and reasonable costs if a sale by some means other than an auction is undertaken and for the County Court bailiffs is the same irrespective of how the sale was conducted.
VAT on fees
Some of the fee scales authorise the distrainor to charge VAT in addition to the charges authorised therein,99 while others say that it is included100. The County Courts regulations do not say how VAT is to be charged.
Fee exemptions
A sheriff executing a writ of fieri facias is not entitled to fees if the order is for less than £600 and does not entitle the judgment creditor to costs against the debtor101.
Non-statutory charges
There has been some suggestion in the case law that non-statutory charges can also be made. However, if this practice has been accepted at all, it is controversial and there is no clear guidance on what additional charges can be made. For this reason and because, unless consultation suggests that it should be otherwise, any changes to the fee scales introduced as a result of this review would be comprehensive, possible non-statutory charges will not be examined here.
68 Bailiffs distraining for magistrates' court debts are the notable exception; their fees are fixed by a contract between the bailiff and the particular court.
69 The fee scales referred to in this section are found in Enforcement of Road Traffic Debts (Certificated Bailiffs) Regulations 1993 S.I. No. 2072 Schedule 1; Distress for Rent Rules 1988 S.I. No. 2050 Appendix 1; Distress for Customs and Excise Duties and Other Indirect Taxes Regulations 1997 S.I. No. 1431 Schedule 2; Non-domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989 S.I. No.1058 Schedule 3; Council Tax (Administration and Enforcement) Regulations 1992 S.I. No. 613 Schedule 5; Child Support (Collection and Enforcement) Regulations 1992 S.I. No. 1989 Schedule 2; Order as to Fees for Execution of Writs of Fieri Facias 1920 S.R. & O No. 1250; Distraint by Collectors (Fees, Costs and Charges) Regulations 1994; S.I. No. 236 Schedule; County Courts Fees Order 1999. (Note that although the Distress for Rent Rules 1988 deal primarily with the certification of bailiffs, there is nothing in the Rules themselves excluding landlords from the application of the fees, charges and expenses provisions).
70 The fee is between £20 and £45. See County Court Fees Order 1999 Schedule 1, para 4.1.
71 Mr. C. Tye, Secretary of the Association of Civil Enforcement Agencies, to whom I am indebted for much that is in paragraphs 14.1 - 14.5, suggests that there is removal and sale in approximately 5% of cases.
72 Enforcement of Road Traffic Debts (Certificated Bailiffs) Regulations 1993 S.I. No. 2072 Schedule 1, para 1.
73 Distress for Rent Rules 1988 S.I. No. 2050 Appendix 1, para 1; Distress for Customs and Excise Duties and Other Indirect Taxes Regulations 1997 S.I. No. 1431 Schedule 2 para 2; Distraint by Collectors (Fees, Costs and Charges) Regulations 1994 S.I. No. 236 Schedule; Child Support (Collection and Enforcement) Regulations 1992 S.I. No. 1989 Schedule 2, para 2. In the case of child support the bailiff is entitled to charge for reasonable costs and fees incurred but the aggregate amount charged for visits made to make a levy must not exceed the percentages outlined (above).
74 Enforcement of Road Traffic Debts (Certificated Bailiffs) Regulations 1993 S.I. No. 2072 Schedule 1(2).
75 See Order as to Fees for Execution of Writs of Fieri Facias 1920 S.R. & O No. 1250, r1 and r2.
76 £12.50 for any unsuccessful visit for indirect taxes and for a second unsuccessful visit for council tax or non-domestic rating; £15 for a first visit for council tax or non-domestic rating. See n. 299 for the relevant statutory provisions.
77 Road traffic debts, distress for rent, child support (although maximum fees are stipulated). See n299 for the relevant statutory provisions.
78 All require the distrainor to provide his or her own board. See n299 for the relevant statutory provisions.
79 In distraint for income tax a fee for walking possession can only be charged for 14 days. See Distraint by Collectors (Fees, Costs and Charges) Regulations 1994 S.I. No. 236 Schedule.
80 In execution in the High Court, council tax, non-domestic rating, indirect taxation, income tax, road traffic debts, child support. In execution of High Court and County Court judgments this charge is said specifically to include the costs of keeping and feeding animals. County Court bailiffs can recover reasonable expenses incurred in removing goods to a place of safe deposit but not in storing them. See n299 for the relevant statutory provisions.
