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Andrews v Bolton Borough Council [2011] HHJ Holman, Bolton county court, June 2011
This case was concerned with the enforcement of warrants of execution issued by the Traffic Enforcement Centre (the TEC) at Northampton county court for road traffic penalties due to local authorities under the Traffic Management Act 2004 and processed under the Civil Procedure Rules then recovered by bailiffs exercising powers set out in the Enforcement of Road Traffic Debts Order 1993. Mr Andrews' car was seized by a bailiff on behalf of Bolton Borough Council in November 2010. The sum due was £438.72 and because it remained unpaid the car was removed in March 2011. Mr Andrews then applied for an injunction for the return of the car on the grounds that the levy was illegal. This application was dismissed by a district judge in April 2011 and that decision was appealed unsuccessfully by Mr Andrews in front of circuit judge.
Judgment The claimant's contentions are: 1. that no valid warrant was issued (indeed he described the document produced as a forgery); 2. that the authorisation for the warrant was issued under County Court Rules Order 48 rule 5, which has been revoked, so the warrant was not lawful; 3. that he was not provided with a copy of the warrant; and, 4. that the fees charged were improperly calculated... I can deal very shortly with two of the claimant's contentions. As to the challenge to the bailiff's fees, rule 11 of the Distress for Rent Rules 1988 provides for detailed assessment by a district judge in the event of any dispute about fees, charges or expenses. If the district judge concludes that there has been overcharging of such magnitude as to call into question the bailiff's conduct or his fitness to hold a certificate, he notifies the court which granted the certificate and that court shall treat the notification as a complaint under rule 8. The claimant has not applied for such assessment. As to the reference to CCR 0.48 r.5 on the authorisation form from the TEC, it is undoubtedly the case that this order has been revoked. It has been replaced by CPR Part 75. The procedure regarding warrants of execution is essentially exactly the same. This objection attacks a matter of pure form, not substance, and is devoid of merit. Even if it did have any merit, CPR 3.10 would come into play and there would be no rational basis on which it would he open to me to conclude that I should invalidate the steps taken. Both of those grounds of appeal have no prospects of success and I refuse permission to appeal on those grounds. The two other grounds merit proper scrutiny. I accordingly have decided to give permission to appeal. That in itself is sufficient to dispose of the defendant's attempt to have the appeal struck out, although I am bound to say that it might in any event have faced considerable difficult in establishing the "compelling" reasons which are required by CPR 52.9(2).
Was there a valid warrant? The TEC sends out authorities to issue warrants in batches by fax. The defendant produced the fax authority dated February 12t1 2010. It contained 199 authorisations, the TEC having rejected one request. It hears the seal of Northampton county court. This, they informed me, is followed by an electronic transmission of the data. Given the volumes with which the TEC is concerned, the use of computers is of obvious advantage and it is specifically permitted by CPR 75.4. The electronic data was sent to the defendant, and it is used to prepare the warrant of execution (in effect filling in the blanks in the warrant). The claimant pointed out that the warrant produced in court to me (dated February 16th 2010) appeared to have been generated not by the defendant but by Marston Group, which is a company which provides the services of certificated bailiffs ... the position appears to he (and I indicated in court that I would act on this basis) that the electronic data is forwarded immediately (again electronically) by the defendant to Marston, It then produces the warrant. The claimant contends that this renders the warrant invalid, because para.5(4) of the Enforcement of Road Traffic Debts Order 1993 provides that only the authority shall he empowered to issue the warrant and further that CPR 75.7 stipulates that the authority must prepare the warrant. He argues that these are strict requirements. I note also that the code of practice issued by TEC, to which I shall refer later, refers to the local authority producing the warrant and forwarding it to the certificated bailiff. There is no doubt that it was the defendant which requested authority to issue the warrant and which received that authority. If the defendant on receipt of the electronic date bad then generated the warrant itself on its computer, there could he no possible argument. Given that this data was simply passed on to the bailiff, SO far as the CPR provision is concerned, any difficulty would be overcome simply by applying CPR 3.10, because this was an error of procedure, which would not invalidate the step unless the court so