Fees and disbursements of an enforcement agent disallowed as the debtor was vulnerable and should have been given more time to seek advice.
Summary
The High Court considered whether the fees and disbursements of an enforcement agent should be disallowed under Regulation 12 of the Taking Control of Goods (Fees) Regulations 2014.
The court held that as the debtor was vulnerable and should have been given more time to seek advice, the fees would be disallowed.
Background
The claimant, Progressive Property Ventures LLP (PPV), sought enforcement of a judgment debt owed by the applicant, Mrozinski. PPV instructed High Court enforcement officers. The court issued a writ of control on 14 September 2021. Mrozinksi received a notice of enforcement on 24 September 2021.
Mrozinski emailed the enforcement officers on 14 October 2021, explaining he was vulnerable. He requested that enforcement be put on hold. Mrozinski asked for more time to make payments. He did not make an application to court to vary the judgment to an instalment order.
Enforcement officers clamped Mrozinski's car on 4 November 2021. Mrozinski requested time to get advice about setting aside and varying the judgment debt. The car was removed on 5 November 2021.
Application to have fees disallowed
Mrozinski applied to have the High Court enforcement officer fees and disbursements disallowed under regulation 12 of Taking Control of Goods (Fees) Regulations 2014. He stated he did not have adequate opportunity to seek advice.
The enforcement officers disagreed and asked the court to consider that Mrozinski had sufficient opportunity to seek advice and assistance from the date of service of the notice of enforcement.
The court’s decision
The court granted Mrozinksi’s application to disallow the fees and disbursements of the enforcement officer.
Applicant vulnerability
The court referenced the Taking Control of Goods: National Standards and held that the term 'vulnerable' should be construed widely. Based on medical evidence, the court was satisfied that Mrozinski was vulnerable because he was suffering from anxiety, depression, and significant problems sleeping to such an extent that medication was required.
According to the court, Mrozkinski showed some sophistication and familiarity with the rules. The court was satisfied that the medical evidence presented would have affected Mrozinski's ability to deal with enforcement, despite his 'relative sophistication'.
The period to seek advice
In response to the enforcement officers' argument, the court examined the meaning of 'assistance and advice in relation to the exercise of the enforcement power' in regulation 12.
The court cited the case of Digital Marketplace v HCEOA and others [2021] EWHC 15 (QB) and clarified that “whilst the 'enforcement power' arises once the writ is directed to the agent (High Court enforcement officer), the exercise of it only commences when the procedure for taking control commences validly: that is, on taking control of goods.”
The court held that the enforcement power commenced at the point the car was clamped and this was when the relevant period to seek advice began.
Length of time to seek advice
The court held that Mrozinski was not given enough time to obtain advice and assistance as the car was removed only a day after it had been clamped.
The judge commented that advice and assistance “must include practical assistance (and might include, for instance, an application to the court or negotiation with the creditor).”
Comments
This judgment clarifies that when considering vulnerable debtors and the application of regulation 12, the period to seek advice and assistance begins from the point goods are taken into control and not when the notice of enforcement is first served.
This decision can be particularly helpful for advisers dealing with cases where a writ or warrant has been issued but enforcement agents have delayed in taking control of goods.
Vulnerable debtors should be given adequate opportunity to seek advice before goods are removed. The court did not define what would be ‘adequate opportunity’. The court commented that, in this case, even a working week or several days was not a lengthy period of time. It is likely that each client circumstance will need to be judged on a case-by-case basis.
This case further reinforces that enforcement agents should be adhering to the Taking Control of Goods: National Standards.
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