Make a Third-Party Claim to Controlled Goods CPR 85.4

To enforce a debt against individual 'A', the bailiff is not legally permitted to take the goods of individual 'B'.

Procedure

If your possessions have been removed, or your business premises secured for a debt owed by another, make a third-party claim to controlled goods:

Collect evidence demonstrating ownership of the goods or, in the case of a secured commercial premises, obtain a copy of the lease.

Provide copies of this evidence to the bailiff company and request the release of your goods or vehicle.

Allow a total of 10 clear days, as required by law.

File an application to the court to make the Third Party Claim.

The court issues an order for the release of your goods or commercial premises.

Attend a further hearing to determine your costs and your claim for damages.

Taking control of goods can mean:

Clamping a vehicle on your premises (excluding someone else's property) in England and Wales

Entering and securing a commercial premises containing the debtor's goods

Clamping a vehicle on a highway in England or Wales

Removing goods or towing a vehicle from a public road or your premises (excluding someone else's property) in England and Wales

Making Controlled Goods Agreement with the debtor

The Law:

Paragraph 13(1) of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 states:

(1)To take control of goods an enforcement agent must do one of the following—

(a)secure the goods on the premises on which he finds them;

(b)if he finds them on a highway, secure them on a highway, where he finds them or within a reasonable distance;

(c)remove them and secure them elsewhere;

(d)enter into a controlled goods agreement with the debtor.

Bailiffs may only take control of goods that belong to the debtor

The Law:

Paragraph 10 of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 states:

An enforcement agent may take control of goods only if they are goods of the debtor.

If bailiffs hold a "reasonable belief" that goods belong to the debtor without any substantiation, they may be ordered to cover costs on an indemnity basis.

- Alenezy v Shergroup Ltd [2022] EWHC 777 (QB) (01 April 2022)

The goods or vehicle cannot be legally sold once the bailiff is notified that they do not belong to the debtor.

The Law:

Paragraph 51 of Schedule 12 of the 2007 Act states:

(1)A purchaser of controlled goods acquires good title, with two exceptions.

(2)The exceptions apply only if the goods are not the debtor's at the time of sale.

(3)The first exception is where the purchaser, the creditor, the enforcement agent or a related party has notice that the goods are not the debtor's.

(4)The second exception is where a lawful claimant has already made an application to the court claiming an interest in the goods.

(5)A lawful claimant in relation to goods is a person who has an interest in them at the time of sale, other than an interest that was assigned or transferred to him while the property in the goods was bound for the purposes of the enforcement power.

(6)A related party is any person who acts in exercise of an enforcement power, other than the creditor or enforcement agent.

(7)"The court" has the same meaning as in paragraph 60.

If your goods or vehicle have been removed for another person's debt, make a Third Party claim.

Filing a claim stops the sale.

You must initiate the claim within 7 days from the date the goods were removed.

If the goods have already been sold, and your third-party claim is successful, the court may reverse the sale.

In bailiff terminology, this is referred to as a CPR 85 claim - Civil Procedure Rule 85, or simply a Part 85 claim.

Nearly all third party claims involve recently bought vehicles

Bailiffs patrol the streets at night with an ANPR camera to find parked vehicles with outstanding parking tickets, then employ "drive-by" clamping.

The procedure involves two steps:

Request the bailiff company and the creditor to return the goods to you.

If your request is denied, file an application with the court.

The Law:

Civil Procedure Rule 85.4 states:

(1) Any person making a claim under paragraph 60(1) of Schedule 12 must, as soon as practicable but in any event within 7 days of the goods being removed under the exercise of an enforcement power, give notice in writing of their claim to the enforcement agent who has taken control of the goods ('the notice of claim to controlled goods') and must include in such notice—

(a) their full name and address, and confirmation that such address is their address for service;

(b) a list of all those goods in respect of which they make such a claim; and

(2) On receipt of a notice of claim to controlled goods which complies with paragraph (1) the enforcement agent must within 3 days give notice of such claim to—

(a) the creditor; and

(b) any other person making a claim to the controlled goods under paragraph (1) ('any other claimant to the controlled goods');

(3) The creditor, and any other claimant to the controlled goods, must, within 7 days after receiving the notice of claim to controlled goods, give notice in writing to the enforcement agent informing them whether the claim to controlled goods is admitted or disputed in whole or in part.

