Reviving bailiffs' certification

In brief

• certification has been much neglected but could provide an effective means of regulating the industry ;
• past case law indicates the potential scope of the process: judges have revoked bailiffs' certificates for charging unlawful fees and for other abuses of their powers.

The draft Tribunals, Courts & Enforcement Bill published on 25 July by the Department of Constitutional Affairs will introduce significant changes to bailiffs' law. Part 3, in particular, proposes major reforms: a single code of law and a single fee scale. The plan to create a single regulator, such as the Security Industry Authority, has been shelved in the wake of the Hampton Review, but instead there will be a major expansion of the present system of county court certification. At present, it is an obscure procedure that does not apply to all bailiffs (see below). The Bill (clause 45) envisages that, in future, all bailiffs will be required to a hold a certificate unless they are government staff or court officers. The remodelled certification process will become of prime importance as a means of regulating those who enter the enforcement industry and how they behave.

Complaining against county court certificates

What remedies are currently available to those aggrieved by bailiffs' actions? There are trade body complaints procedures (the Association of Enforcement Agencies and Enforcement Services Association), there are complaints to the relevant ombudsman and there are, of course, court claims for wrongful distraint or execution. In addition, there is the process of complaint against the county court certificate. It is a much neglected remedy, but in light of the plan to expand certification, it has become necessary for practitioners to revisit this process and reassess its potential.

Private bailiffs who levy distress for rent, distraint for council tax and business rates and execution for road traffic penalties (parking penalties, bus lane violations and congestion charges) all have to hold a certificate from a county court. The certificate is granted if the court is satisfied that the bailiff is a 'fit and proper person'. In reality, the certification process is not much of a test of the applicant's character or knowledge as the court is unable to check any of the statements made on the application and the judge seldom has the time or information to test the applicant properly. However, the Distress for Rent Rules 1988, which regulate the process, also provide a procedure whereby an aggrieved individual can complain against a certificated bailiff (Distress for Rent Rules 1988 (SI no 2050), as amended by SI no 2360).

The certification complaints procedure has the potential to be a very effective tool for setting standards in the industry and excluding undesirable individuals. The court has the power to revoke certificates and/or to award compensation. Certificated bailiffs must maintain a bond or indemnity to the value of £10,000 and this may be forfeit in whole or in part to cover damages and court costs if the court finds against a bailiff on a complaint. Clearly, even the threat of a complaint can be a salutary experience for a bailiff, as the ultimate sanction can be exclusion from the business. For the complainant, moreover, the procedure is highly accessible: a very simple complaints form is filed in the relevant court without any fee being payable, and the bailiff must respond to this within 14 days. If no response is received, or if the judge considers it to be satisfactory, a hearing will be arranged at which the parties can be heard fully and in person.

An under-used procedure

The problem with certification is that, despite its potential, it has fallen into desuetude. The most recent reported complaint dates from 1991 (Manchester City Council v Robinson, Legal Action vol 10) and was not an encouraging example of the complaints procedure's possible effectiveness. A certificated bailiff was accused of levying wrongfully for rent arrears after obtaining a suspended possession order for the same sum, of using incorrect documentation and of entering illegally using a landlord's pass key. Although the court acknowledged the wrongfulness of all these actions, it declined to cancel the certificate; rather the bailiff had to pay £100 costs and gave an assurance that his paperwork would be updated to be brought in line with the forms prescribed in the 1988 Rules.

The Robinson case does not suggest that certification complaints are a productive route to redress for a client. However, the procedure has to be given another chance, in part because certification has by no means always been toothless and because of the growing evidence that many large bailiffs' companies are flouting the law by allowing uncertificated bailiffs to undertake work for which a certificate is required.

Stemming abuses

The certification process was introduced by the Law of Distress Amendment Act 1888. The measure was a response to widespread public concern about the behaviour and qualifications of private bailiffs. County court judges from the outset used the new powers enthusiastically and proactively. They saw the new process as a means not only of disciplining wayward bailiffs, but of more generally regulating standards within the industry. Certificates need to be renewed periodically and some judges took the opportunity to quiz individual bailiffs on their knowledge of their powers and also to address them en masse on the standards expected of them.

