When is an Enforcement Agency not an Enforcement Agency?

 

A cautionary tale for solicitors instructing certificated enforcement agents

Notice of Enforcement

  • A Commercial Rent Debtor gets a notice of Enforcement through the post from a company.
  • The tenant contacts the company and requests to pay by instalments.
  • The company reply they will speak to the instructing solicitor for their response to the request.

This is a common situation when a notice of enforcement is sent out to a debtor. However, the subsequent response from the company was not expected.

The company goes back to the tenant and says they can pay by installments, but they will have to pay 10% debt collection charges and interest for accepting instalments. They further stated that as they will be acting as the landlords debt collection company the lease allows for the landlord to charge collection charges and the late payment of commercial rent interest act supports this. The tenant is required to pay the compliance fee in full immediately then weekly instalments to pay off the debt.

The debtor complains to his legal team about the charges.

On investigation it is discovered the collection company does not have any owner or director that is certificated, or indeed any employees certificated that are PAYE. The company is a private investigation company that also does process servicing, investigations and just brokers out bailiff work when it is required by solicitors, as they are not certificated enforcement agents.

This company lists services on their letterhead as private investigators, process servers, certificated Enforcement Agents and Debt Recovery agents.

The extra collection fees are not covered by The Taking Control of Goods (Fees)Regulations 2014, and so should be open to challenge.

The question?

If any company does not employ or have a director or partner that is a Certificated Enforcement Agent should they be allowed to advertise the service of enforcement agents?

Landlord believes this is a bailiff company, experienced and with necessary Professional Indemnity Insurance in place.

The solicitor also thinks they are dealing with an enforcement company.

Check the bailiff you are instructing is certificated or the whole process is illegal.

To be sure check the Certificated Enforcement Agent (Bailiff) Register at justice.gov.uk

We can help

Enforcement Bailiffs Ltd has a national team of experienced Local Certificated Enforcement Agents ready to carry out your instructions.

London & South
0208 090 2439
Midlands & Wales
01733 306 462
Northern England
01325 526 127

Section 63 (2) of Tribunals, Courts and Enforcement Act 2007

The Act clearly defines who may act as an enforcement agent.

  1. This section and section 64 apply for the purposes of Schedule 12.
  2. An individual may act as an enforcement agent only if one of these applies -
    1. he acts under a certificate under section 64;
    2. he is exempt;
    3. he acts in the presence and under the direction of a person to whom paragraph (a) or (b) applies.
  3. An individual is exempt if he acts in the course of his duty as one of these
    1. a constable;
    2. an officer of Revenue and Customs;
    3. a person appointed under section 2(1) of the Courts Act 2003 (c. 39) (court officers and staff).
  4. An individual is exempt if he acts in the course of his duty as an officer of a government department.
  5. For the purposes of an enforcement power conferred by a warrant, an individual is exempt if in relation to the warrant he is a civilian enforcement officer, as defined in section 125A of the Magistrates' Courts Act 1980 (c. 43).
  6. A person is guilty of an offence if, knowingly or recklessly, he purports to act as an enforcement agent without being authorised to do so by subsection (2).
  7. A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

read more industry news