(4) The enforcement agent must notify the claimant to the controlled goods in writing within 3 days of receiving the notice in paragraph (3) whether the claim to controlled goods is admitted or disputed in whole or in part.

(5) A creditor who gives notice in accordance with paragraph (3) admitting a claim to controlled goods is not liable to the enforcement agent for any fees and expenses incurred by the enforcement agent after receipt of that notice by the enforcement agent.

(6) If an enforcement agent receives a notice from a creditor under paragraph (3) admitting a claim to controlled goods the following applies—

(a) the enforcement power ceases to be exercisable in respect of such controlled goods; and

(b) as soon as reasonably practicable the enforcement agent must make the goods available for collection by the claimant to controlled goods if they have been removed from where they were found.

(7) Where the creditor, or any other claimant to controlled goods to whom a notice of claim to controlled goods was given, fails, within the period mentioned in paragraph (3), to give the required notice, the enforcement agent may seek—

(a) the directions of the court by way of an application; and

(b) an order preventing the bringing of any claim against them for, or in respect of, their having taken control of any of the goods or having failed so to do.

Collect as many of the following items related to the goods (Exhibits) as possible:

Vehicle registration document (V5 logbook) in your name indicating the acquisition date of the goods.

Purchase advertisement of the goods.

Insurance policy confirming coverage of the goods, with the commencement date.

Proof of vehicle tax payment.

Sales invoice.

Bank statements illustrating the transaction with the seller.r

Dated copy of the HPI Check conducted prior to the purchase.

For secured commercial premises, a lease agreement copy.

Email these documents to the creditor (council) an copy the bailiff company with the subject line: "Notice of Claim for Controlled Goods."

In your email, include the following information:

Template: "The notice of claim to controlled goods".

Attach the exhibits supporting your grounds to the email, such as the bill of sale, bank statements showing the flow of money, insurance documents, etc.

Take a screenshot of the email displaying the time it was sent. This will be required when filing your third-party claim in court.

The bailiff company has 3 days to forward your notice to the creditor, who then has 7 days to respond to the bailiff company regarding the admission of your claim (acknowledging that your goods are exempt). Subsequently, the bailiff company has 3 days to inform you of the creditor's decision. This entire process takes 13 days.

If the creditor acknowledges your claim, you can retrieve your vehicle and commence a claim for damages. Refer to the guidelines on retrieving a vehicle from a bailiff's vehicle pound.

Seek assistance from a solicitor to communicate the relevant information to the bailiff company.

If the creditor appears reluctant to acknowledge your claim, they will be aware that you are incurring costs, which they will be responsible for if the court rules in your favour.

Refrain from completing any forms provided by the bailiff company.

These forms are often intended to obstruct your claim and frequently fail to comply with regulations.

Refuse to sign a disclaimer.

If staff at the vehicle pound acknowledges that the vehicle belongs to you but continues to withhold it in an attempt to pressure you into signing away your rights to claim damages. Refrain from signing and seek guidance on obtaining an injunction.

If your third-party claim is denied, proceed to submit an application to the court.

Procedure:

The Law:

Civil Procedure Rule 85.5 states:

(1) Where a creditor, or any other claimant to controlled goods to whom a notice of claim to controlled goods was given, gives notice under rule 85.4(3) that the claim to controlled goods, or any part of it, is disputed, and wishes to maintain their claim to the controlled goods, the following procedure will apply.

(2) The claimant to controlled goods must make an application which must be supported by—

(a) a witness statement—

(i) specifying any money;

(ii) describing any goods claimed; and

(iii) setting out the grounds upon which their claim to the controlled goods is based; and

(b) copies of any supporting documents that will assist the court to determine the claim.

