Magistrate Court FINES and the new bailiff regulations...Reply from the Ministry of Justice.

[tomtubby]

For at least the past 6 years on this forum there have been posts from debtors questioning whether bailiffs enforcing Magistrate Court FINES may charge fees when enforcing a Distress Warrant. I have written extensively in the past on this subject outlining the legal basis for the charging of fees and in fact, I also posted a copy of a Formal response from the Ministry of Justice where they too outlined the legal basis for a bailiff charging fees.

 

On 6th April the enforcement of unpaid Magistrate Court FINES now forms part of the new bailiff regulations and is included under the "Schedule 12 Procedure' outlined in the Tribunal Courts & Enforcement Act 2007. For those interested; the relevant amendment was introduced under Schedule 13 of the TCE Act 2007.

 

The enforcement of Magistrate Court fines is now enforced in the same way as that of an unpaid PCN or liability order and attracts the same fee (Compliance fee of £75 and Enforcement fee of £235).

[tomtubby]

"I am replying as a policy official working on civil enforcement policy.

 

I am not able to provide advice or comment on any legal points you have raised. I hope that it may be helpful, however, to set out the provisions in the Tribunals, Courts and Enforcement Act 2007 and underpinning regulations that apply to enforcement agents which may address some of your issues.

 

By virtue of section 62 of the Tribunals, Courts and Enforcement Act 2007, the power conferred by a writ or warrant of control to recover a sum of money is exercisable only by using the procedure in Schedule 12 to that Act ("the Schedule 12 procedure"), and warrants of distress are renamed warrants of control so that the Schedule 12 procedure must be used for what were previously warrants of distress for recovery of unpaid fines and are now renamed as warrants of control (see also the amendment of the Magistrates' Courts Act 1981 by paragraph 46 of Schedule 13 to the 2007 Act).

 

The Taking Control of Goods (Fees) Regulations 2014 make provision for the recovery of fees and disbursements from debtors by enforcement agents in relation to the procedure for taking control of goods under Schedule 12 to the Tribunals, Courts and Enforcement Act 2007. Regulation 4(3) provides that the enforcement agent may recover under this regulation the whole fee provided in the Schedule for a stage where the amount outstanding is paid after the commencement, but before completion, of that stage.

 

Regulation 5 sets out the stages of enforcement for which fees may be recovered where enforcement is other than under a High Court writ (and so covers enforcement under, for example, a warrant issued by a magistrates' court).

 

The enforcement power under Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 is for the amount outstanding which is defined in paragraph 50(3). The amount outstanding is the sum of these -

 

(a) the amount of the debt which remains unpaid (or an amount that the creditor agrees to accept in full satisfaction of the debt;

 

(b) any amounts recoverable out of proceeds in accordance with regulations under paragraph 62 (costs).

 

 

The regulations under paragraph 62 (costs) are the Taking Control of Goods (Fees) Regulations 2014 referred to above

 

Paragraph 50(2) of Schedule 12 states that " Proceeds are any of these -

 

(a) proceeds of sale or disposal of controlled goods

 

(b) money taken in exercise of the power ".

 

Regulation 4(2) of the Taking Control of Goods (Fees) Regulations 2014 provides for the enforcement agent's fees to be recovered out of proceeds. There are no other provisions for recovery.

 

 

Paragraph 17 of Schedule 12 provides for an enforcement agent, if necessary, to use reasonable force to enter premises or to do anything for which entry is authorised.

 

Paragraph 18(b) of Schedule 12 sets out as a qualifying condition for the use of force that the enforcement agent is acting under an enforcement power conferred by a warrant of control under section 76(1) of the Magistrates Court Act 1980 for the recovery of the sum adjudged to be paid by a conviction. Paragraph 18© sets out a condition that the enforcement agent is entitled to execute a warrant by virtue of section 125A (civilian enforcement officer) or 125B (approved enforcement agencies) of that Act.

