A claimant can pursue a dispute about fees against a High Court Enforcement Officer or its agent.
Summary
The Court of Appeal held that the proper defendant against whom to bring a claim for detailed assessment of enforcement fees was a High Court Enforcement Officer (HCEO). The HCEO was also the correct defendant for a damages claim.
A claim could also be brought against a High Court Enforcement Agent.
Background
The appellant Mr Bone was issued with a High Court writ of control (the writ). The writ was directed to Mr Williamson, a HCEO authorised to enforce High Court writs. Mr Williamson instructed a High Court Enforcement Agent (HCEA) - Mr Brown, who visited Mr Bone to enforce the writ.
Fees claimed for the visit were £5,703.60. Mr Bone wrote to Mr Brown's employer to challenge the fees.
Stay of execution
Mr Bone successfully applied to court for a stay of execution. Mr Brown, the enforcement agent, nonetheless visited again, claiming oversight on his part. Mr Bone issued a claim for detailed assessment of the fees against Mr Williamson under regulation 16 of the Taking Control of Goods (Fees) Regulations 2014 (the fees regulations) and Civil Procedure Rule 84.16.
Claim against the Enforcement Officer
Mr Bone claimed damages for Mr Brown's breach of the stay of execution under para 66 of Schedule 12, Tribunals Courts and Enforcement Act 2007.
Mr Williamson argued that Mr Brown was the correct defendant. The fee assessment application was discontinued upon Mr Brown's agreement to return the enforcement fees.
The High Court interpreted regulation 4 of the fees regulations as referring to the 'fees of the HCEA...not the HCEO'. The court held that Mr Williamson was not the correct defendant, dismissed Mr Bone's damages claim, and awarded Mr Williamson costs in relation to the fees assessment.
Mr Bone appealed.
The court's decision
The Court of Appeal reversed the High Court decision and held that a debtor is entitled to bring a fees dispute against the HCEO rather than against the HCEA. The court also decided that:
enforcement fees are due to the HCEO, who has legal responsibility for charging them
the HCEA is the agent of the HCEO
the HCEA could be added as a party, but doing so unnecessarily might have costs implications
both the HCEO and HCEA can be defendants in damages claims where it is alleged that an HCEA has breached a provision of Schedule 12 Tribunals Court and Enforcement Act 2007
The court also held that the HCEO must authorise the HCEA to enforce a writ unless the HCEO is 'dual qualified' as a HCEA.
Orders about costs
The appellant, Mr Bone, was not liable to pay the costs of either the HCEA or the HCEO in the fees dispute or the damages claim. He was not liable for the costs incurred by the HCEO fee dispute.
Comments
The judgment provides useful clarification when advising about who should be listed as the defendant in an action for detailed assessment or damages.
The High Court Enforcement Officers Association gave evidence as intervenor in the proceedings. It stated in paragraph 22 of the judgment 'any fees recovered under the power of the writ are the entitlement of the HCEO and not the HCEA'.
This is useful information for people who need to escalate a complaint about fees or other issues to the High Court Enforcement Officers Association for determination, particularly in cases where an HCEA is acting as agent.
Paragraph 14b of the Association's complaints procedure confirms it will consider whether the appropriate enforcement stages have been reached to trigger particular fees.
Complaints as an alternative to court action
In practice, complaints about enforcement fees often hinge on disputes about whether an enforcement stage has been triggered. These complaints will likely remain the most practical remedy for most debtors who dispute enforcement fees or raise other breaches of the rules. This is because of the potential costs risk of court applications, as illustrated in this judgment.