|
| |
|
(4) | The power to make regulations under this paragraph is subject to paragraph |
| |
| |
49 (1) | The creditor may sue in the name of the debtor, or in the name of any person |
| |
in whose name the debtor might have sued, for the recovery of any sum |
| |
secured or made payable by securities, when the time of payment arrives. |
| 5 |
(2) | Before any proceedings under sub-paragraph (1) are commenced or the |
| |
securities are otherwise disposed of, the enforcement agent must give notice |
| |
of the disposal to the debtor and any co-owner. |
| |
(3) | Regulations must state— |
| |
(a) | the minimum period of notice; |
| 10 |
(b) | the form of the notice; |
| |
(c) | what it must contain; |
| |
(d) | how it must be given. |
| |
(4) | The enforcement agent may replace a notice with a new notice, subject to any |
| |
restriction in regulations. |
| 15 |
(5) | Any notice must be given within the permitted period. |
| |
(6) | Unless extended the permitted period is 12 months beginning with the time |
| |
| |
(7) | Any extension must be by agreement in writing between the creditor and |
| |
debtor before the end of the period. |
| 20 |
(8) | They may extend the period more than once. |
| |
| |
50 (1) | Proceeds from the exercise of an enforcement power must be used to pay the |
| |
| |
(2) | Proceeds are any of these— |
| 25 |
(a) | proceeds of sale or disposal of controlled goods; |
| |
(b) | money taken in exercise of the power, if paragraph 37(1) does not |
| |
| |
(3) | The amount outstanding is the sum of these— |
| |
(a) | the amount of the debt which remains unpaid (or an amount that the |
| 30 |
creditor agrees to accept in full satisfaction of the debt); |
| |
(b) | any amounts recoverable out of proceeds in accordance with |
| |
regulations under paragraph 62 (costs). |
| |
(4) | If the proceeds are less than the amount outstanding, which amounts in sub- |
| |
paragraph (3)(a) and (b) must be paid, and how much of any amount, is to |
| 35 |
be determined in accordance with regulations. |
| |
(5) | If the proceeds are more than the amount outstanding, the surplus must be |
| |
| |
(6) | If there is a co-owner of any of the goods, the enforcement agent must— |
| |
(a) | first pay the co-owner a share of the proceeds of those goods |
| 40 |
proportionate to his interest; |
| |
(b) | then deal with the rest of the proceeds under sub-paragraphs (1) to |
| |
| |
|
| |
|
| |
|
(7) | Regulations may make provision for resolving disputes about what share is |
| |
due under sub-paragraph (6)(a). |
| |
| |
51 (1) | A purchaser of controlled goods acquires good title, with two exceptions. |
| |
(2) | The exceptions apply only if the goods are not the debtor’s at the time of sale. |
| 5 |
(3) | The first exception is where the purchaser, the creditor, the enforcement |
| |
agent or a related party has notice that the goods are not the debtor’s. |
| |
(4) | The second exception is where a lawful claimant has already made an |
| |
application to the court claiming an interest in the goods. |
| |
(5) | A lawful claimant in relation to goods is a person who has an interest in |
| 10 |
them at the time of sale, other than an interest that was assigned or |
| |
transferred to him while the property in the goods was bound for the |
| |
purposes of the enforcement power. |
| |
(6) | A related party is any person who acts in exercise of an enforcement power, |
| |
other than the creditor or enforcement agent. |
| 15 |
(7) | “The court” has the same meaning as in paragraph 60. |
| |
Abandonment of goods other than securities |
| |
52 | Paragraphs 53 and 54 apply to controlled goods other than— |
| |
| |
(b) | money to which paragraph 37(1) does not apply. |
| 20 |
53 (1) | Controlled goods are abandoned if the enforcement agent does not give the |
| |
debtor or any co-owner notice under paragraph 40 (notice of sale) within the |
| |
| |
(2) | Controlled goods are abandoned if they are unsold after a sale of which |
| |
notice has been given in accordance with that paragraph. |
| 25 |
(3) | Regulations may prescribe other circumstances in which controlled goods |
| |
| |
54 (1) | If controlled goods are abandoned then, in relation to the enforcement |
| |
power concerned, the following apply— |
| |
(a) | the enforcement power ceases to be exercisable; |
| 30 |
(b) | as soon as reasonably practicable the enforcement agent must make |
| |
the goods available for collection by the debtor, if he removed them |