81 Distrainors for council tax and non-domestic rating can charge for one visit with a vehicle with a view to removing the goods where the goods are not removed; distrainors for indirect taxation can recover the reasonable costs of arranging removal and storage; and distrainors for road traffic debts can recover reasonable costs and charges incurred on attending to remove goods when no goods are removed. County Court bailiffs can recover reasonable expenses incurred in taking steps to remove the goods to a place of deposit. Note that in the case of road traffic debts there appears to be no limit to how many times the distrainor can charge for attending to remove the goods when they are not actually removed. See n299 for the relevant statutory provisions.
82 In distress for rent, child support, road traffic debts, income tax, indirect tax, non-domestic rating, and council tax, and County Court execution. In High Court execution, all out of pocket expenses including advertising costs, are included in the fee chargeable for sale by auction on the auctioneer's premises but can be charged for separately if the auction is held on the debtor's premises. The sheriff can also charge for expenses in preparing for a public auction (including advertising costs) if the goods end up being sold privately. See n299 for the relevant statutory provisions.
83 In distress for rent, child support, road traffic debts, income tax, indirect tax, non-domestic rating, and council tax. See n299 for the relevant statutory provisions.
84 This sum is stipulated in all the fee schedules. (See n299 for the relevant statutory provisions). However, sheriffs are only entitled to charge 15% for the first £100, then 12.5% on the next £900 and 10% for sums above £1000. See Order as to Fees for Execution of Writs of Fieri Facias 1920 S.R. & O No. 1250, r8.
85 This is the case in the regulations on non-domestic rating, council tax, child support, road traffic debts, distress for rent, indirect taxation, and income taxation. Only the costs of removal are excluded in the case of High Court execution. See n299 for the relevant statutory provisions.
86 In the fee scales for road traffic debts, indirect taxation, income tax and execution in the County Court and High Court. See n299 for the relevant statutory provisions.
87 In the fee scales for council tax, non-domestic rating and child support. See n299 for the relevant statutory provisions.
88 Note that the reference in the indirect taxation regulations is to a sale held "elsewhere" i.e. anywhere other than the auctioneer's premises. See Distress for Customs and Excise Duties and Other Indirect Taxes Regulations 1997 S.I. No. 1431 Schedule 2, para 8(b).
89 This is the case in all the legislation with specific provisions on auctions held on the debtor's premises.
90 In the case of road traffic debts, distress for rent, indirect taxation, and income tax. See n299 for the relevant statutory provisions.
91 In the case of distraint for council tax, non-domestic rating and child support. See n299 for the relevant statutory provisions.
92 It is 15% for the first £100, then 12.5% on the next £900 and 10% for sums above £1000. See Order as to Fees for Execution of Writs of Fieri Facias 1920 S.R. & O No. 1250, r8(1).
93 This amount includes advertisements, catalogues, commission and delivery of the goods. See County Courts Fees Order 1999 r5.4.
94 5% for the first £100 and then 2.5%. See Order as to Fees for Execution of Writs of Fieri Facias 1920 S.R. & O No. 1250, r10.
95 In child support, council tax and non-domestic rating. See n299 for the relevant statutory provisions.
96 In distress for rent and road traffic debts. See n299 for the relevant statutory provisions.
97 10% in the case of County Court debts. 10% for a High Court debt where the goods have been removed to the auctioneer's premises (this is to cover the auctioneer's commission and all out of pocket expenses except costs of removal) and 5% plus reasonable out of pocket expenses where they have not been removed but work (including a detailed inventory) has been done in preparation for the sale. The statutes on non-domestic rating and council tax simply state that the distrainor can recover reasonable costs incurred in advertising where the sale does not take place because the debt is tendered. See n299 for the relevant statutory provisions.
98 The work must include preparing an inventory and valuation or preparing for an auction. See Order as to Fees for Execution of Writs of Fieri Facias 1920 S.R. & O No. 1250, r8.
99 Indirect taxes, road traffic debts, income tax, distress for rent, execution in the High Court. See n299 for the relevant statutory provisions.
100 Non-domestic rating, council tax and child support. See n299 for the relevant statutory provisions.
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