 

Paragraph 27 of Schedule 12 provides that the enforcement agent may take other people on the premises and they may assist him in exercising any power, including the power to use force.

 

An enforcement agent can secure a vehicle other than on a highway under Regulation 17 of the Taking Control of Goods Regulations 2013, and can secure a vehicle on a highway under Regulation 18 of those Regulations"

 

 

Regards

 

Enforcement Reform

Ministry of Justice | 4th Floor post point 4.37 | 102 Petty France | London SW1H 9AJ

[seanamarts]

So just to be clear and so that I and some others can understand it, in laymans terms, a bailiff who has been instructed by the court to collect the fine, can still enforce his fees if the debtor has paid the fine via the courts.

 

Please correct me if I am wrong

[brassnecked]

I would say that is correct seanamarts. What concerns me is if these EA's try to imply their right to force entry next visit at their convenience for a council PCN or council tax, by saying all enforcement is the same now

[tomtubby]

So just to be clear and so that I and some others can understand it, in layman's terms, a bailiff who has been instructed by the court to collect the fine, can still enforce his fees if the debtor has paid the fine via the courts.

 

Please correct me if I am wrong

 

I am desperately trying to put together a 'Simplified Guide' to the new regulations and just need a few 'quite days'. In the meantime, the following may assist:

 

The starting point is that under the new regulations the 'amount outstanding' is calculated as being the amount of the debt (to the creditor (ie local authority or HMCS etc) together with the enforcement agent fees calculated up to the point of payment.

 

If the case of a court fine (for example) if payment is made either to the ATM 'drop box', paid on-line or paid to the bailiff or his office the payment is referred to as 'proceeds' and the regulations are clear in that from the 'proceeds' the Compliance fee of £75 is deducted at source and the remainder of the payment is then distributed on a pro rate basis with some of the payment going towards the actual fine and some towards the 'enforcement fee'.

 

It may help if I give an example. I will get this done shortly.

[tomtubby]

Seamanarts.

 

I will answer your post in depth later this evening.

[seanamarts]

Cheers TT Please dont make it too complicated as my brain is really frazzled after the day I have had

 

While I am here can you pop over to my thread and have a look PCN - Marstons. Thanks

[tomtubby]

The first point that needs to be made is that the Compliance fee of £75 is chargeable as soon as the account is referred to the enforcement company and the Enforcement fee of £235 is chargeable as soon as the account is referred to an individual bailiff This is completely different from the previous regulations. In the following example I will assume that the debtor has an unpaid Magistrate Court FINE for £575.

 

Magistrate Court fine: £575

 

Notice of Enforcement sent to debtor. Compliance fee of £75 added to debt. Amount due: £650

 

Debtor fails to pay and account referred to enforcement agent to enforce.

 

Enforcement fee of £235 added to account. Amount due: £885

 

Debtor visits court and makes a payment of the amount of the fine of £575

 

From 6th April HMCS forward all payments to the relevant enforcement company.

 

Compliance stage fee of £75 deducted at source leaving the balance of £500 to be split on a 'pro rata' basis.

 

The 'pro rata 'spilt' is slightly complicated but for ease of reference, is 70% to the creditor and 30% to the enforcement agent.

 

The £500 will be split as to £350 to the creditor (70%) and £150 to the enforcement agent (30%).

 

Using this example you will see that from the £575 payment made to the Magistrate Court....£350 is allocated towards the court fine and £225 (comprising of the Compliance fee of £75 and £150) is allocated towards the enforcement agent fees.

 

The amount outstanding has been reduced to £310. This comprises of the balance of the fine of £225 and £85 enforcement agent fees. Given that there is still an amount outstanding the warrant of control is still enforceable and it is important for the debtor to be aware that the enforcement agent is not continuing enforcement for his fees.

[brassnecked]

That pretty much wraps it up indicating the "other" advice regarding EA fees is completely wrong especially from April 6th.