| |
from where he found them. |
| |
(2) | Regulations may make further provision about arrangements under sub- |
| |
paragraph (1)(b), including in particular provision about the disposal of |
| 35 |
goods uncollected after a prescribed period. |
| |
(3) | Where the enforcement power was under a writ or warrant, sub-paragraph |
| |
(1) does not affect any power to issue another writ or warrant. |
| |
Abandonment of securities |
| |
55 | Paragraphs 56 and 57 apply to securities as controlled goods. |
| 40 |
|
| |
|
| |
|
56 (1) | Securities are abandoned if the enforcement agent does not give the debtor |
| |
or any co-owner notice under paragraph 49 (notice of disposal) within the |
| |
| |
(2) | Securities are abandoned if they are not disposed of in accordance with a |
| |
notice of disposal under that paragraph. |
| 5 |
(3) | Regulations may prescribe other circumstances in which securities are |
| |
| |
57 (1) | If securities are abandoned then, in relation to the enforcement power |
| |
concerned, the following apply— |
| |
(a) | the enforcement power ceases to be exercisable; |
| 10 |
(b) | as soon as reasonably practicable the enforcement agent must make |
| |
the securities available for collection by the debtor, if he removed |
| |
them from where he found them. |
| |
(2) | Where the enforcement power was under a writ or warrant, sub-paragraph |
| |
(1) does not affect any power to issue another writ or warrant. |
| 15 |
Payment of amount outstanding |
| |
58 (1) | This paragraph applies where the debtor pays the amount outstanding in |
| |
| |
(a) | after the enforcement agent has taken control of goods, and |
| |
(b) | before they are sold or abandoned. |
| 20 |
(2) | If the enforcement agent has removed the goods he must as soon as |
| |
reasonably practicable make them available for collection by the debtor. |
| |
(3) | No further step may be taken under the enforcement power concerned. |
| |
(4) | For the purposes of this paragraph the amount outstanding is reduced by |
| |
the value of any controlled goods consisting of money required to be used |
| 25 |
to pay that amount, and sub-paragraph (2) does not apply to that money. |
| |
59 (1) | This paragraph applies if a further step is taken despite paragraph 58(3). |
| |
(2) | The enforcement agent is not liable unless he had notice, when the step was |
| |
taken, that the amount outstanding had been paid in full. |
| |
(3) | Sub-paragraph (2) applies to a related party as to the enforcement agent. |
| 30 |
(4) | If the step taken is sale of any of the goods the purchaser acquires good title |
| |
unless, at the time of sale, he or the enforcement agent had notice that the |
| |
amount outstanding had been paid in full. |
| |
(5) | A person has notice that the amount outstanding has been paid in full if he |
| |
would have found it out if he had made reasonable enquiries. |
| 35 |
(6) | Sub-paragraphs (2) to (4) do not affect any right of the debtor or a co-owner |
| |
to a remedy against any person other than the enforcement agent or a related |
| |
| |
(7) | In this paragraph, “related party” has the meaning given by paragraph 65(4). |
| |
|
| |
|
| |
|
Third party claiming goods |
| |
60 (1) | This paragraph applies where a person makes an application to the court |
| |
claiming that goods taken control of are his and not the debtor’s. |
| |
(2) | After receiving notice of the application the enforcement agent must not sell |
| |
the goods, or dispose of them (in the case of securities), unless directed by |
| 5 |
the court under this paragraph. |
| |
(3) | The court may direct the enforcement agent to sell or dispose of the goods if |
| |
the applicant fails to make, or to continue to make, the required payments |
| |
| |
(4) | The required payments are— |
| 10 |
(a) | payment on making the application (subject to sub-paragraph (5)) of |
| |
an amount equal to the value of the goods, or to a proportion of it |
| |
| |
(b) | payment, at prescribed times (on making the application or later), of |
| |
any amounts prescribed in respect of the enforcement agent’s costs |
| 15 |
| |
(5) | If the applicant makes a payment under sub-paragraph (4)(a) but the |
| |
enforcement agent disputes the value of the goods, any underpayment is to |
| |
| |
(a) | determined by reference to an independent valuation carried out in |
| 20 |
accordance with regulations, and |
| |
(b) | paid at the prescribed time. |
| |
