Sorry, just seen this I will try to get a copy over to you after work

Sorry, just seen this I will try to get a copy over to you after work

If you could provide a copy that would be excellent because since November the Ministry of Justice have been holding meetings and workshops with various organisations and groups regarding the one year review of the bailiff regulations that came into effect on 6th April last year and I know for a fact that many complaints have already been made to MOJ about the dates on letters and the delivery "methods" used by enforcement companies that seem to ensure that letters arrive about 5 days after the date on the notice.

If the matter of the dates etc is not reviewed at this time then sadly it will stay the same for quite some time given that the next review is a few years away. If you could get a copy to the site moderator later today that would be very useful as a 'review' meeting is taking place tomorrow (Tuesday) and your example can be highlighted.

Is it possible there is confusion in the actual wording of the legislation itself which states:

 

Subject to paragraph (3), notice of enforcement must be given to the debtor not less than7 clear days before the enforcement agent takes

control of the debtor’s goods.

 

 

That is interesting Coughdrop. As I read it that seems to imply that the Notice should be delivered by hand since there is no guarantee that a notice in the post

will be delivered and therefore the alleged debtor may not receive the notice. In other words the old bailiff excuse that the letter was sent is sufficient and that it does not need to be proved to have been delivered is wrong. It appears that it is encumbent on the EA to ensure that the NOE is given.

Read page 3 leading into page four. It explains it all. Notice must be given by one of the following means etc. Some people just pick the bits of an act that interest them and ignore the rest.

http://www.legislation.gov.uk/uksi/2013/1894/pdfs/uksi_20131894_en.pdf

Yes, Grumpy, I know this. The question is are the EA's reading it mean something which may suit them better? Is there advice out there which says NOE's must be given? If there is, we need posts like yours above to clarify the situation. Thanks for the link.

Some people just pick the bits of an act that interest them and ignore the rest.

Touché

I have sent them

The requirement that the NoE must be "given" does not mean it must be 'handed’ to the debtor. The Regulation makes no reference to it having to be ‘received’ in order for the procedure to have been followed.

Under Section 7 of The Interpretation Act 1978, service of the NoE is deemed to have been effected by “addressing, pre-paying and posting it.” It also makes it clear that the word 'give' is also construed as 'post'.

S7: "Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."

According to the Royal Mail, 1st class post should be delivered the next working day and 2nd class, within 2-3 working days. Saturdays are said to be working days as far as Royal Mail is concerned.

The 7 clear days, therefore, begins the day after it is expected to be delivered (“in the ordinary course of post”) – because the clear days cannot include the day the period starts or ends. If I post a NoE today (Thursday 26th) by 2nd class post it will be deemed to have been ‘given’ on either Saturday 27th or at the latest by Monday 1st March. Taking the latter as the day the period starts, then the 7 clear days will be Tuesday, Wednesday, Thursday, Friday, Saturday, Monday and Tuesday, Enforcement can then commence on Wednesday 9th March.

Using the best practice 14 day period the letter would have stated that if payment is not made by 2359 hours on 12th March we will attend on or after the 13th March – 4 days after the actual 7 clear day period. Even when, during Easter, there are two bank holidays on Friday and Monday, the 14 day rule will provide the necessary days (without any computer having to work out when bank holidays occur) and two days’ grace.

Finally, as noted by others, the vast majority of us agreed to provide 14 days’ notice from the date the NoE is posted in order to cover Sundays and any Bank Holidays that might be within any given period. This makes it easier for us and is fairer on the debtor whose mail is not delivered as speedily as it perhaps should be.

NB. The reason Sundays and Bank Holidays are not included in the ‘clear days’ despite the fact that enforcement can take place on a Sunday or Bank Holiday is that post is not delivered on these days.

Don't think they can enforce on bank Holidays yet, or we would have had panic calls for help on Christmas Day, as a bailiff would not be able to resist calling on someone to ruin the day.

Don't think they can enforce on bank Holidays yet, or we would have had panic calls for help on Christmas Day, as a bailiff would not be able to resist calling on someone to ruin the day.