For example, HHJ Parry at Manchester county court in 1910 warned that certificate holders had to act with discretion and discrimination. They had duties to all the parties involved '“ to the creditor, to the debtor, to the wider community '“ and to the court that awarded the certificate by ensuring that the poor were protected and that exempt goods were not seized in distress (Taylor v Ashworth [1910] 129 LT 578).

From the determinations made in individual complaints against certificated bailiffs, it may be further stated that certificated bailiffs must maintain the highest standards of behaviour when levying, avoiding rudeness, violence and drunkenness. Other unfit or improper behaviour which could lead to revocation of a certificate includes criminal acts such as assault, civil wrongs such as negligence and the detention of goods despite payment by the debtor and the misappropriation or mishandling of monies received (see for example Villeneuve v Clark [1890] 35 Estates Gazette 458; Re: Gurden [1894] 2 Property Market Review 410 & 872; Estates Gazette vol 47 p 171 & vol 48 p183).

Many certification complaints have concerned abuses of the scales of fees which bailiffs are entitled to charge. Helpful cases include:

• In Re Longstaffe ex parte Robinson [1896] 49 Estates Gazette 60, a certificate was revoked because the bailiff had charged extortionate fees and had also left no inventory of the goods seized (in breach of his statutory duty) and had sold the goods at an undervalue to an associate.
• In Duncombe v Hicks [1898] 42 Sol Jo 393, the bailiff lost his certificate for charging fees for work not actually undertaken by him.
• In Mutter v Speering [1903] 119 LT 134, revocation was ordered because fees not authorised by the fee scale had been charged.

All these activities continue to be a cause of concern and it is clear that certification could still provide a speedy and efficacious remedy.

Moreover the potential scope of the complaints process appears to be broad. Certainly uncertificated bailiffs cannot undertake certificated work; also a certificated bailiff is liable for any trespass by his uncertificated assistant. It is further arguable to no uncertificated bailiff should be involved in any way with work for which a certificate is required '“ see Hogarth v Jennings [1892] 1 QB 907; Hawes v Watson [1892] 94 LT 181; Thomas v Millington [1892] 2 Property Market Review 472. In addition, the right to initiate a complaint lies not only with the debtor, but with the creditor, and, indeed, affected third parties, such as hire purchase lenders whose goods are wrongfully levied: see Perring & Co v Emerson [1903] 1 KB 1.

Leveraging the Bill's potential

Clause 46 of the draft Bill states that new regulations will be made to replace the current Distress for Rent Rules. These will make provision (inter alia) for a complaints procedure, for the suspension or cancellation of certificates and for courts 'to make information available in respect of certificates'. Hopefully, this will mean that the details of refusals or revocations will become publicly available. At present they are not and this is surely partly why the certification complaints procedure has been neglected. Nonetheless, much of the obscurity and disuse from which certification has suffered can be remedied now by practitioners pursuing suitable cases and publicising the outcomes in the professional press.

The procedure for initiating a complaint is very simple. A standard form exists ('form 4'), although it would suffice to send a letter setting out the details of the parties, the debt and creditor involved, and describing the substance of the complaint. If you do not know the court which issued the certificate and to which the complaint should be addressed, you can ring Court Service Headquarters on 0207 210 1883 to check this; the information ought in any event to be supplied by the bailiffs' company.

There has been a measure of doubt on the part of some county court judges as to the scope of the certification complaints system. This has been caused by government 'tacking on' a requirement for bailiffs levying local taxes and road traffic penalties to hold certificates without altering the basis upon which certificates are granted '“ that is, within the framework of the law of distress for rent. Some courts have been reluctant to entertain complaints that did not relate to the recovery of rent arrears. Department of Constitutional Affairs has, however, expressed the view that complaints may be made in three different situations:

• when there has been unfit and improper behaviour by a bailiff levying distress for rent;
• in respect of the activity of a certificated bailiff levying any other debt. This is on the basis that, in most cases, the procedures that have to be followed are broadly the same in all forms of seizure of goods, so that a serious error collecting (say) a fine will indicate a general lack of fitness and propriety; and
• in respect of the certificates of those individuals who are managers and directors of bailiffs' firms, on the basis that, if they are unable properly to control and train their staff, they are not fit to hold a certificate.

To conclude, the scope of certification complaints is broad. The process was used in the late 19th and early 20th centuries to deal with many of the sorts of abuses that still are encountered today, as well as generally to raise standards within the enforcement industry. There is no reason why it cannot perform the same function again in the 21st century.