Bailiffs and their powers in England and Wales

Aside from the monetary value - and fees -  being recovered, data protection and reputational considerations also need to be borne in mind in circumstances where a bailiff attends commercial premises.

Before attendance at premises

Before a bailiff - or certified enforcement agent - can attend premises, they must be in possession of a court document (in the High Court, a writ of control and in the County Court, a warrant of control) which allows them to seize and sell a judgment debtor’s goods to raise funds to satisfy a judgment debt. This power is granted by the Tribunals, Courts and Enforcement Act 2007.

In most cases, a writ or warrant of control can be issued administratively by the court office following production of documents and payment of a fee.

Once the writ or warrant of control has been obtained, the bailiff will make contact with the debtor. This is usually through a letter or, less often, an initial visit to the premises in question. A bailiff must give seven days’ notice before seizing any goods from a premises unless a court has specified otherwise.

Once you receive notification that a bailiff is intending to visit your premises to enforce a money judgment, you should take steps to identify the bailiff and the powers they are acting under (i.e. whether they have a writ of control or a warrant of control). Other important information to identify at this stage includes:

• name and address of the debtor;
• date of the notice confirming that a bailiff will attend your premises and if there is any indication of the date they will attend;
• details of the court judgment;
• how and when payment can be made, as well as the date and time that payment must be made to avoid goods being taken; and
• the bailiff’s address and telephone number.

At this stage, it will be important to consider whether the debt is validly due and, if so, how payment can be made to avoid further bailiff involvement.

If the debt is disputed, consider whether it may be appropriate to obtain a stay of execution, which would prevent enforcement of the writ or warrant until the outcome of the relevant action. This may be appropriate where, for example, the debtor intends to appeal the judgment or apply to set it aside. A further option to consider is whether the parties can enter into an interim arrangement, such as paying the debt into a third party account pending resolution of the dispute. It is often helpful to obtain legal advice at this stage.

Attendance at premises to seize goods

Initial checks upon attendance

If a bailiff attends your premises, there are some practical steps that the business should undertake.

Reception staff, or whoever is the first point of contact at the business, should:

• check the identity of the bailiff, who should be willing to produce suitable identification and details of the organisation they work for. This will enable a check to be undertaken of the Directory of High Court Enforcement Officers/Registry of Certified Bailiffs, as appropriate;
• obtain information on the specified premises the bailiff is authorised to enter;
• obtain a copy of the enforcement notice, the notice informing of the bailiff’s intention to attend and the court judgment or other proof of debt. If the notice informing of the bailiff attending has not been received, entry should be refused until this evidence can be provided by the bailiff. If it cannot be provided, then access should not be given;
• inform the designated individuals in the business - legal team or management - about the attendance. It is helpful to have a system and protocol in place for this ahead of this situation arising;
• not permit access to the bailiff to 'employee only' areas of the business until confirmed to do so by the team dealing with the matter. For reference, a bailiff must only use a door or usual means of entry to enter a premises. A bailiff should not seek to gain entry to premises under false pretences, for example by asking to use the toilet or the telephone.

Consideration should be given to whether it may be possible to obtain a stay of execution and/or enter into an interim arrangement, if this has not already been done.

It may also be appropriate to enter into a Controlled Goods Agreement, which would allow you to retain the right of use of the goods in return for a promise to pay off the debt in accordance with an agreed payment schedule. In the event of default of the payment schedule, goods will be taken by the bailiffs.

Seizing of goods

Upon entering the premises, a bailiff is likely to wish to survey the premises to obtain an initial list of the goods to be removed. An employee should accompany the bailiff around the premises and keep a note of what goods they are reviewing, as well as film the bailiff on a phone, or similar, for evidential purposes. A detailed note of the interaction with the bailiff should also be made.

The bailiff should not remove goods which clearly belong to a third party who is not responsible for the debt. If there are items present which belong to a third party, you should try and provide the bailiff with evidence of ownership so they are not seized.

Bailiffs are also not entitled to remove anything which is clearly identifiable as an item belonging to, or for the exclusive use of, a child (under the age of 16) or any items which are clearly identifiable as required for the care and treatment of someone who is disabled, elderly or seriously ill.

If a bailiff is looking to seize computers or laptops, you should be given the opportunity to back up and then wipe any data that is held on the devices. The Taking Control of Goods National Standards, published in April 2014, confirm that a bailiff should “maintain strict client confidentiality and comply with Data Protection legislation”. If a bailiff is looking to seize such items, the individual accompanying them around the premises should inform the bailiff that the items contain such data and remind them, as appropriate, of the need to comply with Data Protection legislation. Proceeding in this way should assist in facilitating a discussion on the matter.

If goods are taken, a detailed and complete receipt for goods removed should be given by the bailiff. A bailiff must ensure these goods are handled with proper care and should have an insurance policy in place for if goods are damaged.

Bailiffs are also entitled to charge for their services. Where debts are over £1,500, this could equate to 7.5% of the debt on top of a fixed fee for the stage of enforcement that is reached. These fees can be significant.

Next steps

If the bailiff’s conduct is considered to be inappropriate, it is possible to make a complaint against the bailiff to the creditor or to a bailiff trade body.

Practical steps the business should take

Reception should not let the bailiffs into the premises until the information referred to above is obtained.

Reception should have the contact details of who from the business should be contacted to deal with a bailiff attending. This should be multiple contacts, in case of annual leave or absence from the business.

The bailiff should be accompanied at all times while they are on the premises, including making a detailed note of their actions and conversations which take place. Do not attempt to evict a bailiff who is already on the premises, as they have a legal right to be there.

Be aware of any items which hold personal data and ensure that this is wiped from the device, after a back-up is made. If goods belong to a third party, have evidence demonstrating this accessible (eg evidence that the goods are leased from a third party).