(3) In the High Court the claimant to controlled goods must serve the application notice and supporting witness statements and exhibits on—

(a) the creditor;

(b) any other claimant to controlled goods of whom the claimant to controlled goods is aware; and

(4) In the County Court when the application is made the claimant to controlled goods must provide to the court the addresses for service of—

(a) the creditor;

(b) any other claimant to controlled goods of whom the claimant to controlled goods is aware; and

(c) the enforcement agent, ('the respondents'), and the court will serve the application notice and any supporting witness statement and exhibits on the respondents.

(5) An application under paragraph (2) must be made to the court which issued the writ or warrant conferring power to take control of the controlled goods, or, if the power was conferred under an enactment, to the debtor’s home court.

(6) The claimant to controlled goods must make the required payments on issue of the application in accordance with paragraph 60(4)(a) of Schedule 12, unless such claimant seeks a direction from the court that the required payment be a proportion of the value of the goods, in which case they must seek such a direction immediately after issue of the application, on notice to the creditor and to the enforcement agent.

(7) The application notice will be referred to a Master or District Judge.

(8) On receipt of an application for a claim to controlled goods, the Master or District Judge may—

(a) give directions for further evidence from any party;

(b) list a hearing to give directions;

(d) determine the amount of the required payments, make directions or list a hearing to determine any issue relating to the amount of the required payments or the value of the controlled goods;

(e) stay, or dismiss, the application if the required payments have not been made;

(f) make directions for the retention, sale or disposal of the controlled goods;

(g) give directions for determination of any issue raised by a claim to controlled goods.

Third-party claimants must deposit funds equivalent to the value of the goods with the court.

Incorporate an application for a direction under CPR 85.5(6), where the necessary payment corresponds to a proportion of the goods' value.

In the event that the CPR 85.5(6) application is rejected, it may be more cost-effective to Pay and Reclaim the vehicle, and subsequently request the debt to be transferred to you. However, if no formal assignment is provided, you can assert a claim to be subrogated to the council's claim for the money being enforced.

There are three categories of damages you are entitled to claim:

Special Damages: This includes expenses such as the cost of repairing damage to the car, loss of use of the car (for example, taxi fares, rental car fees), and loss of earnings.

Restitutional Damages: The bailiff may be instructed to compensate you for any profits earned or benefits gained from seizing your car.

Conversion: Payment or compensation for being deprived of the lawful right to use your car.

Collect as many of the following items as possible:

V5 logbook in your name, indicating the date of acquisition of the goods.

Advertisement of sale for the goods you purchased.

Insurance policy covering the use of the goods, showing the start date.

Proof of vehicle tax purchase.

Bill of sale or invoice

Bank statements illustrating the money flow to the seller.

If already submitted, include a screenshot of the email sent to the bailiff company and the creditor.

See: Reclaiming an impounded vehicle

The Law:

Paragraph 60 of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 states:

Third party claiming goods

(1) This paragraph applies where a person makes an application to the court claiming that goods taken control of are his and not the debtor's.

(2) After receiving notice of the application the enforcement agent must not sell the goods, or dispose of them (in the case of securities), unless directed by the court under this paragraph.

(3) The court may direct the enforcement agent to sell or dispose of the goods if the applicant fails to make, or to continue to make, the required payments into court.

(4) The required payments are—

(a) payment on making the application (subject to sub-paragraph (5)) of an amount equal to the value of the goods, or to a proportion of it directed by the court;

(b) payment, at prescribed times (on making the application or later), of any amounts prescribed in respect of the enforcement agent's costs of retaining the goods.

(5) If the applicant makes a payment under sub-paragraph (4)(a) but the enforcement agent disputes the value of the goods, any underpayment is to be—

(a) determined by reference to an independent valuation carried out in accordance with regulations, and

(b) paid at the prescribed time.

(6) If sub-paragraph (3) does not apply the court may still direct the enforcement agent to sell or dispose of the goods before the court determines the applicant's claim, if it considers it appropriate.

(7) If the court makes a direction under sub-paragraph (3) or (6)—

(a) paragraphs 38 to 49, and regulations under them, apply subject to any modification directed by the court;

(b) the enforcement agent must pay the proceeds of sale or disposal into court.

