In this section we will be looking at:
* Ways to avoid the Bailiff
* Ways to delay the Bailiff
* Ways to defeat the Bailiff before he arrives
(N.B. The FREE information published here is intended to provide general assistance only. If you have specific requirements, please email us for a more personal response.)
Most of the time dealing with a bailiffs’ problem is a matter of trying to put right what has already gone wrong. The bailiff has already called and seized goods and is now in a position of strength. He will be able to demand payment, often a lump sum or high instalments over a short period, in default of which he can remove and sell the specific goods seized. The only way of redressing the balance in a situation where the debtor does not have the money (as is of course, usually the case) will be to find some error in the proceedings. This is often not as difficult as it may sound and BeatTheBailiff.com will be describing the successive stages of the process. Ideally, though, the preferable solution is to avoid the problem in the first place. This section looks at how bailiffs’ action may be prevented.
The general assumption that will be made throughout is, of course, that the debtor is not seeking to deny liability, but is unable to pay at the rate demanded.
The enforcement may be prevented if the debt upon which the levy is based can be challenged. This will naturally remove any right to seize goods. The ability to challenge the debt will vary from debt to debt, as will the method to be employed.
If a court judgment is being enforced by execution, it may be possible to challenge it if the judgment debtor did not respond to the initial summons. If the person did defend the case, and was unsuccessful, this opportunity has plainly gone. If s/he failed to receive the summons (which is not unheard of) or did not deal with it, the chance to fight the case is not lost totally. It will be necessary to make application to the relevant court to have the judgment ‘set aside’- in effect, cancelled. The court will do this where there is both a good reason for failing to respond the first time and a defence to the claim which should be heard. If the person is liable, but simply cannot afford to clear the debt at once, this is not a defence. Rather they should apply to stay the execution – see below. if however, there is a valid basis upon which the claim may be contested – for instance a dispute as to liability or a counterclaim for damages, perhaps arising out of faulty goods or services, an opportunity will be given for these matters to be heard. The application to set aside will be heard by the court quite promptly, and in the meantime the person should request that execution is stayed to prevent the bailiff taking any further steps. If the judgement is set aside there will no longer be a debt that the court can enforce, and a further hearing will follow to consider the claim and defence.
* Liability orders
Local tax debts and arrears of child support maintenance are enforceable by distress once the council or CSA have obtained a Liability Order from the magistrates court. This confirms the individual’s liability for the unpaid debt. It is not like a judgement and is essentially a ‘rubber stamping exercise’ on the part of the court. Issues of liability should be taken up not with the court but with the creditor, who, if the challenge is successful, should be invited to cancel or withdraw the order made.
* Road Traffic Orders
Road Traffic penalties are a strange hybrid between court judgements and private distress. The county court order that must be obtained prior to the use of bailiffs is more like a liability order than a normal county court judgement. The procedure for imposing the penalty is as follows. Where an individual contravenes parking regulations a parking attendant employed by the borough can impose a penalty charge and may either fix notice of this on on the car or give it to the driver. If the owner does not pay in 28 days, notice is served on them by the local authority under section 66 stating that there are a further 28 days in which to pay and that the charge will increase thereafter. If the person does not pay then a “charge certificate” is issued and the penalty increases by 100%. After a further fourteen days the local authority may apply to Northampton County Court for an order that it may recover the penalty as if it were payable under a county Court Judgement.
The debtor can challenge the original penalty charge notice after receiving it, on grounds such as the fact that he/she was not driving the car or that the car was no longer their property. S/he may later challenge the court order, on the grounds either that s/he did not receive the notice or that representations against it were ignored, by means of a statutory declaration. The effect of the declaration is to revoke any county court order and cancel any charge certificate. Standard forms for this purpose may be obtained from Northampton County Court.
* Magistrates orders
The Magistrates Court may use distress to impose a range of orders, though it will typically only be encountered being used to collect arrears on fines and other orders associated with criminal offences. Once the decision has been taken to use distress it can be difficult to reverse that (see ‘suspending warrants’ later). The only other way of challenging the remedy through the court would be to attack the original conviction upon which it is based. This may involve appeal to either the Crown Court or High Court and legal advice will be essential.
* Other Forms of Distress
In every other case no involvement with the court is required and the decision that the debtor is liable and that distress should be used is solely a matter for the creditor. In such cases any challenge to liability will therefore have to be addressed to them directly.
The basic rule is that issues as to the merits of an assessment cannot be raised as a defence or bar during recovery proceedings. For both unpaid income tax or VAT aprocess of appeal exists. It is likely that the liable person will have missed the first opportunity to exploit this, as matters are by now far advanced. Nonetheless it is usually possible to appeal late, if good reasons can be shown for the delay. Permission to do this may be needed from the tax collector or, if this is refused, from the appeal tribunal. Income tax liability is determined by the General Commissioners and VAT is dealt by a VAT Tribunal. Both are panels of lay experts who meet locally to hear and determine such cases. Details of the appeal process and the necessary forms may be obtained from your local tax office. It is worth noting, however that the C and E bailiffs may be ordered to abandon the levy if the firm deregisters for VAT during the levy process.
If the problem is rent, the only course of action may be to take up the matter directly with the landlord. Private landlords of business premises and local authority and housing association landlords of ‘secure’ tenants may use distress without any prior warning. Negotiating with ‘social housing landlords’ over arrears should not normally prove too difficult and all work under guidance from their professional bodies to the effect that, if distress is used at all, it should be used as a last resortin an effort to re-establish contact. Private commercial landlords may be more of a problem to negotiate with as they will have few qualms about the use of the remedy, nor may they be particularly flexible about rates of repayment.