Enforcement Notice: How long is 7 clear days

[ploddertom]

PART 2

PROCEDURE FOR TAKING CONTROL OF GOODS

Notice of enforcement prior to taking control of goods

 

Minimum period of notice

6. (1) Subject to paragraph (3), notice of enforcement must be given to the debtor not less than 7 clear days before the enforcement agent takes control of the debtor’s goods.

 

(2) Where the period referred to in paragraph (1) includes a Sunday, bank holiday, Good Friday or Christmas Day that day does not count in calculating the period.

 

(3) The court may order that a specified shorter period of notice may be given to the debtor.

 

(4) The court may only make an order under paragraph (3) where it is satisfied that, if the order is not made, it is likely that goods of the debtor will be moved to premises other than relevant premises, or otherwise disposed of, in order to avoid the goods being taken control of by the enforcement agent.

 

Form and contents of notice

7. Notice of enforcement must be given in writing, and must contain the following information—

 

(a)the name and address of the debtor;

 

(b)the reference number or numbers;

 

©the date of notice;

 

(d)details of the court judgment or order or enforcement power by virtue of which the debt is enforceable against the debtor;

 

(e)the following information about the debt—

 

(i)sufficient details of the debt to enable the debtor to identify the debt correctly;

 

(ii)the amount of the debt including any interest due as at the date of the notice;

 

(iii)the amount of any enforcement costs incurred up to the date of notice; and

 

(iv)the possible additional costs of enforcement if the sum outstanding should remain unpaid as at the date mentioned in paragraph (h);

 

(f)how and between which hours and on which days payment of the sum outstanding may be made;

 

(g)a contact telephone number and address at which, and the days on which and the hours between which, the enforcement agent or the enforcement agent’s office may be contacted; and

 

(h)the date and time by which the sum outstanding must be paid to prevent goods of the debtor being taken control of and sold and the debtor incurring additional costs.

Method of giving notice and who must give it

8. (1) Notice of enforcement must be given—

 

(a)by post addressed to the debtor at the place, or one of the places, where the debtor usually lives or carries on a trade or business;

 

(b)by fax or other means of electronic communication;

 

©by delivery by hand through the letter box of the place, or one of the places, where the debtor usually lives or carries on a trade or business;

 

(d)where there is no letterbox, by affixing the notice at or in a place where it is likely to come to the attention of the debtor;

 

(e)where the debtor is an individual, to the debtor personally; or

 

(f)where the debtor is not an individual (but is, for example, a company, corporation or partnership), by delivering the notice to—

 

(i)the place, or one of the places, where the debtor carries on a trade or business; or

 

(ii)the registered office of the company or partnership.

 

(2) Notice must be given by the enforcement agent or the enforcement agent’s office.

 

The above is taken from

http://www.legislation.gov.uk/uksi/2013/1894/made?view=plain

[ploddertom]

As can be seen from above a debtor if issued with an Enforcement Notice for non-payment of a debt must be given "not less than 7 clear days" which if the period "includes a Sunday, bank holiday, Good Friday or Christmas Day that day does not count in calculating the period" which in most peoples minds should therefore be 8 days as most weeks do contain a Sunday.

 

A good point to take is 10 April 2014, which so happens to be a Thursday. Working on the principle of deemed deliveries then an item posted on the Thursday by a first class service - be it Royal mail or A N Other - then it would be safe to assume that would be delivered on Saturday 12 April 2014 and 7 clear days would take us to 21 April 2014. If the letter is sent 2nd class then an additional 3 days should be allowed.

 

Why therefore are some Enforcement Co's - taking 10 April as an example - stating the 7 days will be up on 17 April. It appears that a letter dated on a Thursday may not be picked up until the following day by the chosen mail provider DHL/UK Mail etc and going on their snail service which means it isn't delivered until 16 April leaving just 1 day.

 

Is this being done on purpose so they can say no contact has been made so a visit ensues at an extra £235. If anyone has had this happen I would like to hear from you, information required will be:

i - date of letter

ii - date received

iii - mail service used

Again it looks as if some Enforcement Co's are abusing the system and before complaints to the MOJ are made some proof must be collected.

[brassnecked]

I am afraid your assumptions are entirely correct PT, as in letter arrives on or after the 7 days are up, allowing the new juicy fees to be applied, with no opportunity for debtor to avoid them.

 

Surely MOJ thought this through? Obviously not.

 

PT's list of abuses such as this are important too feed back to MOJ where the failings are..

[tomtubby]

What a BRILLIANT thread by Ploddertom!!!!

