Bailiffs are individuals or companies that are authorized by the court to enforce certain kinds of debts, such as unpaid council tax or parking fines. When a person owes money to an individual or organization and does not pay it, the creditor may obtain a court order to have a bailiff enforce the debt, however there are rights that have to be upheld when it comes to a bailiff dealing with its debtor.
Below are exerts from real life cases that highlight your rights and powers when it comes to dealing with Bailiffs:
Case Law -Your Powers; Bailiffs Rights
A debtor can remove right of implied access by displaying a notice at the entrance. This was endorsed by Lord Justice Donaldson in the case of Lambert v Roberts [1981] 72 Cr App R 223 – and placing such a notice is akin to a closed door but it also prevents a bailiff entering the garden or driveway, Knox v Anderton [1983] Crim LR 115 or R. v Leroy Roberts [2003] EWCA Crim 2753
Remove Implied Access
- Debtors can also remove implied right of access to property by telling him to leave: Davis v Lisle [1936] 2 KB 434 similarly, McArdle v Wallace [1964] 108 Sol Jo 483
- A person having been told to leave is now under a duty to withdraw from the property with all due reasonable speed and failure to do so he is not thereafter acting in the execution of his duty and becomes a trespasser with any subsequent levy made being invalid and attracts a liability under a claim for damages, Morris v Beardmore [1980] 71 Cr App 256.
Forced Entry
- Bailiffs cannot force their way into a private dwelling, Grove v Eastern Gas [1952] 1 KB 77
- A debtor can lawfully resist a bailiff without a valid warrant from entering the home if entry is being made against his will, Vaughan v McKenzie [1969] 1 QB 557.
- A door left open is an implied license for a bailiff to enter, Faulkner v Willetts [1982] Crim LR 453.
- A person standing back to allow the bailiff to walk through, but the bailiff must not abuse this license by entering by improper means or by unusual routes, Ancaster v Milling [1823] 2 D&R 714 or Rogers v Spence [1846] M&W 571.
- Provided a bailiff enters a property peacefully and without breaking in, he can break open internal doors inside the property, Lee v Gansel [1774] 1 Cowp 1.
- A bailiff entering through an unlocked door can break the lock if the door is subsequently locked while still inside, Pugh v Griffith [1838] 7 A&E 827.
- If a bailiff jams his boot into a debtors door to stop him closing, any levy that is subsequently made isnot valid: Rai & Rai v Birmingham City Council [1993] or Vaughan v McKenzie [1969] 1 QB 557 or Broughton v Wilkerson [1880] 44 JP 781.
- If a bailiff refuses to leave the property after being requested to do so or starts trying to force entry then he is causing a disturbance, Howell v Jackson [1834] 6 C&P 723 – but it is unreasonable for a police officer to arrest the bailiff unless he makes a threat, Bibby v Constable of Essex [2000] Court of Appeal April 2000.
Door being left open
- Otherwise a door left open is an implied license for a bailiff to enter, Faulkner v Willetts [1982] Crim LR 453 likewise a person standing back to allow the bailiff to walk through but the bailiff must not abuse this license by entering by improper means or by unusual routes, Ancaster v Milling [1823] 2 D&R 714 or Rogers v Spence [1846] M&W 571
- Ringing a doorbell is not causing a disturbance, Grant v Moser [1843] 5 M&G 123 or R. v Bright 4 C&P 387 nor is refusing to leave a property causes a disturbance, Green v Bartram [1830] 4 C&P 308 or Jordan v Gibbon [1863] 8 LT 391
- Permission for a bailiff to enter may be refused provided the words used are not capable of being mistaken for swear words, Bailey v Wilson [1968] Crim LR 618.
- If the entry is peaceful but without permission then a request to leave should always be made first. Tullay v Reed [1823] 1 C&P 6 or an employee or other person can also request the bailiff to leave, Hall v Davis [1825] 2 C&P 33
Excessive Force and Trespass
- Excessive force must be avoided, Gregory v Hall [1799] 8 TR 299 or Oakes v Wood [1837] 2 M&W 791
- A debtor can use an equal amount of force to resist a bailiff from gaining entry, Weaver v Bush [1795] 8TR, Simpson v Morris [1813] 4 Taunt 821, Polkinhorne v Wright [1845] 8QB 197. Another occupier of the premises or an employee may also take these steps: Hall v Davis [1825] 2 C&P 33
- Also wrongful would be an attempt at forcible entry despite resistance, Ingle v Bell [1836] 1 M&W 516
- Bailiffs cannot apply force to a door to gain entry, and if he does so he is not in the execution of his duty, Broughton v Wilkerson [1880] 44 JP 781
- A Bailiff may not encourage a third party to allow the bailiff access to a property (ie workmen inside a house), access by this means renders the entry unlawful, Nash v Lucas [1867] 2 QB 590
- The debtor’s home and all buildings within the boundary of the premises are protected against forced entry, Munroe & Munroe v Woodspring District Council [1979] Weston-Super-Mare County Court
- Contrast: A bailiff may climb over a wall or a fence or walk across a garden or yard provided that no damage occurs, Long v Clarke & another [1894] 1 QB 119
- It is not contempt to assault a bailiff trying to climb over a locked gate after being refused entry, Lewis v Owen [1893] The Times November 6 p.36b (QBD)
- If a bailiff enters by force he is there unlawfully and you can treat him as a trespasser. Curlewis v Laurie [1848] or Vaughan v McKenzie [1969] 1 QB 557
- A debtor cannot be sued if a person enters a property uninvited and injures himself because he had no legal right to enter, Great Central Railway Co v Bates [1921] 3 KB 578
- Vaughan v McKenzie [1969] 1 QB 557 if the debtor strikes the bailiff over the head with a full milk bottle after making a forced entry, the debtor is not guilty of assault because the bailiff was there illegally, likewise R. v Tucker at Hove Trial Centre Crown Court, December 2012 if the debtor gives the bailiff a good slap.