There are no restrictions on the day of the week only the hours. Goods may be seized 365 days a year.

blfuk1

Your explanation about the date and service of the Notice of Enforcement is extremely useful and reinforces the position. I would be interested in your views on the following:

If a debtor receives a visit from a bailiff and states that they had not received a prior Notice of Enforcement does this mean that the enforcement fee and the compliance fee are invalid?

In the above scenario, should a debtor visit a solicitor to get a Statutory Declaration to swear on oath that they had not received a Notice of Enforcement?

this is a really interesting scenario.

Normally, receipt is assumed, so if notice being 'given' is defined as stated, then as long as the letter is posted, receipt would be assumed two working days later (if sent 1st class).

This is slightly worrying as there is nothing to stop an enforcement company saying it was posted when it wasn't.

There is no onus on them to provide proof of posting.

This is consistent with it being able to be hand delivered where there is no way of the EA proving they put it through the letterbox (or correct letterbox).

I'll be interested to read the reply to your question Bailiff Advice, as it would appear to me that without a Stat Dec, enforcement would simply continue - receipt is assumed so the EA has every right to assume that the NoE has been received.

Given the number of cases we're seeing where the debtor claims no NoE having been received, this is very significant.

If this is the case, I doubt it would have been the intent of parliament.

There are no restrictions on the day of the week only the hours. Goods may be seized 365 days a year.

sorry but that is incorrect.

Enforcement should not be undertaken on christmas day or on good friday. You are correct about the times (6am - 9pm)

the ministry of justice taking control of goods national standards point 55 also states that Enforcement agents should respect other cultures and religions at all times and consider if it appropriate to enforce on any day of religious festivals.

Should not, not must not.

We can enforce on ANY day including Xmas day.

But ill be ....if I'm going out on Xmas day to enforce.

I have a feeling I wouldn't live to see the next day.

Legally beaten to death by milk bottle to the head one would imagine.

The compliance fee is due ass soon as the account is passed for action to the EA. So the receipt of the notice by the debtor would not be relevant to this charge. It must be remembered that this will not be the first notice the debtor will have received notice would have been sent by the creditor that the account was going to be passed for enforcment and of course all the other notices and reminders.

If a SD is sent at enforcment stage and if agreed that no notice was sent, the enforcment would be re-wound back to the point where the letter was sent. The 7 days compliance stage given and then the enforcment stage. The original enforcment stage fee would be lost.

The debtor must be given the chance to comply.

I agree with all the above. I think we have to change the statement which we saw on here previously of 'Bailiffs lie!' to 'Bailiffs and debtors lie!' unless the postal system has gone absolutely terrible since April 2014. There are simply too many people not receiving letters for my liking, I find it very hard to believe. There will always be some, but not the number we're seeing.

If a Stat Dec is signed, they need to remember they are committing perjury if they had received prior notice. It only takes one enforcement company to be able to prove this and they would be in trouble.

Of course Coughdrop bailiffs weren't getting £235 in those days just for turning up.

Plus they never did like the fact that a debtor had to be informed of their visit.

And there are a couple of bailiff companies who do run very close to the mark.

I'm not saying that some debtors don't lie and I haven't conducted a survey,

but my gut feeling is that most people who come on the EA section are usually first timers in a panic and they don't appear to say in their first letter that they did not

receive the NOE.

It would be interesting to know by how much going into a debtor's house to take control of goods has plummeted since the change in the Law that requires EAS to identify each item they list when they can make the same money just by turning up, posting a letter and leaving.

I haven't seen any up to date info on undelivered mail but many reports of morale being at rock bottom. Postmen are being asked to deliver more mail without

increasing their hours or pay which inevitably leads to some of them simply not delivering the whole of the mail allotted to them. And things may have gone

downhill since the privatisation with staff laid off etc.

All reports I have heard seem to indicate that many more people are now engaging with EAs at enforcment stage, and this has got to be good news for all concerned IMHO.