 

I have plenty of comments but busy until later.....

[tomtubby]

Sorry,

 

After just posting the above link I have opened an email with a copy of a Notice of Enforcement from a large company. At first glance the document appears to be very well completed but would welcome comments on the dates.

 

The document states:

 

Date Notice Issued: 10th April 2014

 

Date when payment must be made: 17th April 2014

 

 

PS: The 10th April was a Thursday.

[tomtubby]

The following link is to a rather long judgment that I meant to read a while ago but forgot about:

 

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2012/1351.html&query="Interpretation+and+Act"&method=boolean

[tomtubby]

Unclebulgaria67

 

Can you post your above query on the Taking Control of Goods discussion thread and I will look at answering it later today.

[HCEOs]

PT, I think you have missed a point.

 

As I understand it, Part 6 of the Civil Procedures Rules applies to 'service' but the Taking Control of Goods Regulations 2013 applies to the 7 clear days.

 

This means that service (postage) cannot include a Saturday, Sunday or Bank Holiday but the 7 clear days clears days can include a Saturday but cannot include Sundays and Bank Holidays.

 

So, if a letter is posted 1st class on a Thursday the date of service is Monday. That is not a clear day so the 7 start from Tuesday....

[ploddertom]

PT, I think you have missed a point.

 

As I understand it, Part 6 of the Civil Procedures Rules applies to 'service' but the Taking Control of Goods Regulations 2013 applies to the 7 clear days.

 

This means that service (postage) cannot include a Saturday, Sunday or Bank Holiday but the 7 clear days clears days can include a Saturday but cannot include Sundays and Bank Holidays.

 

So, if a letter is posted 1st class on a Thursday the date of service is Monday. That is not a clear day so the 7 start from Tuesday....

 

Many thanks HCEOs for this as I was trying to err on the side of caution, but if it is as you say then 7 clear days from a Tuesday takes us to the following Tuesday. using the example I started with then a letter dated Thursday 10 April gives 7 clear days by Tuesday 22 April. If that is the case then the Enforcement Notice Tomtubby has mentioned is well out and I suppose could cast doubt on it.

[HCEOs]

Thursday Day 0 = Post the letter 1st class

Friday Day 1 = Letter in transit

Saturday Day 2 = EXCLUDED (CPR6)

Sunday Day 3 = EXCLUDED (CPR6/TCGR)

Monday Day 4 = Deemed date of service/delivery

Tuesday Day 5 = 1st day of 7 clear days

Wednesday Day 6 = 2nd day of 7 clear days

Thursday Day 7 = 3rd day of 7 clear days

Friday Day 8 = 4th day of 7 clear days

Saturday Day 9 = 5th day of 7 clear days

Sunday Day 10 = EXCLUDED (TCGR)

Monday Day 10 = 6th day of 7 clear days

Tuesday Day 11 = 7th day of 7 clear days

Wednesday Day 12 = ENFORCEMENT DAY.

[tomtubby]

HCEO.....I am pleased to read your thoughts on this very important point.

 

Viewers to this thread may wish to read the opinion of senior MP's when debating 'clear days' for inclusion in the Company Law Reform Bill.

 

 

 

http://www.theyworkforyou.com/pbc/2005-06/Company_Law_Reform_Bill/09-0_2006-06-29a.7.0?s=%22clear+days%22#g7.9

 

I particularly liked the following comments from the Shadow Solicitor General; Jonathan Djanogly:

 

 

 

Jonathan Djanogly(Shadow Solicitor General (Also Shadow Minister for Trade and Industry), Law Officers (Assist the Home Affairs Team); Huntingdon,Conservative)

 

My hon. Friend has invoked a memory from the back of my head that if one follows the clear days’ path in the articles, it is three extra days, and if one follows the path through the statutory route, it is two extra days. I see nods from civil servants. I think my hon. Friend is saying that it would be easier if we simply said what it was and then everybody would be clearer.

 

 

 

 

Jonathan Djanogly(Shadow Solicitor General (Also Shadow Minister for Trade and Industry), Law Officers (Assist the Home Affairs Team); Huntingdon,Conservative)

 

Another memory is triggered: I do not have the statistics to prove this, but it is probably the most common way in which notices are got wrong. It happens frequently with great embarrassment for all parties.

[tomtubby]

The following is from a Legal Dictionary:

 

"Where a Statute or rule prescribes a certain number of clear days, for the doing of any act, the time is to be reckoned excluding the first as well as the last days"

[HCEOs]

The funny thing is that they use the word 'clear' and it is anything but...

