This week I return to work from maternity leave and in addition to the bonus of engagement of my brain and having adult conversation, I welcome the escape from daytime television, which appears to be littered with programmes documenting the shenanigans of enforcement agents (more commonly known as bailiffs or sheriffs).
An enforcement agent, as the name suggests, is normally enlisted by landlords or creditors to recover possession of property or unpaid fines or court judgments. They are generally used as a last resort in civil proceedings where a judgment/order obtained from the court remains outstanding.
Prior to this a defendant would have had ample opportunity to respond to any civil claim issued. If they willing choose to ignore the court then they do so at their own peril.
However, there are many on these programmes who claim to have never received any documents from the other party or the court and so they were oblivious that a claim had been issued or determined. Is that a valid excuse?
By the time the matter makes its way to an enforcement agent, it is usually too late as they cannot interfere with the jurisdiction of the civil court. Therefore the only way is to challenge the court order itself.
This can be done in 2 ways:
1) The first is to make an application to set aside the order, under section 39.3 of the Civil Procedure Rules (where the order was made at a final hearing).
You must show that :
a) You acted promptly,
b) You had a good reason for not attending the final hearing, and
c) You have a reasonable prospect of success
2) The second method is to appeal the order under section 52 of the Civil Procedure Rules. In the first instance you would need to apply for permission to appeal and show you had a real prospect of succeeding or that there was some other compelling reason for the appeal to be heard. The standard time limit for an appeal is extremely strict at 21 days.
Which method should you choose and must it be one or the other?
In the case of Bank of Scotland v Pereira & Pain (2011) the judge clarified that although they are not mutually exclusive, there would be circumstances where a failed application to set aside would prejudice a subsequent appeal.
Arguable there are higher hurdles down the appeal route, but an application to set aside is generally reserved for non-attendance at the final hearing.
The lesson to be learned is clearly that time is of essence and so proper legal advice should be sought at the earliest opportunity, ideally before you find an enforcement officer knocking at your door.