WHEN ENFORCEMENT PROCEEDINGS GO WRONG: IF YOU CAN’T OPERATE BY THE RULES THEY MAY TAKE YOUR LICENCE AWAY…

The enforcement of judgments is an aspect of civil procedure that rarely makes the law reports.  In Rooftops South West Ltd & Ors v Ash Interiors (UK) Ltd & Ors [2018] EWHC 2799 (QB) Master Davison was highly critical of the conduct of High Court enforcement agents.   If this judgment discloses common attitudes, or practices, this is clearly an area of practice that needs a careful and critical review.

A Writ of Control is not to be regarded as a kind of blank cheque or a licence to act with impunity”

THE CLAIM

Ash Interiors had a judgment debt against an individual for £1,557.93. The judgment was transferred to the High Court for enforcement.  The enforcement agents seized a van and then a powerboat.    The Master held that these seizures had been unlawful.  The people who had goods seized were the claimants in this action against the judgment debtor and the enforcement agents.

EVIDENCE (OR RATHER THE ABSENCE OF EVIDENCE FROM THE DEFENDANTS)

The claimants brought an action claiming damages. They gave evidence at the trial. However the defendant called no evidence at all from the employees who had been directly involved in the enforcement process.

Remarkably, there was no evidence from the enforcement agents who carried out the seizures. These were Mr Gareth Short and Mr Mitchell Star. Nor was there any evidence from the manager directly in charge of these agents, who I understand to have been Mr Derek Wesson”

ERRORS OF PROCEDURE BY THE DEFENDANTS

The claimants’ case is that they never received a Notice of Enforcement.  Because of the paucity of evidence from the Defendants the Master found that this had never, in fact, been sent.

  1. The paucity of evidence was very surprising given that the giving of notice is, by paragraph 7 of Schedule 12 to the Tribunals, Courts and Enforcement Act 2007, a prerequisite to taking control of goods and that paragraph stipulates that the enforcement agent must keep a record of the date and time when the notice is given.
  2. Both Mr and Mrs Slocombe denied ever seeing this Notice of Enforcement and there are two reasons why I find that it was never sent. The first I have already alluded to. The means to demonstrate the sending of the Notice of Enforcement lay within DCBL’s power and it was indeed absolutely incumbent upon them to prove this matter. But they failed to do so. I would add that their numerous further failings in the observance of proper and lawful procedures, which I will presently come to, do not inspire me with confidence that the Notice of Enforcement was sent. Second, the Slocombes scrupulously produced every document that they received from DCBL and their solicitor, Mr Jones, visited their business premises in order to satisfy himself that he had been given everything relevant. If I can say this without impertinence or disrespect, the Slocombes struck me as unsophisticated and artless people who would neither have suppressed the document nor seen any advantage to themselves in doing so. Given Mr Slocombe’s somewhat unwise and unreasonable stance in relation to the judgment debt, it is perfectly possible that, if the Notice had arrived, he would have ignored it. But that does not demonstrate that it did arrive. On the balance of probabilities, I find that it did not arrive and that is because it was never sent.

A WRIT OF CONTROL IS NOT A LICENCE TO BREAK THE LAW

The Master made a number of factual findings in relation to the defendants’ breach of proper procedure.  The most surprising aspect of the defence was an argument that everything was “lawful” because there was a High Court writ.

“DCBL’s overarching defence
    1. It remains to deal with what I have called DCBL’s overarching defence. This found its clearest expression in paragraph 29 of the witness statement of Ms Miah dated 10 October 2017. In that paragraph she said as follows:
DCBL are commanded by the High Court to enforce the High Court writ. As such, all conduct by DCBL was carried out lawfully.
    1. Paragraph 32 was along somewhat similar lines:
“If the defendant had dealt with the execution of the writ promptly and payment was forthcoming, there would have been no need for the boat to be seized or removed.”
(This indeed comprised the opening part of Mr Shale’s cross-examination of Mr Slocombe.)
    1. These paragraphs, particularly the first, demonstrated a lamentable misunderstanding of the true legal position. Paragraph 19 of the National Standards for Enforcement Agents, published by the Ministry of Justice on 6 April 2014, states:
“Enforcement agents must act within the law at all times, including all legislation …”
  1. A Writ of Control is not to be regarded as a kind of blank cheque or a licence to act with impunity. Wisely, neither Mr Shale nor Mr Royle relied upon or referred to this part of their clients’ case in their submissions. However, it is astonishing and concerning that their clients, a body and an individual acting under statutory licence, should have done so. Taken together with the multiple breaches of procedure and the absence of proper records that I have referred to, the apparent lack of recognition or insight on the part of the persons concerned, the lackadaisical and dismissive attitude of DCBL to these proceedings and the fact that what oversight the third defendant exercised with respect to DCBL was and is apparently rendered from Florida, there are grounds to consider terminating the third defendant’s authorisation to act as an enforcement officer under Regulation 12 of The High Court Enforcement Officers Regulations 2004. I will refer the case to the Senior Master for consideration of that course. She may also wish to consider the position of Messrs Short, Star and Wesson.

AND, OF COURSE, THERE WAS A FILM CREW VIDEOING THE WHOLE PROCESS

Part of the process appears to have been filmed by a documentary film maker.  There is a whole genre of documentaries relating to enforcement agencies.   They may not be appropriate or legitimate.

The claim for invasion of privacy
    1. It also remains to deal with the claim for invasion of privacy. By paragraphs 38 to 40 of the Points of Claim and paragraphs 7 and 8 of the Prayer, Mr Slocombe has claimed damages for invasion of his privacy and his Article 8 rights based upon the filming by Brinkworth of the seizure of the van and the filming of the search of its contents. There does indeed seem to be considerable tension between the relationship between DCBL and Brinkworth on the one hand and paragraphs 27, 50 and 52 of the National Standards on the other. Those paragraphs are in these terms:
“27. Enforcement agents must not act in a way likely to be publicly embarrassing to the debtor, either deliberately or negligently (that is to say through lack of care).
50. All information obtained during the administration and enforcement of warrants must be treated as confidential between the enforcement agent, debtor, the creditor and any third parties nominated by the debtor.
52. Enforcement agents should, so far as it is practical, avoid disclosing the purpose of their visit to anyone other than the debtor or a third party nominated by the debtor, for example an advice agency representative…”
  1. On the face of it, those standards were breached in this case.
  2. Further, this case would seem to have at least some features in common with the case of Ali v Channel 5 Broadcast Limited [2018] EWHC 298where Arnold J awarded damages for invasion of privacy in respect of the defendant’s filming of an eviction carried out by DCBL. However, Brinkworth is not a party to these proceedings and it is not self-evident that “permitting” them to film, if that is what DCBL did, would render DCBL liable for any invasion of privacy which occurred. A good deal might turn on the terms of the contract between DCBL and Brinkworth, which has not been disclosed. A claim of this type was certainly not envisaged by me when I made my order of 13 October 2017 and the simple directions I then gave were not tailored to such a claim. Further, given that the footage has never been published and given also that Mr Slocombe struck me as an extremely robust character not easily discomfited or distressed, damages for breach of privacy, if awarded, would be counted in the hundreds not the thousands of pounds.
  3. In all these circumstances, I have decided to stay this claim pending conclusion of the principal claims.