ordered. There is no rational basis to invalidate it, there being no prejudice to the claimant. CPR 3.10 cannot, however, operate in relation to the 1993 Order. In that regard a purposive approach is required. The warrant correctly states that it has been authorised by the TEC. It does no violence to the Order or its underlying principles to regard Marston Group as the agent of the defendant. It is processing on behalf of the defendant precisely the same data as has been supplied to the defendant by TEC. Accordingly, I conclude that the warrant was valid. Should the bailiff have given a copy of the warrant to the claimant? The claimant referred me to a variety of sources for the proposition that he should have, and contended that the failure to do so rendered the seizure invalid. The sources are: i) The warrant of execution itself bears a statement in bold type "If your possessions are seized, you will he left a notice of seizure of goods and an Inventory (list of items seized) together with a copy of this warrant." i) The TEC issued codes of practice in 2007. Para.9.22 states "the certificated bailiff must have the warrant in his personal possession when he visits a person or premises with a view to enforcing it and he must produce it on demand to anyone who has reasonable grounds to see it." iii) The Department of Transport issued Operational Guidance to Local Authorities Parking Policy and Enforcement in March 2008. Para. 10.69 states that the warrant must be carried with the certificated bailiff and must he produced on demand to anyone who has reasonable grounds to see it. iv) The observation of Jack J in JBW Group Ltd in Westminster City Council: "it is to be borne in mind that it is only the holder of a warrant who can execute it. That is because, inter alia, the bailiff must be able to produce it to the debtor. The codes of practice issued by the TEC have no statutory authority. That does not mean that they can be ignored. They provide very helpful and comprehensive guidance to users of the system. The same applies to the Department of Transport Operational Guidance. It is of note that s.87 of the Traffic Management Act 2004 enables the "appropriate national authority" to publish guidance to local authorities. The appropriate national authority is defined at section 92 as the Secretary of State, so far as England is concerned. Whether the Secretary of State has actually exercised this power is unclear, but there is no evidence to indicate that he has. The Operational Guidance does not state that it is issued by the Secretary of State pursuant to s.87 and I infer therefore that it is not. In both instances, guidance means precisely that. It does not have force of law. The observation of Jack J in JBW is obiter. The case actually concerned a claim brought by a company of bailiffs against a local authority for fees alleged to be due to it. I can find no statutory or legal authority which actually requires the bailiff to produce the warrant. Nevertheless, as a matter of common sense and in the interest of justice and fairness, a debtor must be entitled to ask to see the warrant, just as he or she is entitled to ask a certificated bailiff to produce his certificate. The statement on the warrant that a copy of the warrant will he left with the notice of seizure is an obvious demonstration of good practice. It was not followed in this case. I can, however, see no valid justification for holding that this invalidates a warrant lawfully issued upon the authority of the TEC. Were it Parliament's intention that such a consequence should follow, I would have expected this to be clearly spelled out either in primary or, more probably, subordinate legislation. Although not directly on the point, the defendant referred to a statute and a case which they suggested by analogy undermined the proposition that a bailiff must have the warrant with him. The statutory provision is section 126 of the County Courts Act 1984. This concerns actions against counts' court bailiffs, where a demand for inspection and provision of a copy and a failure to comply are pre-requisites to the action. I do not find this of any assistance. The case is an old one: Percival v Stamp.4' In that case, the bailiff unlawfully forced entry into a house to execute a warrant. It was held that this did not invalidate the seizure of goods under a lawful warrant; it merely gave the debtor a potential claim in damages for trespass. This is of assistance, and provides some support for my conclusion. There is a difference in this case that it is difficult to see that the failure to provide the warrant to the claimant could create any cause of action. It might give rise to a complaint about the bailiff, but that is not the issue before the court. Also, complaints about bailiffs fall to he dealt with under the procedure contained in the Distress for Rent Rules. Accordingly, the district judge was right to dismiss the injunction application and the appeal must be dismissed."
Note, 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
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