Virtual Enforcement (During the Pandemic)

[Peterbard]

Virtual Enforcement (During the Pandemic)

Enforcement trade bodies and Just invite MoJ to review regulations - Credit Today - Consumer Action Group

Enforcement agents may enter homes via video, court decides | News | Law Gazette

 

On the eighth of January 2021 Master McCloud, sitting in the High court (QB) in Wales was required to make a declaration, regarding the legality of “Virtual Visits” by Enforcement officers operating under part 13(d) of schedule 12 TCE 2007.  That is, to enter into a Controlled Goods agreement without entry into the debtors premises.

 

It was decided that there was nothing within the immediate legislation which prevented it, but further investigations should be made regarding its effect on other sections of the act and regulations made under it.

 

IT IS DECLARED THAT:

1.     An enforcement agent may enter into a controlled goods agreement within the meaning of Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 with a debtor whether or not the enforcement agent has physically entered the premises on which the goods are located.

 

Judgement Here Just Digital Marketplace Ltd (enforcement - controlled goods agreements - taking control of goods) [2021] EWHC 15 (QB) (08 January 2021) (bailii.org)

 

Opinion

The first thing to emphasis on this, is that it does not affect any of the debtors previous rights and protections under the TCE, the facility is entirely, and can only,  be used with the debtors full permission and thus knowledge.

In particular, it does not taking control of goods by peeking through debtors windows. Also, and I suspect this is something some EA may argue, it does not give permission for them to force re-entry to claim goods IMO.

 

More to come

 

 

 

 

Edited January 16, 2021 by Peterbard

[Peterbard]

On examining the Judgement there are a few things which occur to me.

The Master seemed to have a problem reconciling the original act (see under)with the amendments and regulations made in 2013

 

14(1)An enforcement agent may enter relevant premises to search for and take control of goods.

(2)Where there are different relevant premises this paragraph authorises entry to each of them.

(3)This paragraph authorises repeated entry to the same premises, subject to any restriction in regulations.

(4)If the enforcement agent is acting under section 72(1) (CRAR), the only relevant premises are the demised . premises.

With that of the sections later amended in 2013 and Regulations in the TCoG regs of the same date. These give instruction on how entry can be made

. 

The language  of the original act reflects the  intention to use force. So when it says"14(1)An enforcement agent may enter relevant premises to search for and take control of goods." it is an unqualified instruction , in that regard. 

In my view the original language of part 14 should also have been amended when the regulations came into use, but were not.

As pointed out by the Master, with reference to Mr Benyons observations, the word , May is used in the part rather than must, which could be applicable here, however, I think that this was more in consideration of settlement prior to the intended visit. I dont think virtual anything as available when the act was drafted.

[brassnecked]

Thanks for the heads up, Peterbard  this will potentially open a big can of worms similar to the assumption all goods seized bailiffs used to try to rely on the comments in the Law Gazetter  are quite revealing, as in thety cosdider the judgment very iffy, the comment about the bailiff asking the debtor to move the webcam so they can get the image of the TV and Playstation illustrating the potential silliness, notwithstanding the way some EA's will rely on that Virtual CGA to allow them to force entry as if they had physically entered premises for a Convential physical compliant entry,  That is a dangerous judgment.

[unclebulgaria67]

I cannot see many people agreeing to any virtual webcam review of goods to be controlled.  

 

Many people in debt may not even have the facilities to be able to do this.   And the few that agree may try to have a laugh at the enforcement companies expense.  e.g. this painting is by well known local artist Peter Ist, but he signs his paintings as  P Ist and this other painting is by Brian Roke who signs his paintings as B Roke.  

 

Who would agree to this without understanding the consequences ?  

 

 

[brassnecked]

Yes agree UB it will be unworkable in practice, the issue being that some EA will regard the Virtual CGA as allowing them to physically force entry later if payment not forthcoming.  Or like some bailiffs used to try to imply that phone call a desperate debtor makes at Compliance stage is in effect a Virtual CGA when itn is nothing of the sort.

Rule 1 it is known some  bailiffs Lie.

Rule 2 Treat all bailiffs as liars until they prove they are not.

[Peterbard]

Thanks BN. I should add, that any Bailiff action is, to my mind unconscionable under the present circumstances, and the point should have been raised by the Master IMO.

As usual our problem will not be, what the amendment says.  But more, what some EA will imply it says, on the doorstep.

 

 

Edited January 16, 2021 by Peterbard

[Peterbard]

"Who would agree to this without understanding the consequences ?  "

 

Good question. UB

 

If, for instance the option of a remote examination of goods were permissible at compliance, the debtor may be tempted to agree, if it was mooted as an alternative option to attendance. 

There would have to be accommodation for the debtors signature of course, but there are laws in place to cover remote signatures on contracts, and frankly that would be the least if the EAs problems.

[brassnecked]

yes PB What the EA says on the doorstep is usually the big issue, but that Virtual CGA opens a door of opportunity for unscrupulous EA, a certain Ch 5 bunch springs to mind.

[brassnecked]

Just been looking back at some threads pre 2014 when it was like the Wild West for Enforcement and bailiffs climbed ladders and went in through upstairs windows, and fees were added as the bailiff thought fit, and this finding might bring back that most egregious of impositions, the "Universal" levy.  as was often written on a Levy All debtors goods & Chattels belong to us, after all after gaining entry after a Virtual CGA, what's to stop them listing goods as they remove them after their in their mind legal forced entry?