(6) | If sub-paragraph (3) does not apply the court may still direct the |
| |
enforcement agent to sell or dispose of the goods before the court determines |
| |
the applicant’s claim, if it considers it appropriate. |
| 25 |
(7) | If the court makes a direction under sub-paragraph (3) or (6)— |
| |
(a) | paragraphs 38 to 49, and regulations under them, apply subject to |
| |
any modification directed by the court; |
| |
(b) | the enforcement agent must pay the proceeds of sale or disposal into |
| |
| 30 |
(8) | In this paragraph “the court”, subject to rules of court, means— |
| |
(a) | the High Court, in relation to an enforcement power under a writ of |
| |
| |
(b) | a county court, in relation to an enforcement power under a warrant |
| |
issued by a county court; |
| 35 |
(c) | in any other case, the High Court or a county court. |
| |
Application to assignee or transferee |
| |
61 (1) | This Schedule applies as follows where an interest of the debtor’s in goods |
| |
is assigned or transferred while the property in the goods is bound for the |
| |
purposes of an enforcement power, and the enforcement agent— |
| 40 |
(a) | knows that the assignee or transferee has an interest in the particular |
| |
| |
(b) | would know, if he made reasonable enquiries. |
| |
(2) | These apply as if the assignee or transferee were a co-owner of the goods |
| |
| 45 |
|
| |
|
| |
|
(a) | paragraph 34 (inventory); |
| |
(b) | paragraph 36 (valuation); |
| |
(c) | paragraphs 39 to 41 (sale); |
| |
(d) | paragraph 59(6) (remedies after payment of amount outstanding). |
| |
(3) | If the interest of the assignee or transferee was acquired in good faith, for |
| 5 |
valuable consideration and without notice, paragraph 50(6) applies as if “co- |
| |
owner” included the assignee or transferee. |
| |
(4) | If the interest of the assignee or transferee was not acquired in good faith, for |
| |
valuable consideration and without notice, the enforcement agent must pay |
| |
any surplus under paragraph 50(5) to the assignee or transferee and to the |
| 10 |
debtor (if he retains an interest). |
| |
(5) | If the surplus is payable to two or more persons it must be paid in shares |
| |
proportionate to their interests. |
| |
(6) | Paragraph 5(3) and (4) (“good faith” and “notice”) apply for the purposes of |
| |
| 15 |
| |
62 (1) | Regulations may make provision for the recovery by any person from the |
| |
debtor of amounts in respect of costs of enforcement-related services. |
| |
(2) | The regulations may provide for recovery to be out of proceeds or otherwise. |
| |
(3) | The amount recoverable under the regulations in any case is to be |
| 20 |
determined by or under the regulations. |
| |
(4) | The regulations may in particular provide for the amount, if disputed, to be |
| |
assessed in accordance with rules of court. |
| |
(5) | “Enforcement-related services” means anything done under or in |
| |
connection with an enforcement power, or in connection with obtaining an |
| 25 |
enforcement power, or any services used for the purposes of a provision of |
| |
this Schedule or regulations under it. |
| |
Limitation of liability for sale or payment of proceeds |
| |
63 (1) | Any liability of an enforcement agent or related party to a lawful claimant |
| |
for the sale of controlled goods is excluded except in two cases. |
| 30 |
(2) | The first exception is where at the time of the sale the enforcement agent had |
| |
notice that the goods were not the debtor’s, or not his alone. |
| |
(3) | The second exception is where before sale the lawful claimant had made an |
| |
application to the court claiming an interest in the goods. |
| |
(4) | A lawful claimant in relation to goods is a person who has an interest in |
| 35 |
them at the time of sale, other than an interest that was assigned or |
| |
transferred to him while the property in the goods was bound for the |
| |
purposes of the enforcement power. |
| |
64 (1) | Any liability of an enforcement agent or related party to a lawful claimant |
| |
for paying over proceeds is excluded except in two cases. |
| 40 |
(2) | The first exception is where at the time of the payment he had notice that the |
| |
goods were not the debtor’s, or not his alone. |
| |
|
| |
|
| |
|
(3) | The second exception is where before that time the lawful claimant had |
| |
made an application to the court claiming an interest in the goods. |
| |
(4) | A lawful claimant in relation to goods is a person who has an interest in |