- If a person strikes a trespasser who has refused to leave is not guilty of an offence: Davis v Lisle [1936] 2 KB 434
- License to enter must be refused BEFORE the process of levy starts, Kay v Hibbert [1977] Crim LR 226 or Matthews v Dwan [1949] NZLR 1037
- A bailiff rendered a trespasser is liable for penalties in tort and the entry may be in breach of Article 8 of the European Convention on Human Rights if entry is not made in accordance with the law, Jokinen v Finland [2009] 37233/0712.
- If the bailiff has already started to make a levy (Impose his contract duty), he can no longer be made to leave and he cannot be assaulted, Southam v Smout [1964] 1 QB 308.
Bailiffs and Windows
Enforcement agents must only use a door or usual means of entry to enter premises ,Regulation 20 of the Taking Control of Goods Regulations 2013, or paragraph 59 of the Taking Control of Goods: National Standards 2014.
Bailiff and Use of Keys
A bailiff cannot put his hand in a hole (e.g. a cat flap or letterbox) in order to pull back a bar or fastening to open the door or window because this amounts to burglary and trespass, Ryan v Shilcock [1851] 7 Exch 72
The use of a landlord’s key to gain entry is unlawful, Miller v Curry [1893] likewise if the key is found but is not in the lock, entry would be unlawful, Welch v Krakovsky [1919]
Improper use of keys to gain entry is illegal, Alford v Thrupp [1906] 67 EG 226
If a key is in the lock, the bailiff may gain entry using the key, Ryan v Shilcock [1851] 7 Exch 72.
Can the police get involved?
In general, the police are not involved in bailiff situations because they are considered to be civil matters rather than criminal matters. The police are responsible for enforcing criminal law and maintaining public order, while bailiffs are responsible for enforcing civil law and collecting debts.
In the UK, the process for using a bailiff to collect a debt usually involves the creditor obtaining a court judgment in their favor and then instructing the bailiff to take action to recover the debt. This may involve the bailiff visiting the debtor’s home or place of business to seize and sell assets in order to pay off the debt.
So why do the police involve themselves?
As previously mentioned, the police are responsible for dealing with criminal offenses, not civil offenses. In order for the police to become involved in a civil matter such as a debt dispute, there must be a criminal element present. This could be in the form of a breach of peace, which occurs when there is a disturbance of the public order. If the police are present during a breach of peace, they may choose to become involved in the situation and become a party to the contract.
However, it is possible for the police to arrest and detain individuals for a breach of peace even if no actual disturbance has occurred. This can happen when the police want to become involved in a situation and use the threat of a breach of peace as a means of intimidation to encourage the resolution of a debt.
It is important to note that the police do not have the authority to question, detain, or arrest a debtor in a civil matter unless there is a criminal offense present. Even if the debt owed is a large amount, the police do not have the power to demand anything from the debtor. In the absence of a breach of peace, the police are only able to observe the situation.
How to avoid police interference?
To prevent the police from becoming involved in your dealings, it is essential to maintain a calm and composed demeanor. Using a camera to document your interactions can also be helpful. Additionally, it is important to be patient and avoid any arguments or actions that could be perceived as controversial, as the police may use this as a reason to make a breach of peace claim against you. Continue disputing your claims with your Bailiff via critical questioning to establish a valid claim against you.
How to dispute a claim with your creditor
When disputing a claim against you, it is important to avoid raising your voice or arguing. Instead, focus on discussing the terms of the contract that you entered into. Some things you may want to say include:
- Do you have knowledge of the contract I have with [name of creditor]?
- I am currently in a dispute with [name of creditor] and my contract is with them, not you.
- Do you have a copy of the contract?
- Do you have a contract between yourself and I?
- I will not be entering into a contract with you today, thank you.
Remember, debt collectors are acting as third party intermediaries and may have a contract with the company or person you owe money to. This means that there is a new contract between the debt collector and the creditor, and it does not involve you. Your contract is with the creditor, not the debt collector.”
How the bailiff contracts with you
Bailiffs may try to get you to agree to terms for paying your debt by offering a payment plan or settlement agreement. If you agree to these terms, you will become liable to the bailiff’s terms and they will have a duty to collect payment from you. However, if you do not agree to any terms and the bailiff is unable to collect payment from you, the debt may become irrecoverable and may be written off as such.
Bailiffs may also try to intimidate or threaten you with claims of taking possession of your property. In order to do this, they would need to obtain a signed warrant and clearance from the high courts. If this occurs, your best course of action may be to discuss the debt with your creditor and attempt to come to an arrangement. By acting in good faith and attempting to resolve the debt, you may be able to avoid further legal action.
What to do if you genuinely owe money to a creditor
If you genuinely owe money to a creditor, it is important to communicate with them and inform them of any changes in your circumstances. While it may be tempting to try to avoid paying the debt, this is not a good idea as it can create bigger problems for you in the future. Instead, it is best to try to come to a fair and mutually beneficial arrangement with your creditor to resolve the debt. This may involve agreeing on a payment plan or other terms. Remember, it is always important to act in good faith and honor your financial obligations.
References
https://www.nationalbailiffadvice.uk/Bailiff-FAQ.html (Information and FAQS)
Additional Information
https://www.ukbailiffs.co.uk/information-for-police-officers (Bailiff limitations of powers)
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