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MoJ vows to tackle "bad practices" in shake-up of bailiff regulation

The Ministry of Justice has launched a consultation on the regulatory framework for bailiffs with a vow to “clamp down on bad practices”.

The MoJ said it was necessary for a bailiff to be assertive and firm if they are to be effective. However, it added that there was anecdotal evidence that some bailiffs “may veer towards aggression in pursuit of effectiveness”.

It was these elements that needed to be addressed, the Ministry said. Unacceptable behaviour included misrepresentation of legal authority, charging excessive fees (including charging for ‘phantom’ visits and for activities not carried out), and using threatening behaviour.

In the consultation paper, the MoJ described the law relating to enforcement by the seizure and sale of goods as “complex, unclear and confusing”.

Publication of the consultation comes after the MoJ last month published updated national standards setting out what constitutes acceptable behaviour for bailiffs.

The latest consultation is intended to build on these revised standards by transforming elements of the voluntary code into a legally-binding regime. It paves the way for implementation of Part 3 of the Tribunal, Courts and Enforcement Act 2007.

The MoJ has published – as part of the consultation – draft Taking Control of Goods Regulations, the purpose of which is to set out the detail of the prescribed process that an enforcement agent should follow.

The consultation proposes that any new procedure to take control of goods by enforcement agents should seek to:

  • “Clarify and simplify the law to address misrepresentation of powers by enforcement agents;
  • Unify the law to address the current complex range of primary and secondary legislations and common law, which may raise confusion;
  • Render the law consistent with Human Rights legislation;
  • Balance the sometimes competing rights and responsibilities of creditors and debtors;
  • Establish the use of less invasive ways to take control of goods; and
  • Verify the rights and responsibilities of debtors, creditors and enforcement agents when debts have to be enforced.”

The MoJ is proposing changes to the 2007 Act and further regulations to ensure debtors are fully aware of the consequences of their actions or inaction.

The consultation paper meanwhile described the current costs regime for enforcement agents as complex, with each enforcement power bringing with it a different costs structure. A number of different factors combine to make the current charging process “prone to abuse”, it said.

The MoJ said a proposed new costs structure should “align more closely with the cost of the activity carried out by the enforcement agent, alter incentives to encourage more appropriate enforcement behaviour and be both clearer and fairer to debtors and enforcement agents”.

The Ministry argued that clarifying the law and a clear and transparent costs structure would go some way to address bailiff behaviour, but added that there was still a need to ensure sufficient remedies were available to debtors to deal with the rogue element.

The consultation paper suggested that there was “a strong argument for a single structure to regulate the industry”, raising standards of professionalism and giving the public greater confidence.

The Ministry said the purpose of the overhaul was to balance three objectives:

  1. Providing more protection against aggressive bailiffs whilst spelling out the need for effective enforcement;
  2. A “fair, transparent and sustainable” costs regime that provides adequate remuneration; and
  3. Minimising excessive regulation on business whilst ensuring effective protection for the vulnerable.

Justice Minister Jonathan Djanogly said: “Too many people have experienced intrusive, expensive and stressful bailiff action and more often than not the public do not hold bailiffs in high regard, despite the fact most bailiffs carry out their work professionally.

'We want to restore balance to the system, improve clarity for both debtors and creditors, strengthen protection for vulnerable people and ensure that individuals, business and Government are able to collect the debts they are owed – but in a way that is fair and regulated by law."

The MoJ acknowledged that bailiffs played an important role in both the economy and the justice system, adding that “without them creditors would not be able to lend and courts would be less effective”.

The consultation documents can be viewed here. The deadline for responses is 14 May 2012.
A&M Bacon