With limited enforcement options and a lack of resources, county court bailiffs can only look forward to increased pressures as recession looms, writes Philip Evans. Philip Evans is secretary to the Certificated Bailiffs Association of England and Wales.
Debt recovery is always a sensitive subject, but with a global economic downturn on the horizon and the number of unpaid debts set to rise, it is one which cannot be avoided.
The bailiff plays a vital role, but continues to struggle with bad press. Criticisms have been aimed at inefficiencies on the one hand and heavy-handedness on the other.
During the 1990s recession, the number of summonses issued in county courts rocketed. The system was overwhelmed as more and more creditors resorted to the county courts in order to recover money from debtors.
In the absence of resources to pay for more bailiffs, existing ones fought to complete the volume of work within a reasonable time.
In response, however, the Lord Chancellor's Department (LCD) tightened up procedures, introduced quality checks and set bailiffs higher and higher targets.
Under these new directions, bailiffs were required to prove that they had tried sufficiently hard and exhausted all options open to them in order to recover debts. This included recording the time and day of each visit and the number of visits – a process which increased bureaucracy and loaded pressure on bailiffs, without improving quality of service.
Complaints from creditors about bailiffs' inability to recover sufficient debts grew, in spite of performance figures produced by the LCD which showed a remarkable degree of efficiency.
At the time, the LCD's programme of procedural reform and computerisation was in its infancy, so any aims to streamline the service had not yet come to fruition.
Large companies, responsible for recovering thousands of debts each year, eventually gave up on the courts and refined their own pre-litigation procedures. Telephone collection techniques and collection agencies were preferred to the issuing of summonses.
Many losses were simply written off and the volume of county court work decreased more rapidly than the economy recovered. The work of the county court bailiffs reduced dramatically and, as a result, so did the number of employed bailiffs.
One action planned by the Lord Chancellor may well exacerbate the problems. From April 1999, under Lord Woolf's reforms, only cases that are worth #15,000 or more will be issued in the High Court. Creditors who had previously used the High Court for the fairly routine process of enforcing a judgment against a debtor, will now be forced into the county courts, increasing the burden on county court bailiffs, who already deal with 10 times more warrants than the sheriffs' officers.
And those creditors who took work away from the courts during the last recession may well return, attracted by the LCD's promises of improved enforcement.
The sheriffs' officers who enforce High Court judgments will also be affected. When the reforms come into effect next April, all the work that was previously generated by commercial debts over #5,000 will be dealt with in the county courts.
Under current rules, amounts over #1,000 can be transferred if the judgment creditor wishes, but most do not. Creditors who start their proceedings in the county court are generally happy to continue instructing the county court bailiffs.
Presumably the sheriffs' officers are not going to roll over, but however streamlined and aggressively they market themselves, it is unlikely they will be able to maintain their present level of work. Some bailiwicks may become too small to be viable and enforcement in remote areas will be a rarity.
While much of the criticism levelled at county court bailiffs is over their inefficiency, most of the criticism against private bailiffs concerns their robust commitment to success. Both reactions are unfair – but both stem from the same misconception.
People expect bailiffs to make up in stature what they lack in finesse. This is not the reality, but it is the popular image reinforced time and again by the media. Creditors want these persuasive operators to put the pressure on and complain when the county court bailiffs do not do things quite that way.
Meanwhile, debtors cry foul when bailiffs proactively take steps to recover the debt, hoping to find a loophole through which to escape payment.
The Government has given ready credibility to the criticisms, but has overlooked the relative expediency of regulating bailiffs by effective licensing and strengthening the professional bodies which are only too willing to police the profession.
Instead, it has pushed both good and bad bailiffs into a financial pinch. Last year, the Department of the Environment, Transport and the Regions (DETR), which regulates the enforcement of local tax, tried reducing enforcement fees below the level of the costs incurred. But, at the same time, the DETR turned a blind eye to the fact that most local authorities will not pay a private bailiff when enforcement action is unsuccessful.
Earlier this year, the LCD was persuaded to increase the fees for enforcing decriminalised parking penalties, but it did so without regard to actual rises in costs. The LCD recently issued a consultation paper to strengthen the procedures for certificating a bailiff under the Distress for Rent Rules 1988, and will only result in extra expense for bailiffs.
The European Union is seeking to streamline and promote the cross-border enforcement of debt, but bailiffs in England and Wales lack the range of enforcement powers of European huissiers, for example, who can make a garnishee order against a bank account, or put an attachment of earnings order in place.
These problems will compound in a recession and the need to review bailiff law will rapidly climb the LCD's list of priorities. However, faced with growing discontent with county court bailiffs, a shrivelled shrievalty and private sector bailiffs who the media will not allow anyone to trust, the Government has left itself few options.