Court Enforcement Services has responded to a court decision which states that current legislation doesn’t prevent a controlled goods agreement being secured when agents haven’t entered premises to enforce a debt.
Issuing her decision today (Friday 8 January), Victoria McCloud, a master of the senior courts, Queens Bench Division, stated that provisions in the Tribunals, Courts and Enforcement Act 2007 do not prevent what she described as a “non-entry CGA” (controlled goods agreement).
The case centred on whether court approval and agreement could be given to the following:
· Subject to the consent of both judgment creditor and debtor, a high court enforcement officer would not be prevented from conducting a video call, as opposed to a physical visit, at the debtor’s property pursuant to a writ of control;
· A high court enforcement officer would be able to enter into a controlled goods agreement with a judgment debtor during a video call;
· Having secured a controlled goods agreement, the high court enforcement officer could take control of the debtor’s goods, pursuant to the legislation.
During the hearing the enforcement trade associations – the High Court Enforcement Officers’ Association (HCEOA) and the Civil Enforcement Association (CIVEA) were both represented as interested parties.
The court issued a declaration in the form proposed by the HCEOA and CIVEA that: “An enforcement agent may enter into a controlled goods agreement within the meaning of Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 with a debtor whether or not the enforcement agent has physically entered the premises on which the goods are located.”
The court stated that the ruling was a matter of statutory construction and was not an endorsement of a specific approach.
The court also found that “the Act, in short, does not forbid a non-entry CGA, but the regulations do not fully enable it to be given effect as they presently stand.”
A statement from Court Enforcement Services said: “The (Tribunals Courts and Enforcement Act) regulations were drafted at a time when most of the current video technologies and applications such as Zoom, Teams and Skype had not yet been developed and so the option was not envisaged, anticipated or available at that time.
"In view of this, there was nothing in the regulations to say that video calls could or could not be undertaken.
“The regulations already provide the ability to enter into a payment arrangement in the compliance period, without the need for a visit or CGA, so we cannot see the benefit of requesting that a debtor go through the process of allowing a visit via video call to walk an EA around their house, when they have already engaged to agree settlement and a creditor has agreed to payment arrangements during an extended compliance period.
“We believe that fair communications are central to an effective enforcement process. We are proud that we successfully engage with 39% of our debtors during the compliance stage and we agree successful arrangements with 29% of cases that are fully paid during the compliance stage.
"There is no requirement for us to take control of goods in the compliance phase as we have agreements is in place with our clients. We have been following this approach for the last six years. Our approach results in a lighter touch and delivers a fair resolution for both our clients and our debtors.
“We also believe a video call can be more intrusive than a telephone call or visit and think that debtors may have understandable privacy concerns and prefer not to show themselves, but it can be an option for those that are happy to communicate in that way.
“Despite this decision, we believe that this proposal requires clarifications from the Ministry of Justice, which we would need to have before we could consider taking control of goods by way of a video call.”
Court Enforcement Services added: “In situations where we are unable to secure payment or an agreed payment arrangement during the compliance phase we believe that it is necessary to visit the debtor’s residence or business location to secure engagement and, in these situations, it is most appropriate to conduct a personal visit and physically take control of goods if required.”
“Due to our highly successful compliance-based collections process, this decision will not affect our approach, which means it is business as usual at Court Enforcement Services, until such time as clarity is provided in the form of updated regulations on the conduct of such a visit and any fees that could be charged.
“In any event, we believe it is highly unlikely that our clients would want us to use video calls to take control of goods as the feedback and opposition received from CCUA members suggests that they do not require this additional process.”
The firm’s statement added: “We fully appreciate the importance of protecting our client’s brand and reputation and our duty of care in all our engagements. Despite the pandemic, national lockdown and restrictions on physical enforcement activity, we have still seen an increase of three percent more writs paid in full compared to the same period last year and this has been achieved without having to enter the debtor’s premises or the need to enter into a CGA.”