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Return of goods orders - understanding your enforcement options

July 2015

Return of goods orders - understanding your enforcement options

Increasing numbers of customers are refusing to allow creditors’ recovery agents to collect goods subject to a ‘return of goods order’ on the basis that there is a risk of trespass or damage despite the fact that in most cases the goods in question are clearly visible and there is no evident risk of either.

Creditors in this position often instruct recovery agents to attempt multiple site visits, which inevitably results in delays, as the time taken to secure recovery is pro-longed, and often unsuccessful.  Consequently, the recovery agent’s costs will escalate and in some cases the re-sale value of the goods in question can depreciate.

So, where does this leave creditors?

Fortunately, a return of goods order is not the end of the line and there are a number of alternative enforcement options available to creditors who find themselves in this situation.  

Attachment of Penal Notice

This form of recourse is most appropriate when a customer has admitted to having the goods in their possession, or when the customer is wilfully ignoring the return of goods order by failing to disclose the location of the goods.  A recovery agent will be required to attach evidence to any application, usually in the form of a report stating that they have unsuccessfully attempted to recover the goods from the customer and confirming the location of the goods. 

If granted, the following notice, or words to such effect are added to the return of goods order:

“If you the within-named [ ] do not comply with this order you may be held to be in contempt of court and imprisoned or fined, or your assets may be seized.”

Any order (with newly attached penal notice) must be personally served on the customer and often stimulates a far more co-operative approach from the customer allowing the goods to be recovered. Where the customer continues to fail to deliver up the goods, the creditor can then apply to the court for an order for committal and/or for a heavy fine to be levied against the customer on the grounds of being in contempt of court.  

Creditors should however take legal advice before seeking a penal notice. The courts will usually reserve such orders to cases where the sanction is both proportionate and reasonable in the circumstances and will be reluctant to deprive a person of their liberty without just cause, or less dramatic options have been exhausted.  As such committal itself will remain a last resort

Writ of Delivery

This is another option which is usually only deemed appropriate when the goods in question have been clearly sighted and the customer has failed to comply with the return of goods order.

Proceeding with this option requires payment of a fee, currently £60.00, paid to the High Court Enforcement Officer, who will convert the return of goods order into a sealed Writ of Delivery.

Once a Writ of Delivery has been obtained, the creditor’s agent will be granted more extensive rights of enforcement compared to the original return of goods order.  The Writ will allow the agent to access (on sight of the goods) any lock-up, land or garage (provided it is not attached to a dwelling house), and may use reasonable force in order to seize the goods.

This enforcement option is effective when the goods have been sighted prior to obtaining the Writ.  To avoid goods being intentionally moved, it is prudent to ask the recovery agent to exercise discretion when initially sighting the goods, so as to avoid placing the customer on notice.  A Writ of Delivery should not be used to access property on a ‘fishing expedition’ or an attempt to locate the goods, because that may give rise to allegations and claims of trespass or damage by the property owner.

Should an agent have any issues in recovering the goods using a Writ of Delivery, a Police presence to assist the agent can be requested - an option not available when seeking to recover goods under a return of goods order alone.  If requested in such circumstances the police have an obligation to attend the property in order to prevent a breach of the peace whilst the goods are recovered under the Writ.  In cases where the customer may be using dogs to prevent access, the Police can be asked to deploy appropriate resources to ensure safe access to the property.

A Writ of Delivery may be enforced for up to 12 months after sealing and may take at least ten days to obtain.  Whilst the timescale to obtain the Writ may present an opportunity for the customer to move the goods (especially in the case of moveable goods such as vehicles), because the Writ remains enforceable for a full year, the creditor and his agent have further opportunity to continue to trace the location of the goods in order to enforce.    

In summary

The courts do not generally tolerate persons who fail to comply with court orders. Whilst neither a Penal Notice or a Writ of Delivery are guaranteed ways to recover goods, they represent additional options which can be employed by creditors facing increased challenges in enforcing return of goods orders.

 

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