(8) In this paragraph "the court", subject to rules of court, means—

(a) the High Court, in relation to an enforcement power under a writ of the High Court;

(b) the county court, in relation to an enforcement power under a warrant issued by the county court;

According to the law, you are prohibited from selling your car after receiving a Notice of Enforcement.

Your possessions are considered "bound" upon receipt of a Notice of Enforcement or, in the instance of a High Court Writ, when the bailiff is authorized to act.

If you have not received a Notice of Enforcement and the debt recovery does not involve a High Court writ, your goods are not bound..

The Law:

Paragraph 61 of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 states:

Application to assignee or transferee

(1)This Schedule applies as follows where an interest of the debtor's in goods is assigned or transferred while the property in the goods is bound for the purposes of an enforcement power, and the enforcement agent—

(a)knows that the assignee or transferee has an interest in the particular goods, or

(b)would know, if he made reasonable enquiries.

(2)These apply as if the assignee or transferee were a co-owner of the goods with the debtor—

(a)paragraph 34 (inventory);

(b)paragraph 36 (valuation);

(c)paragraphs 39 to 41 (sale);

(d)paragraph 59(6) (remedies after payment of amount outstanding).

(3)If the interest of the assignee or transferee was acquired in good faith, for valuable consideration and without notice, paragraph 50(6) applies as if "co-owner" included the assignee or transferee.

(4)If the interest of the assignee or transferee was not acquired in good faith, for valuable consideration and without notice, the enforcement agent must pay any surplus under paragraph 50(5) to the assignee or transferee and to the debtor (if he retains an interest).

(5)If the surplus is payable to two or more persons it must be paid in shares proportionate to their interests.

(6)Paragraph 5(3) and (4) ("good faith" and "notice") apply for the purposes of this paragraph.

Paragraph 62 of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 states:

Costs

(1)Regulations may make provision for the recovery by any person from the debtor of amounts in respect of costs of enforcement-related services.

(2)The regulations may provide for recovery to be out of proceeds or otherwise.

(3)The amount recoverable under the regulations in any case is to be determined by or under the regulations.

(4)The regulations may in particular provide for the amount, if disputed, to be assessed in accordance with rules of court.

(5)"Enforcement-related services" means anything done under or in connection with an enforcement power, or in connection with obtaining an enforcement power, or any services used for the purposes of a provision of this Schedule or regulations under it.

The bailiff is not responsible to the owner of controlled goods unless they were informed that the goods do not belong to the debtor.

Paragraph 63 of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 states:

Limitation of liability for sale or payment of proceeds

(1)Any liability of an enforcement agent or related party to a lawful claimant for the sale of controlled goods is excluded except in two cases.

(2)The first exception is where at the time of the sale the enforcement agent had notice that the goods were not the debtor's, or not his alone.

(3)The second exception is where before sale the lawful claimant had made an application to the court claiming an interest in the goods.

(4)A lawful claimant in relation to goods is a person who has an interest in them at the time of sale, other than an interest that was assigned or transferred to him while the property in the goods was bound for the purposes of the enforcement power.

Paragraph 64 of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 states:

(1)Any liability of an enforcement agent or related party to a lawful claimant for paying over proceeds is excluded except in two cases.

(2)The first exception is where at the time of the payment he had notice that the goods were not the debtor's, or not his alone.

(3)The second exception is where before that time the lawful claimant had made an application to the court claiming an interest in the goods.

(4)A lawful claimant in relation to goods is a person who has an interest in them at the time of sale.

Paragraph 65 of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 states:

(1)Paragraphs 63 and 64—

(a)do not affect the liability of a person other than the enforcement agent or a related party;

(b)do not apply to the creditor if he is the enforcement agent.

(2)The following apply for the purposes of those paragraphs.

(3)The enforcement agent or a related party has notice of something if he would have found it out if he had made reasonable enquiries.

(4)A related party is any person who acts in exercise of an enforcement power, other than the creditor or enforcement agent.

(5)"The court" has the same meaning as in paragraph 60.