[tomtubby]

HOWEVER

 

The following is taken from Stones Justice's Manual (which is a highly respected Manual used by Judges in Magistrate's Courts in England & Wales):

 

"The running of a statutory period often excludes the first day and includes the last day but a number of phrases and words have been construed as meaning 'clear days' thus EXCLUDING the day of the commencing event and the day of the resulting happening"

 

It would seem that the definition of 'clear days' is as clear........as paint !!!

[tomtubby]

I understand that CIVEA have provided some 'Guidance' on this matter. I am waiting for a copy (which hopefully will be with me in the next day or so).

[tomtubby]

I have just read a scan of another Notice of Enforcement for an unpaid PCN. The notice is dated 9th April (Wednesday) and advises that to avoid the debt increasing by £235 the debt must be paid by Friday 17th April (which was Good Friday).

 

The other Notice of Enforcement that I wrote above stated that payment had to me made by 23.59pm on 17th April.

 

This particular notice (from Newlyn) states that payment has to be made by a different time...........

 

3PM !!!!!

[HCEOs]

There is no guidance on the time that the debt must be paid.

 

Clearly some are using midnight, others close of business and others that latest time a bank transfer can be made.

[tomtubby]

I am very concerned at the moment with what I am seeing and we are only in the early days !!!!

[brassnecked]

I am very concerned at the moment with what I am seeing and we are only in the early days !!!!

 

The whole Taking Control of Goods regs are going to rebound on MOJ with a vengeance and bite them. There is still a lack of clarity and wriggle room for the nad elements in enforcement to misbehave, with impunity.

 

It is extremely worrying.

[unclebulgaria67]

I am very concerned at the moment with what I am seeing and we are only in the early days !!!!

 

Why do legislators over complicate the law they write. They should have just said say 14 calendar days from the date the notice is served and then it is easy for everyone to work out.

[brassnecked]

Why do legislators over complicate the law they write. They should have just said say 14 calendar days from the date the notice is served and then it is easy for everyone to work out.

 

They either don't use common sense, or think they are more clever than they actually are.

[HCEOs]

The regulations were rushed through to meet a Government target that was unreasonable. Much of the work appears to have been done in the final months with 'drafts' just being put through without amendment.

 

I can assure you this is as much of a headache for the enforcement industry as it is for the debtors.

[brassnecked]

The regulations were rushed through to meet a Government target that was unreasonable. Much of the work appears to have been done in the final months with 'drafts' just being put through without amendment.

 

I can assure you this is as much of a headache for the enforcement industry as it is for the debtors.

 

I don't doubt that for one minute HCEOs, and can see issues for ethical enforcers as well as debtors. Already we are seeing liberal and greedy interpretations, and potential abuse of the transitional arrangements, with levies some dodgy anyway being abandoned to apply the new fee scale.

[mikeymack2002]

Thursday Day 0 = Post the letter 1st class Do EA's use 1st class if not then if they use 2nd class time MUST be adjusted to comply with this

Friday Day 1 = Letter in transit

Saturday Day 2 = EXCLUDED (CPR6)

Sunday Day 3 = EXCLUDED (CPR6/TCGR)

Monday Day 4 = Deemed date of service/delivery only if 1st class post is used this goes for the next days accordingly if second class used then different

Tuesday Day 5 = 1st day of 7 clear days

Wednesday Day 6 = 2nd day of 7 clear days

Thursday Day 7 = 3rd day of 7 clear days

Friday Day 8 = 4th day of 7 clear days

Saturday Day 9 = 5th day of 7 clear days

Sunday Day 10 = EXCLUDED (TCGR)

Monday Day 10 = 6th day of 7 clear days

Tuesday Day 11 = 7th day of 7 clear days

Wednesday Day 12 = ENFORCEMENT DAY.

 

 

All the above dates are subject to the EA office using 1st class mail, if they use second class mail they need to adjust the timings, so in reality it is advised that the debtor keep the envelope to prove the cost and type of postage used by the EA, if the EA's then claim that it was posted otherwise the debtor will have proof that a particular method was used.

 

 

The MOJ should clarify what is deemed a clear day, like these comments. Also they should state which postage MUST be used, i.e. all mail should be sent 1st class, this will allow the debtor an extra day to respond to any communications received!

As with most debt it is based on working days not calendar days, again this should be clarified by the MOJ asap, again the MOJ has allowed the EA to use its discretion and allow them to interpret this in their own way.

MM

[brassnecked]

As many of them use TNT Post or Datapost it can be longer than second class as in Third Class taking 5 days or more, from the date on the letter.