[Peterbard]

"All debtors goods & Chattels belong to us, after all after gaining entry after a Virtual CGA, what's to stop them listing goods as they remove them after their in their mind legal forced entry?"

 

Yes absolutely. 

It is bad enough at the moment, where some bailiffs misrepresent goods being bound as goods being under control, the former not enabling goods to be taken from premises for sale. To be under control a visit must be made of course, even if this amendment is passed.

Under the TCE, as you say since 2014, re attendance is permitted by the debtors signed CGA, that is all. Even a previous attendance does not permit it, unless goods are taken under control under part 13(d) of the TCE Schedule 12 and section 20 of the Taking Control of Goods regulations 2013 and the agreement struck. This is in stark contrast to the earlier rules, where re attendance was permitted after the Bailiff had just gained initial access. I am unsure, reading the judgement, that the Master was fully aware of this(in parts).

 

I consider this, as said earlier to be due to the way section 14 and 16 are written, both parts imply that forced entry can be used, and in neither case, due to the 2014 amendments neither  actually can.

The Master referred to the Memorandum and the Beaston report of 2000, but in this respect neither of those generally reliable tomes of knowledge are relevant.

Edited January 16, 2021 by Peterbard

[brassnecked]

Looks like the 2014 TCE was ignored, or disregarded then as unless the scenario hinted at by UB is followed as in point the camera at the TV now show the serial number on the back and it is listed, there is no way that CGA could be compliant.  Don't think it could be in reality unless EA sees the goods in situ and lists them correctly. Might be big stink if there was a forced entry removal after a Virtual CGA.

[Peterbard]

This from our friends at the HCEOA.

UK enforcement bodies and Just welcome High Court judgment on Controlled Goods Agreements and invite the Ministry of Justice to review the regulations

The UK’s two leading enforcement association trade bodies (the Civil Enforcement Association and the High Court Enforcement Officers Association) and Just, have welcomed the High Court judgment on non-entry Controlled Goods Agreements issued on Friday 8 January.

CIVEA, the HCEOA and Just have issued this joint statement which also invites the Ministry of Justice (MoJ) to review the judgment and, if appropriate, provide further guidance and/or amendments to the regulations.

The Taking Control of Goods Regulations, which came into force in 2014, set out the statutory code for any enforcement agent to take control of goods via a Controlled Goods Agreement (CGA) in order to avoid those goods being removed and sold whilst payments are made under the terms of the CGA. 

The regulations currently say that a visit needs to take place before goods can be taken into control, but do not specify whether this has to be a physical visit.

The judgment today gives clarity on this matter saying “an enforcement agent may enter into a controlled goods agreement within the meaning of Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 with a debtor whether or not the enforcement agent has physically entered the premises on which the goods are located.”

The concept of remote contact is not new and CIVEA and HCEOA members already use multi-channel engagement tools as part of the compliance stage without applying additional fees

Russell Hamblin-Boone, Chief Executive of CIVEA, Andrew Wilson, Chairman of the HCEOA, and Nick Georgiades, Managing Director of Just said:

“We’re pleased the courts have reached this judgment on non-entry Controlled Goods Agreements. This is good news for creditors, debtors, members of both associations and Just as it was important to bring much needed clarity in this area of enforcement. The judgment was the appropriate procedure to follow before any new and untested practices are introduced for the enforcement of court orders and warrants.”

Further to this the group commented:

“Following this judgment, we invite the MoJ to review the judgment, and, if appropriate, provide statutory guidance on the processes to be followed if re-entry is required and any fees which might be applied. Whilst we recognise that members of the associations and Just will be well placed to conduct non-entry CGA’s with appropriate caution, we would like to safeguard the process from others who may not be so diligent. The two associations and Just have offered to assist the MoJ in completing this work, should it be appropriate. 

The MoJ might also provide guidance on the compliance stage of enforcement process for high court writs, so that it is not undermined by this decision responding specifically to the cvisit is requiredlaim by some high court enforcement officers that they are unable to enter payment arrangements during the compliance stage, due to the wording of the command on the writ.”

The trade associations and Just believe that clarity in this area would be useful for debtors and enforcement agents as the different stages of enforcement are closely linked to specific fee scales which set out the fees that enforcement agents may charge.

 

 

Interesting points. The judgement did not say anything about entering into a CGA at compliance, and for good reason, it is well established in the regulations and the act that a visit is required, in fact it is the trigger for first stage fees on an HCEO enforcement, no it was the necessity of entry which is poorly defined. there was a very good reason for that, as I mentioned earlier.

 

There is nothing in the TCE or regulations thereunder which disallows entry into a payment agreement with or without the control of goods. Although creditors may insist on some form of assurance if the accept a repayment agreement.

The piece mentions the belief that the wording of the writ has some baring, as pointed out by the judge, due to the wording of part 62 TCE it doesn't have any baring at all in law, the HCEO must obey the TCE, the same as all other bailiffs. This has been confirmed in other Judgments.

[brassnecked]

They are after imposing the Enforcement Fee on strength of a phone call in effect.  I'm always suspicious where they try to extend the way a re-entry is grounded, so if that Virtual CGA can be contstrued as akin to a physical entry for the purposes of taking Enforcement to another stage, so virtual CGA counts as peaceful entry allowing a physical first visit to be a removal for sale visit.

[AndyOrch]

Topic open