 

However under the new regime will the EA be more insistent and aggressive in demanding in a full payment and less likely to want to allow a payment plan? As due to the split they will be waiting a long time for their cut.

[*RainbowTears*]

The first point that needs to be made is that the Compliance fee of £75 is chargeable as soon as the account is referred to the enforcement company and the Enforcement fee of £235 is chargeable as soon as the account is referred to an individual bailiff This is completely different from the previous regulations. In the following example I will assume that the debtor has an unpaid Magistrate Court FINE for £575.

 

Magistrate Court fine: £575

 

Notice of Enforcement sent to debtor. Compliance fee of £75 added to debt. Amount due: £650

 

Debtor fails to pay and account referred to enforcement agent to enforce.

 

Enforcement fee of £235 added to account. Amount due: £885

 

Debtor visits court and makes a payment of the amount of the fine of £575

 

From 6th April HMCS forward all payments to enforcement company.

 

Compliance stage fee of £75 deducted at source leaving the balance of £500 to be split on a pro rata basis.

 

The 'pro rata 'spilt' is slightly complicated but for ease of reference is 70% to the creditor and 30% to the enforcement agent.

 

The £500 will be split as to £350 to the creditor (70%) and £150 to the enforcement agent (30%).

 

Using this example you will see that from the £575 payment made to the Magistrate Court....£350 is allocated towards the court fine and £225 (comprising of the Compliance fee of £75 and £150) is allocated towards the enforcement agent fees.

 

The amount outstanding has been reduced to £310. This comprises of the balance of the fine of £225 and £85 enforcement agent fees. At there is still an amount outstanding the warrant of control is still enforceable and it is important for the debtor to be aware that the enforcement agent is not continuing enforcement for his fees.

 

 

TT, Your example above, makes it extremely crystal clear to "anyone" in doubt how the new EA regs apply!!

 

Personally I don't think you could have made it any simpler or clearer!!

 

It will most certainly help, those that require it, to understand the EA fees/process & how the proceeds are dispersed.

Edited July 2, 2014 by ims21

[tomtubby]

Thank you for your comments and the many messages that I have received overnight thanking me for this example.

 

As you will see from the above, from 6th April it is impossible to avoid paying bailiff fees. The fee scale itself had been calculated a few years ago by an Economist on the instructions of the Ministry of Justice and he also devised the 'pro rata' way of splitting the payment. Enforcement companies knew a long time ago that the new regulations would provide for 'pro rata' division of payments and their computer systems are set up to calculate the distribution.

[tomtubby]

 

However under the new regime will the EA be more insistent and aggressive in demanding in a full payment and less likely to want to allow a payment plan? As due to the split they will be waiting a long time for their cut.

 

 

You are absolutely right and this is the precise reason why you will always see from my posts that I urge debtors to contact the enforcement company as soon as they receive a Notice of Enforcement. It is at this stage that all companies are urged to consider a sensible payment proposal.

[tomtubby]

To ensure that this thread does not go 'off topic' I have copied the above 'example' onto the Taking Control of Goods Discussion thread:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?421480-The-Taking-Control-of-Goods-Regulations-2013.-A-general-discussion-thread.......&p=4567036#post4567036

[unclebulgaria67]

What happens when a court does not pass on the money to the bailiff company ? I ask this, as I can see people phoning the courts and the courts staff confirm that the fine has been paid in full, with no sum passed to bailiffs. Then the argument about 'proceeds' starts and that the bailiff is not entitled to fees. You can bet that there will be people who will find an angle to continue giving out information that appears to offer a loophole.

 

There is still the issue of bailiffs visiting debtors without original signed/stamped paperwork from the courts. It would save them a lot of hassle, if they had the proper paperwork and not what has been commented, as just photcopies of documents which don't appear to have been seen by the courts.

