Despite earlier indications that changes to the system of bailiffs and the Law of Distress were due to be implemented by April 2012, the government has just released a further consultation on their proposed reforms to debt enforcement action by bailiffs (to become known as enforcement agents).  The government's stated aims are to tackle aggressive and unnecessary bailiff activity without compromising proper and effective enforcement.  They seek to update and clarify centuries of archaic law and to combine sensible powers of enforcement with stronger requirements for accountability and professionalism in the industry.

Proposals include legal competency requirements (by legalising the voluntary code of National Standards for Enforcement Agents, as updated in January 2012); mandatory complaints procedures and enhanced regulation (with all bailiffs to be certificated by the court before they can work as an enforcement agent) and a fixed cost regime to ensure fair remuneration of agents without being open to abuse.

The proposals will involve enacting Part 3 of the Tribunal, Courts and Enforcement Act 2007 ("TEC").

For commercial landlords, certain powers due to be removed or curtailed in respect of residential property will be preserved.  For instance, it will still be possible to use reasonable force to enter commercial premises (usually by drilling out a lock) without seeking court authority.  Additionally, although the common law of distress is due to be abolished (by section 71 of the TEC), a power to use the new procedure for 'taking control of goods' (as set out in Schedule 12) without making an application to the court will be preserved for the recovery of arrears of rent for commercial premises.  However, as part of this, there will be a new requirement for the service of a notice before seizing any goods – during which time the tenant may dispose of goods that could otherwise be seized.

The consultation (which is open to all interested parties) closes in May 2012 and the government has indicated that they will issue a response in October 2012.  The response will set out full details of all the proposals that are intended to be taken forwards and will set timings as to when the proposals may be introduced.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 13/03/2012.