Enforcement of Judgments

Ministry of Justice proposes requirement to notify defendants in advance of enforcement action

The long awaited review of bailiff law is now well under way. The MoJ recently closed the consultation paper Transforming Bailiff Action. The paper includes proposed regulations designed to give effect to Part Three of the Tribunals, Courts and Enforcement Act (1997).

The proposals cover a wide range of issues but this article considers the requirements under Schedule 12 of the TCE Act. Paragraph 7 of Schedule 12 states that an enforcement agent may not take control of goods without first having provided notice to the debtor. Proposed regulations in the consultation document state the minimum period, content and method of notice.

The proposed regulations state that the Enforcement Agent (or his office) should provide written notice to the defendant seven days before taking control of goods. The consultation document provides a format for the notice and service by post is acceptable under the regulations.

The notice is designed to provide the defendant with a final opportunity to make payment before incurring the additional costs of enforcement action or risking seizure of his goods.

In theory, the provision of notice to the defendant provides transparency in the enforcement process and gives the debtor the opportunity to make payment without being responsible for additional costs of field enforcement action. However, some argue that providing notice would give unscrupulous defendants the opportunity to frustrate the enforcement process by hiding goods. It could also be said that the defendant has ample opportunity to make payment at judgment stage and that this further notice requirement is therefore unnecessary.

A procedure does exist for an enforcement officer to apply to the court for a lesser period of notice where he believes that the defendant may well hide or otherwise dispose of goods. However, it is not clear what the requirements are in order to make such a case.

The consultation paper makes several recommendations, some favourable to the enforcement industry and some less favourable. This recommendation undoubtedly falls into the latter category, but the true extent to which it places the claimant at a disadvantage will remain to be seen.

The MoJ consultation closed earlier this month and regulations are due to come into force at some point next year.