[brassnecked]

You are absolutely right and this is the precise reason why you will always see from my posts that I urge debtors to contact the enforcement company as soon as they receive a Notice of Enforcement. It is at this stage that all companies are urged to consider a sensible payment proposal.

 

We will have to be vigilant and look at all the enquirers circumstances, as even if a debtor takes that advice, we will need top collate and record cases where the EA has refused any reasonable offer in the debtors particular circumstances, and escalated to an Enforcement Stage Visit, in order to add the £235. I consider that will be an issue cropping up with a monotonous regularity in future.

[tomtubby]

Unclebulgaria and brassnecked.

 

Would it be possible to raise both of your questions on the Taking Control of Goods discussion thread. If anyone has any questions on the points outlined by the Ministry of Justice then such queries should stay on this thread and I will do my best to respond.

[tomtubby]

The following is a copy of the post as referred to above (the blue highlighting is mine)

 

 

"The schedule in the Tribunals, Courts and Enforcement Act 2007 (Consequential, Transitional and Saving Provision) Order 2014 has 9 sections:

 

http://www.legislation.gov.uk/uksi/2014 ... edule/made

 

Section 1 deals with magistrates courts.

 

Section 3 deals with council tax

 

Section 8 deals with high court enforcement officers. As you can see. under section 8, it amends the HCEO fee schedule and introduces a new fee table in table 2*of the Schedule of the Taking Control of Goods (Fees) Regulations 2014.

 

Whereas, if you look at sections 3 it has introduced the fees table the Taking Control of Goods (Fees) Regulations 2014.

 

Now look at section 1 - magistrates court rules. It does not introduce any fee table for the recovery of unpaid court fines"

[seanamarts]

TT, Your example above, makes it extremely crystal clear to "anyone" in doubt how the new EA regs apply!!

 

Personally I don't think you could have made it any simpler or clearer!!

 

It will most certainly help, those that require it, to understand the EA fees/process & how the proceeds are dispersed.

 

totally agree with you there

 

 

Thank you TT that has made it much clearer

[tomtubby]

In relation to the post that I copied a few moments ago I will shortly be providing a simple explanation as to why the arguments posed by that person are incorrect.

 

In the first instance it is important to note the opening paragraph from the Ministry of Justice's letter:

 

"By virtue of section 62 of the Tribunals, Courts and Enforcement Act 2007,the power conferred by a write or warrant of control to recover a sum of money is exercisable only by using the procedure in Schedule 12 to that Act ("the Schedule 12 procedure"), and warrants of distress are renamed warrants of control so that the Schedule 12 procedure must be used for what were previously warrants of distress for recovery of unpaid fines and are now renamed as warrants of control (see also the amendment of the Magistrates' Courts Act 1981 by paragraph 46 of Schedule 13 to the 2007 Act)"

 

Note: The emphasis is that recovery of money will be in accordance with the 'Schedule 12 procedure' of the Tribunal Courts & Enforcement Act 2007.

[tomtubby]

I have many times stated on the forum that there is nothing easier than 'cutting and pasting' links to legislation. It is child's play. The difficulty is in actually understanding the legislation. That is far more difficult.

 

In arguing that the new legislation does not 'provide a fee scale' for the recovery of unpaid Magistrate Court fines the poster refers to the following legislation:

 

http://www.legislation.gov.uk/uksi/2014 ... edule/made

 

In fact, if he were to read this legislation properly he would note that it amends previous legislation to provide that from 6th April each debt type may only recover the debt by way of the 'Schedule 12 procedure' as outlined above. For example; the legislation states as follows:

 

 

 

Section 1:Magistrate Court. Amendment of Magistrates’ Courts Rules

 

(d) (cc) for “levy the said sum by distress and sale of the goods belonging to the said person substitute “recover the said sum from the debtor by way of the Schedule 12 procedure"

 

 

 

Section 2: Amendment of Non-Domestic Rating (Collection and Enforcement) Regulations

 

