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13 January 2021
The advent of virtual enforcement is a big moment for the industry.
Firstly, it ensures that enforcement agents now permitted to work from home. Secondly, it provides a way for those in debt to secure payment plans without a physical visit - saving approximately £200.
Finally, by organising payment plans, creditors can also secure priority of writ. This ensures that they are repaid earlier when someone owes money against multiple bills.
Priority of Writ is an important concept for high court enforcement.
To find out more, we caught up with Chris Badger AHCEO, Legal and Compliance Director of Just.
What is the priority of writs in high court enforcement?
Priority between Writs exists so as to define the order in which Writs should be paid or at the very least to identify how the money paid under a Writ should be applied where more than one Writ against the same Debtor has been issued.
What I mean by that is, if you have three Writs, the priority of those Writs is defined by the date upon which the first one was received by the person that is under a duty and law to enforce it. That's the relevant high court enforcement officer. So the if you have three different writs with three different officers, it's the date upon which the first writ reached the first officer and that's defined in the civil procedure rules act, rule 83.4.
So how does the recent case of Court Enforcement Services vs Marstons impact creditors using High Court enforcement to recover unpaid debts?
Priority in relation to enforcement officers, or sheriff officers as they were previously called, has existed for a very long time and there's significant amount of historic case law that deals with it dating back to the 17th and 18th centuries.
However, when high court enforcement was reformed in 2014 with the introduction of Schedule 12 to the Tribunal Courts and Enforcement Act and the taking control of goods regulations, there was a view that the historic case law would cease to exist and that as such priority of writs no longer applied, notwithstanding the provision in the civil procedure rules that I've just referred to.
What the Court Enforcement Services vs. Marston decision does is to re-establishes that priority applies and therefore provides an up-to-date legal authority on it. This case was considered by the court of appeal before three Court of appeal Judges in May 2020.
The Court of appeal found was that the enforcement agent and the high court enforcement officer in that particular case had acted improperly and one of the reasons that the court of appeal reached this decision was that was that they were on notice of the earlier Writs and also the control goods agreement and notwithstanding this notice proceeded to enforce in any event.
As a result of this, the court of appeal found that there had been improper conduct because of notice and because they were fully aware that an earlier Writ existed. In essence, what this judgment therefore does is re-establish the long-standing position of priority in a modern day, fully up to date context.
Furthermore, it establishes that high court enforcement officers are more than just agents of the creditor but establishes that they are in fact officer of the court first and foremost in addition to their duties to the creditor.
What is your advice for creditors considering High Court enforcement to recover unpaid debts in 2021 including utility firms and legal service providers?
My advice would be that as we all know we're currently in very uncertain times with the impact of the Covid-19 pandemic and I think a number of creditors perhaps reluctant to take enforcement action and to issue writs in the current climate.
Certainly, as we await the successful rollout of the vaccine, we anticipate that creditors may delay issuing Writs of control purely as a result of the uncertain times we find ourselves in.
However, my advice would be to, for the reasons that I've mentioned earlier, creditors should seek to issue writs at the earliest opportunity in order to secure their place at the front of the queue. Virtual Enforcement is an effective new way to do this.
The simple reason for this is it is the issue date of the Writ that is the key, or in fact the date that the Writ is received by the relevant High Court Enforcement Officer. Consequently, if you wait you will run the risk of falling to the back of the queue where multiple Writs of control are issued may have been issued by multiple creditors against the same debtor.
The Creditor that issues against their debtor first is the Creditor that was going to receive their money first where there is a prior and subsequent situation and where there is more than one Writ against the same defendant.
In summary, I would absolutely encourage creditors to issue high court Writs of control as soon as they have the opportunity to do so rather than holding back due to any economic or pandemic related considerations.