What's being said

Back to Listing

An Encouraging Update from Just

01 February 2021

Reproduced in full from BAILIFF STUDIES BULLETIN Issue no. 79 (Feb. ‘21)

Further to the report of the High Court decision concerning virtual or non-entry CGAs reported in the last Bulletin, Just have kindly provided an update on their implementation of virtual enforcement, which demonstrates their confidence that the process is workable immediately and that the judge’s comments about the potential difficulties arising from the form of the regulations should not be overemphasised.

In the conclusion to her decision, the judge stated that:

“in the absence of [amended] regulations… a 'non-entry' CGA would offer limited enforcement options if breached unless (a) a warrant for forcible entry could be obtained or (b) peaceable entry was obtained legitimately under para. 14 of Sch.12 after entry into the CGA, meaning that subsequent steps are 're-entry'. The Act, in short, does not forbid a non-entry CGA entry, but the Regulations do not fully enable it to be given effect as they presently stand.”

In helpful news for all practitioners, Just state that they feel that these issues of physical access do not prevent the use of virtual CGAs straight away and will in any case only apply to a very small number of cases where the creditor wants and permits their enforcement agents to force entry into people’s homes- which is something that Just does not intend to do.

The company’s approach to the use of virtual CGAs is as follows:

  • To agree short term payment plans at the compliance stage in cases regarded as low risk or having no assets;
  • In cases where a compliance stage plan is not suitable and which would otherwise be accelerated to a physical visit (those that are high value or high risk, and/or where an unsecured payment plan is not deemed to be appropriate because of the existence of assets or because the payments offered would take an extended time to repay), a virtual visit will be offered;
  • The virtual visit is preceded by telephone contact to confirm payment terms and available assets and to complete a draft CGA;
  • The virtual visit then takes place, during which the assets are verified and the CGA is made, the agreed payment plan being thereby secured on the assets;
  • If there is a breach of the payment plan under the CGA, the first course of action is to re-engage with the debtor by phone to re-establish payments
  • If arrangements are not re-established the case is assessed and either a physical visit takes place or, if the debtor refuses access to the enforcement agent, a court application for forcible entry is submitted.
  • In terms of the High Court fee scale, the CGA is an enforcement stage one activity and is completed after the compliance stage, but the company is choosing to not charge the stage one fee for this.

Forced re-entries following default on conventional CGAs seem, in any case, to be very rare. Just anticipate that the proportion of cases in which default upon a virtual CGA would need to be considered for such action would be very small indeed and that, with good management and supervision of cases, problems can be avoided or resolved in the majority of cases.

Further, it is Just’s opinion that small debts, such as PCNs or fines, are more likely to have compliance stage payment arrangements without the requirement for a virtual enforcement visit and CGA. They feel that virtual enforcement visits and CGAs would be more widely applicable to large debts, such council tax, utility bills, NNDR, commercial rents and large commercial judgments, where the debtor needs a longer period to pay.

On this basis, therefore, Just are confident that there is no need to wait for the revision to the regulations that has been called for and that the virtual CGA process is not only lawful but is immediately usable, the additional processes for gaining physical entry to premises being unlikely to present any problems and, in fact, that seeking further court approval before forced re-entry is actually good practice in any case. The clarity that the industry is seeking from MoJ relates to what fees could be charged for virtual enforcement or if indeed an immediate forced entry could be made following a broken arrangement, neither of which are relevant to the Just approach.

This update will no doubt come as encouraging news to other practitioners who may have been left uncertain about the status of the new procedure following the judgment. It may give them greater confidence to take steps to implement virtual enforcement visits and CGAs themselves, if they model their processes along the lines of those now being actively applied by Just

Bailiff Studies Bulletin is produced on a periodic basis by John Kruse, London, E1

John Kruse has specialised in enforcement (bailiffs) law since the late 1980s.  In 2010 he has set up the Bailiff Studies Centre and in total he has written over 20 books on enforcement law plus other books on court procedures and other aspects of debt recovery. 

The annual subscription for Bailiff Studies Bulletin is £125. For information and subscription, please contact: bailiff.bulletin@gmail.com.