| |
them at the time of sale. |
| |
65 (1) | Paragraphs 63 and 64— |
| 5 |
(a) | do not affect the liability of a person other than the enforcement |
| |
agent or a related party; |
| |
(b) | do not apply to the creditor if he is the enforcement agent. |
| |
(2) | The following apply for the purposes of those paragraphs. |
| |
(3) | The enforcement agent or a related party has notice of something if he would |
| 10 |
have found it out if he had made reasonable enquiries. |
| |
(4) | A related party is any person who acts in exercise of an enforcement power, |
| |
other than the creditor or enforcement agent. |
| |
(5) | “The court” has the same meaning as in paragraph 60. |
| |
Remedies available to the debtor |
| 15 |
66 (1) | This paragraph applies where an enforcement agent— |
| |
(a) | breaches a provision of this Schedule, or |
| |
(b) | acts under an enforcement power under a writ, warrant, liability |
| |
order or other instrument that is defective. |
| |
(2) | The breach or defect does not make the enforcement agent, or a person he is |
| 20 |
acting for, a trespasser. |
| |
(3) | But the debtor may bring proceedings under this paragraph. |
| |
(4) | Subject to rules of court, the proceedings may be brought— |
| |
(a) | in the High Court, in relation to an enforcement power under a writ |
| |
| 25 |
(b) | in a county court, in relation to an enforcement power under a |
| |
warrant issued by a county court; |
| |
(c) | in any other case, in the High Court or a county court. |
| |
(5) | In the proceedings the court may— |
| |
(a) | order goods to be returned to the debtor; |
| 30 |
(b) | order the enforcement agent or a related party to pay damages in |
| |
respect of loss suffered by the debtor as a result of the breach or of |
| |
anything done under the defective instrument. |
| |
(6) | A related party is either of the following (if different from the enforcement |
| |
| 35 |
(a) | the person on whom the enforcement power is conferred, |
| |
| |
(7) | Sub-paragraph (5) is without prejudice to any other powers of the court. |
| |
(8) | Sub-paragraph (5)(b) does not apply where the enforcement agent acted in |
| |
| 40 |
(a) | that he was not breaching a provision of this Schedule, or |
| |
(b) | (as the case may be) that the instrument was not defective. |
| |
|
| |
|
| |
|
(9) | This paragraph is subject to paragraph 59 in the case of a breach of |
| |
| |
Remedies available to the creditor |
| |
67 | If a debtor wrongfully interferes with controlled goods and the creditor |
| |
suffers loss as a result, the creditor may bring a claim against the debtor in |
| 5 |
| |
| |
68 (1) | A person is guilty of an offence if he intentionally obstructs a person |
| |
lawfully acting as an enforcement agent. |
| |
(2) | A person is guilty of an offence if he intentionally interferes with controlled |
| 10 |
goods without lawful excuse. |
| |
(3) | A person guilty of an offence under this paragraph is liable on summary |
| |
| |
(a) | imprisonment for a term not exceeding 51 weeks, or |
| |
(b) | a fine not exceeding level 4 on the standard scale, or |
| 15 |
| |
(4) | In relation to an offence committed before the commencement of section |
| |
281(5) of the Criminal Justice Act 2003 (c. 44), the reference in sub-paragraph |
| |
(2)(a) to 51 weeks is to be read as a reference to 6 months. |
| |
Relation to insolvency provisions |
| 20 |
69 | This Schedule is subject to sections 183, 184 and 346 of the Insolvency Act |
| |
| |
| |
| |
Taking control of goods: amendments |
| |
Inclosure Act 1773 (c. 81) |
| 25 |
1 | The Inclosure Act 1773 is amended as follows. |
| |
2 (1) | Section 4 (expenses how to be defrayed) is amended as follows. |
| |
(2) | For “levied by distress and sale of the goods and chattels of” substitute |
| |
“recovered, by using the procedure in Schedule 12 to the Tribunals, Courts |
| |
and Enforcement Act 2007 (taking control of goods), from”. |
| 30 |
(3) | Omit the words from “rendering” to the end. |
| |
3 (1) | Section 16 (assessments to be levied for the improving of wastes where there |
| |
are stinted commons) is amended as follows. |
| |
(2) | For “levied by distress and sale of the goods and chattels of” substitute |
| |
“recovered, by using the procedure in Schedule 12 to the Tribunals, Courts |
| 35 |
and Enforcement Act 2007 (taking control of goods), from”. |
| |
(3) | Omit the words from “rendering” to the end. |
| |
|
| |
|