Bailiff Case Law

[Welsh-dragonclc]

Mortgage Fraud 101: Case Law on Forced Entry by Bailiff and Police
Here are some essential pieces of case law, which should be used to deal with a bailiff and police, who claim they have the right to force entry into your property, without a valid warrant, order or debt.

A bailiff may not encourage a third party to allow the bailiff access to a property (i.e. Workmen inside a house or a police officer), access by this means renders everything that follows invalid.

Nash v Lucas [1867] 2 QB 590.

A debtor can lawfully use reasonable force in removing a bailiff without a levy that has refused to leave, the bailiff resisting is the person guilty of a breach of the peace.

Green v Bartram [1830] 4 C&P 308.

If police are present, the bailiff is the person that police should arrest.

Foulkes v Chief Constable of Merseyside Police [1998] 3 All ER 705 and section 26(5) of the Criminal Justice and Courts Act 2015.

If a bailiff jams his boot into a debtor’s door to stop him closing, any levy that is subsequently made is not valid.

Rai & Rai v Birmingham City Council [1993] or Vaughan v McKenzie [1969] 1 QB 557.

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. 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.

R. v Tucker at Hove Trial Centre Crown Court, December 2012.

If a person strikes a trespasser who has refused to leave he is not guilty of an offence.

Davis v Lisle [1936] 2 KB 434.

Source: https://www.thebernician.net/mortgage-f ... nd-police/

CASE LAW PERTAINING TO BAILIFFS IN ENGLAND AND WALES – CIRCA. 2017 [A snippit thereof]

Bailiff case law

Breaking entry using a locksmith (Magistrates’ courts fines only)

If you owe an unpaid fine “Sum adjudged” the bailiff can enter using a locksmith. Paragraph 18(b) of Schedule 12 of the Tribunals Courts and Enforcement Act 2007. Bailiffs fees are not part of the “sum adjudged”. The sum adjudged is the sum you were fined by the court.

Paragraph 15(1) of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 requires the bailiff to apply to a court for a warrant to enter and search for goods.

The procedure for a bailiff to apply for a warrant of entry is given in Rule 10(c) of the Criminal Procedure (Amendment) Rules 2015.

Civil liability for wrongful or unlawful bailiff action resides with the creditor, Paragraph 7 of the Taking Control of Goods: National Standards 2014

Forced entry
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

A power to enter premises by breaking it open, exists for the execution of High Court and County Court debts at business or commercial premises, but not premises paretially occupied domestically.

or at any premises where an enforcement agent is enforcing criminal penalties if the debtor is a wilful refusing to co-operate. Paragraph 60 of the Taking Control of Goods: National Standards 2014

A power to re-enter premises by force applies to residential and business premises where a controlled goods agreement is in place and the goods remain on the premises but the debtor has failed to comply with the repayment terms of the controlled goods agreement and the debtor has been given notice of the enforcement agent’s intention to re-enter. Paragraph 61 of the Taking Control of Goods: National Standards 2014

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

A debtor can remove right of implied access by displaying a notice at the entrance, Lambert v Roberts [1981] 72 Cr App R 223.

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

A person (from 2014 onwards – without a warrant of control) 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.

If the bailiff has already started to make a levy, he can no longer be made to leave and he cannot be assaulted, Southam v Smout [1964] 1 QB 308.

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

Excessive force must be avoided, Gregory v Hall [1799] 8 TR 299 or Oakes v Wood [1837] 2 M&W 791 or Paragraph 60 or 61 of the Taking Control of Goods: National Standards 2014

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.

If a bailiff enters a property and makes a noise and disturbs the peace it is lawful for the occupier to eject him and if he refuses to leave the police may be called, Green v Bartram [1830] 4C&P 308 or Shaw v Chairtirie [1850] 3 C&K 21

A bailiff may not encourage a third party to allow the bailiff access to a property (i.e. Workmen inside a house or a police officer), access by this means renders everything that follows invalid, Nash v Lucas [1867] 2 QB 590

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

A debtor can lawfully use reasonable force in removing a bailiff without a levy that has refused to leave, the bailiff resisting is the person guilty of a breach of the peace, Green v Bartram [1830] 4 C&P 308.

