CIVEA Guidance Note
Charging at the enforcement stage where an enforcement agent receives multiple
instructions and is exercising more than one enforcement power, but on the same
occasion
1. How and why the issue arises
1.1 It has been argued in some quarters that, where an enforcement officer holds
multiple warrants and is exercising several and different enforcement powers say 5 - in relation to a single debtor, 5 separate enforcement charges can be
made.
*'
1.2 Those who argue, and operate on the basis, that only a single charge can be
made, typically split the single fee on a pro-rata basis between the separate
warrants/enforcement powers. How that is done in practice may vary, but the
principle holds good that only a single charge is made.
1.3 The consultation process which preceded the Tribunals, Courts and
Enforcement Act 2007 resulted in several papers and, as is often the case,
different interpretations of what was intended by Parliament can, and have been,
advanced. That is particularly so when selective passages from the
Government's Response might have been taken out of context. As a result, it is
necessary to look to the Regulatory framework introduced; in particular in this
context, the Taking Control of Goods (Fees) Regulations 2014 (which came into
force on 6.4.2014).
2.
Legal framework
Regulation 11 of the Taking Control of Goods (Fees) Regulations 2014
provides, so far as material:
11(1) This regulation applies for the purpose of calculating the fees and
disbursements payable to the enforcement agent in accordance with
regulations 4, 8, 9, 10 in a case where ~
(a) the enforcement agent receives instructions to use the procedure under
Schedule 12 in relation to the same debtor but in respect of more than one
enforcement power; and
(b) those enforcement powers can reasonably be exercised at the same time.
(2) In paragraph 1(b), "can reasonably be exercised at the same time " means
in particular ~
(a) taking control ofgoods in relation to all such enforcement powers on the
same occasion; ...
(3) The enforcement agent may recover the compliance stage fee in respect of
each enforcement power to which the instructions relate.
(4) Where paragraph (1) applies, the fee recoverable in respect of the
enforcement stage (or stages) and the sale or disposal stage respectively
is to be calculated as follows (a) the fixed fee for each stage may be recovered only once regardless of the
number of enforcement powers to which the instructions relate;
[emphasis added]
(b) the amount in relation to which the percentage fee for each stage, if any,
is to be calculated in the total amount of the sums to be recovered under
all enforcement powers to which paragraph 1 relates.
3. Guidance
3.1 Regulation 11 and, in particular 1 l(4)(a), is clear. Had parliament thought that
multiple charging was permissible where an enforcement agent had received
several instructions, even at separate times and from different sources, and was
using multiple enforcement powers on the same occasion, it would have said so.
It did not. Note, in contra-distinction, that multiple compliance fees are
permissible. It follows that Parliament has drawn a sharp distinction between
compliance and enforcement.
3.2 On a sensible interpretation of Regulation 1 l(4)(a), only a single enforcement
charge is permissible.
3.3 Whilst the Regulations provide that a single charge is permissible where
enforcement powers can reasonably be exercised at the same time, the
circumstances in which it might be unreasonable do so, or where it is
impracticable to take control of goods in relation to all enforcement powers on
the same occasion, will be fact-specific and exceptional. The fact that the
instructions may have been received at different times and from different
sources will not usually make it unreasonable to exercise the powers at the same
time.
3.4 If an enforcement agent contends - for whatever reason - that it is unreasonable
to exercise different enforcement powers at the same time, and therefore seeks
to apply more than one enforcement fee, there will have to be cogent and
compelling evidence so as to justify that position.