“Enforcement by taking control of goods

 

14. Where a liability order has been made, payment may be enforced by using the Schedule 12 procedure.”;

 

 

 

Section 3.Amendment of Council Tax (Administration and Enforcement) Regulations

 

45. Where a liability order has been made, payment may be enforced by using theSchedule 12 procedure.”;

 

 

 

Section 5:Amendment of Enforcement of Road Traffic Debts Order

 

in paragraph (4), for “execution” substitute “the use of the Schedule 12 procedure”;

 

 

Note:

 

For the avoidance of doubt, the Schedule 12 procedure is to be used to each debt type (including Magistrate Court fines). Each debt type has the same fee scale scale (Compliance fee of £75 and Enforcement fee of £235).

 

PS: If anyone has any questions...please post back. I will do my best to answer.

[mikeymack2002]

For clarity I saw this some time ago and commented on it the quote is as follows

 

 

The enforcement power under Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 is for the amount outstanding which is defined in paragraph 50(3). The amount outstanding is the sum of these -

 

(a) the amount of the debt which remains unpaid (or an amount that the creditor agrees to accept in full satisfaction of the debt;

If I remember correctly I asked some time ago if a creditor (anyone including the Courts) COULD allow the debtor to offer a reduced amount and in lieu of a custodial sentence for non payment of a Court fine in exceptional circumstances! or in the cases of any other debts that have been tried at any Court.... THIS IS POSSIBLE under these regs...

 

It could be argued the fees are part of this debt and MAY come under this section (a) in Purple, is this not correct?

 

Is it possible for it to even be considered at all? as it is clearly stated in the regs above that it maybe permitted as the regs say it can be.

[tomtubby]

I still don't get it. Having read through schedule 12, it seems to be about levying and selling the debtors goods. What happens if no levy or sale takes place?

 

.

On the point of 'still not getting it',....I would respond to your comment to say that I am not surprised !!! Statutory regulations are not written in a way to make them simple for the general public. From questions that I personally receive the confusion starts with the reference to an Act of Parliament (Tribunals Court & Enforcement Act 2007) introduced 7 years ago and what is Schedule 12? To confuse even further we then have the Taking Control of Goods Regulations 2013 and the subsequent fees regulations. I hope to make this easier when the Simplified Guide is completed.

 

On the matter of Schedule 12 it is certainly not about 'levying' as that terminology no longer features in the regulations.

 

In fact Schedule 12 is of vital importance and I would like very much to respond. The problem is that once again, this very important thread is going 'off topic'. Your question needs to be raised under the new regulations 'General Discussion' thread. I can then address your query there.

[seanamarts]

Hi Doggone,

You are right, when you get conflicting advice & your at the receiving end off it, you can feel so lost & indeed mystified by it; as all you wanted was a straight answer to your questions.

 

The example TT gave out previously on here, is the most simplest way for you & I to understand how the new EA regs indeed work & the cost implications of them.

 

I can only say that I am sorry you got given a different interpretation elsewhere, but you are here now & judging by what you've posted above, you have now settled your EA issue in full. The pressure is off you now & you can save yourself a few paracetamol...

 

As for everyone singing from the same hymn sheet, again your right, it would be better for all concerned. But you will always find someone's interpretation of a regulation etc will be more about "how they see it" rather "than what it means", Which can & will lead to opposing views.

 

So here on CAG, TT & others are doing their best to get the correct advice out there. By doing so, even if it helps just one person then the time & effort is worth the while.

Nicely put

[tomtubby]

I realise that I have made an ERROR in my initial post. I will contact a moderator to so whether I can edit the post. However given the way in which the thread has gone 'off topic' it may be the case that it would be better to start the thread again. I will wait to hear back from the moderator.

[brassnecked]

To progress we need to consider Schedule 12 and how it applies or was changed under the new rules, so perhaps a thread to discuss Schedule 12 and its wider implications may be a good option