If police are present, the bailiff is the person that police should arrest, Foulkes v Chief Constable of Merseyside Police [1998] 3 All ER 705 and section 26(5) of the Criminal Justice and Courts Act 2015.

If a bailiff jams his boot into a debtor’s door to stop him closing, any levy that is subsequently made is not valid: Rai & Rai v Birmingham City Council [1993] or Vaughan v McKenzie [1969] 1 QB 557

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.

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 after refusing a request to remove their foot from the door aperture.

If a person strikes a trespasser who has refused to leave is not guilty of an offence: Davis v Lisle [1936] 2 KB 434

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 & Jokinen v Finland [2009] 37233/07 and paragraph 28 of the Taking Control of Goods: National Standards 2014

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

Bailiffs 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

Bailiffs and improper conduct
Unfit behaviour on the part of the bailiff or an assistant is illegal, abuse of position or improper conduct can all lead to revocation of a certificate:

Deceiving a debtor, Mutton v Sheppard [1905] 66 EG 806

Presenting himself in public in police livery without the words “POLICE”, R. v Michael Allen Northampton Magistrates Court, October 30 2014

Illegal Distress, London Central Meat Co v Rae [1905] 13 PMR

Assaulted a debtor, Woodward v Day [1894] 2 PMR 753

Drunk bailiff, Gurden Re [1894] 1 PMR 872 or Villenueva v Clark [1890] 33 EG 458

Bailiffs and Warrants of Control

Enforcement agents must on request show the debtor his identity and his authority to enter the premises. Paragraph 26(1) of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007.

The bailiff must carry the warrant with him when he attends the debtor’s premises, Section 126 of the County Courts Act 1984. (applies to PCN enforcement)

If a bailiff is named on the warrant but is being executed by another then it is illegal, Symonds v Kurtz [1889] 61 LT 559 or R v Whalley [1835] 7 C&P 245 or R v Patience [1837] 7 C&P 775 but not if there is a mere typo in the bailiffs name, Section 78 of the Magistrates Courts Act 1980 or Section 125 of the County Courts Act 1984

Bailiffs can only enforce payment of a debt at the address shown on the warrant or writ which is either where the debtor usually lives or carries on a trade of business. Paragraph 14 of Schedule 12 of the Tribunals Courts and Enforcement Act 2007.

A snippit from;

Source: http://tlio.org.uk/campaigns/case-law-p ... irca-2017/

[John The Baptist]

I would strongly urge you to ignore 99%, if not all of the above. None of it is relevant post 2014, when new legislation was introduced. Much of it was misinterpreted in the first place anyway.

[zeke]

Much of it was misinterpreted in the first place anyway.

I wouldn't dismiss John Kruse's work so easily.

The legal profession consider him a highly respected authority on bailiff case law.

Just because his work is posted on the internet doesn't mean its misinterpreted.

Unless you can enlighten him with your expert advice, I'm sure he would be delighted to hear it.

[John The Baptist]

John Kruse himself stated at around the time of Sch 12 coming into force that nearly all case law was no longer relevant. Notwithstanding that bailiffs are now obsolete, new legislation addresses many of the issues referenced above.

Lambert v Roberts is not even connected to bailiffs. Implied right of access was only really relevant to certain types of bailiffs in any case (council tax/PCNs). New legislation now prescribes that EAs may enter relevant premises, with or without implied right of access.

Most relevant is that a bailiff no longer needs to have begun to levy in order to remain on the premises. Once a bailiff has gained peaceful entry, he is not compelled to leave, even if a debtor requests that he does so. A debtor attempting to use reasonable force in this scenario would end up being arrested and facing quite serious criminal charges. This nullifies cases such as Morris v Beardmore & Vaugn v McKenzie.

[zeke]

I tbunk you will find thet Johns work started many years before Schedule 12.

I uderstand John, as well as LACEF, had a major hand in shaping Schedule 12.

That is quite evident when comparing the similarities between case law with schedule 12.

He did comment that his work would need to be rexwritten when the TCEA comes into force.