A to Z of Enforcement – Part Four
by David Carter of The Sheriffs Office
In this final part of our A to Z of enforcement, we cover the seizure and sale of goods, tools of the trade, “unless” orders, company voluntary arrangements and walking possession orders.
S - Seizure and sale of goods
It is the duty of the HCEO or Certificated Bailiff to seize the goods of the debtor in order to sell (normally at auction) and raise the money to clear the debt. If sold at auction, the auctioneer will always try to get the best price for the goods, selling to the highest bidder on the day. The court may also allow for the goods seized to be sold privately rather than at public auction if it can be demonstrated that a higher price is likely to be obtained. This is called private treaty. This is usually the best option for goods that are quite specialist or where there is already an interested party.
T - Tools of the trade
Tools of the trade, i.e. tools and equipment essential to work or trade, are exempt from seizure. However, these goods must be used solely by the debtor for the purposes of his or her work. For example, a commercial van that is also used by the debtor’s spouse is available for seizure. This exemption is only available to sole traders and cannot be claimed by partnerships or limited companies.
U – “Unless” order
These are court orders specifying that a party to the proceedings must do a specific thing by a set date. If they do not, then the order stipulates what will happen next. If the party does not comply, then the next stage will happen automatically, without any further orders from the court. For example, the court may order the judgment debtor to pay in installments; if they miss an installment, then the HCEO is authorised to enter and seize goods to cover the outstanding balance owed.
V - Voluntary arrangements – how they impact on enforcement
A company voluntary agreement is put in place to allow a company to continue trading while making an arrangement with its creditors. The arrangement is proposed by the company to its creditors and, once accepted by the appropriate majority, is binding on all creditors. Normally, the creditors will agree to accept a delay in payment, a smaller payment, or a combination of the two. Enforcement of writs of execution is normally suspended during a company voluntary arrangement.
W - Walking possession order
When leaving seized goods at the debtor’s premises, the HCEO provides a Walking Possession Agreement. This states that he has taken possession of the goods and that the goods will remain in his custody until the debt and all costs have been paid. The debtor may not sell or remove the goods, nor may he let any one else do so. The walking possession agreement also obtains the debtor’s permission to re-enter at any time and as often as they need to inspect the goods and remove them. The agreement allows the HCEO to re-enter by force if necessary.
Disclaimer: The statements and opinions expressed in this article are those of the author and do not necessarily reflect those of Sheriffs High Court Enforcement Ltd, trading as The Sheriffs Office. Sheriffs High Court Enforcement Ltd does not take any responsibility for the views of the author. The author will not be held responsible for any comments posted by visitors to this site.
Please note that this article does not constitute legal advice. The author has used his best endeavours to make this article as accurate and complete as possible, but requests that the reader be aware that the law of England and Wales frequently changes. The author strongly advises the reader to take legal advice before embarking on any enforcement action.