The enforcement fee stage was set at the value because it was envisaged that the agent would spend time with the debtor, addressing not only the creditors interests but also the debtors ability to pay. ]

If done correctly this can be a time consuming process.

In my view this particular practice is in its infancy and the skills required, changes in perception of the roles of the EA which will enable this more productive interaction will develop as time goes by, anyway here is hoping.

Yes, I'm pleased you qualified that.

If conducted as was the intent, then it would be a good thing, and it is good more people are engaging with things early on (though would still be better if they engaged before it even got to bailiffs).

Avoiding the next fee of £235 is critical.

The Compliance Stage was to provide time to look at an affordable repayment plan.

I don't know how much this is happening.

One reads a lot about EA's demanding payment in full and refusing repayment plans which is clearly unhelpful.

Re the people not receiving a NoE, I was actually referring to an overall picture, not one built purely from this forum.

Yes it is encouraging, although as you say a shame that it takes the shock of getting a letter form the bailiff to focus debtors minds.

Equally as you quite rightly say, the mind set of the EA has to change, they must be "encouraged" by whatever means to consider reasonable offers of settlement in the compliance stage, I have no idea how this will be accomplished as the financial benefits of letting the enforcment proceed to the next level are quite obvious.

Just looking through the regs and there is no mention af any sanction for none issuance of a notice, so I suppose this will be a matter for future case law, although it does seem to me to make sense that the debtor should have chance to make a deal before the knock on the door.

There is also the matter of the binding of the interest in the goods, although not mentioned on the statutory form, this process will have begun upon the issuance of the warrant, the notice would be the only way the debtor could be held liable for this as before he could say he did not know.

I suspect it will continue to be a case of making a stat dec to roll it back to the compliance stage so people have a chance to sort out a repayment agreement.

Coughdrop said:

I suspect it will continue to be a case of making a stat dec to roll it back to the compliance stage so people have a chance to sort out a repayment agreement.

Yes I dare say that it will be another one of the legitimate avenues of protection which will be abused by certain quarters to the extent that it will be shut down.

Dodgeball said:

Yes it is encouraging, although as you say a shame that it takes the shock of getting a letter form the bailiff to focus debtors minds. Equally as you quite rightly say, the mind set of the EA has to change, they must be "encouraged" by whatever means to consider reasonable offers of settlement in the compliance stage, I have no idea how this will be accomplished as the financial benefits of letting the enforcment proceed to the next level are quite obviou

There is also the matter of the binding of the interest in the goods, although not mentioned on the statutory form, this process will have begun upon the issuance of the warrant, the notice would be the only way the debtor could be held liable for this as before he could say he did not know.

This throw away remark seems to have confused some. I suppose it is not unexpected.many think that the ability to bind goods is the same as seizure, it isn't of course. It is a feature which did not exist under the old regime. Shall I explain its use within the tce ?

Seeing as though nobody else has shown an interest in your offer to explain the difference between binding, gluing, seizing, amalgamating or whatever the terminology you are wishing to apply to your argument, I would be happy for you to differentiate.

Yes there is a fundamental difference, the process of binding the interest in goods"in the hands of the debtor", used to occur at execution of the warrant, now it occurs when the warrant is issued to the agent, or if there is no facility to acknowledge receipt when a section 7 notice of enforcement is sent.

It basically removes the debtors ability to transfer an interest in his goods whilst the enforcment power is active.

Seizure transfers the interest to the EA/creditor.

If there is an interest i will start a new thread and go through he legislation, but basically that is the gist of it.

The definition has been wildly misinterpreted in various FMOTL forums and this had led to incorrect advice being given on many occasions.

I should add that the binding effect on the debtors goods does not extend to exempt goods and also that it does not effect the transfer of title made in good faith if the debtor was not aware of the issuance of the writ/ warrant.

I should also add a thanks to John Kruse's book "Taking control of goods volume 4" for clarifying this interesting point to me, for anyone interested in further reading on this or any other bailiff related matters I cannot recommend it to highly.

apologies for hijacking the ops thread, it was kind of relevant, although as I said just a point in passing really