Office of Public Sector Information
SCHEDULE 12 continued PART 2 continued
(3) Regulations may in particular make provision for purposes corresponding to those for which provision is made in this Schedule in relation to the disposal of other controlled goods.
(4) The power to make regulations under this paragraph is subject to paragraph 49.
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.
(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;
(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.
(5) Any notice must be given within the permitted period.
(6) Unless extended the permitted period is 12 months beginning with the time of payment.
(7) Any extension must be by agreement in writing between the creditor and debtor before the end of the period.
(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 amount outstanding.
(2) Proceeds are any of these—
(a) proceeds of sale or disposal of controlled goods;
(b) money taken in exercise of the power, if paragraph 37(1) does not apply to it.
(3) The amount outstanding is the sum of these—
(a) the amount of the debt which remains unpaid (or an amount that the 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 be determined in accordance with regulations.
(5) If the proceeds are more than the amount outstanding, the surplus must be paid to the debtor.
(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 proportionate to his interest;
(b) then deal with the rest of the proceeds under sub-paragraphs (1) to (5).
(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.
(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 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.
(7) “The court” has the same meaning as in paragraph 60.
52 Paragraphs 53 and 54 apply to controlled goods other than—
(a) securities;
(b) money to which paragraph 37(1) does not apply.
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 permitted period.
(2) Controlled goods are abandoned if they are unsold after a sale of which notice has been given in accordance with that paragraph.
(3) Regulations may prescribe other circumstances in which controlled goods are abandoned.
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;
(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 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.
55 Paragraphs 56 and 57 apply to securities as controlled goods.
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 permitted period.
(2) Securities are abandoned if they are not disposed of in accordance with a notice of disposal under that paragraph.
(3) Regulations may prescribe other circumstances in which securities are abandoned.
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;
(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.
58 (1) This paragraph applies where the debtor pays the amount outstanding in full—
(a) after the enforcement agent has taken control of goods, and
(b) before they are sold or abandoned.
(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 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.
(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.
(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 party.
(7) In this paragraph, “related party” has the meaning given by paragraph 65(4).
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 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 into court.
(4) The required payments are—
(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 directed by the court;
(b) payment, at prescribed times (on making the application or later), of any amounts prescribed in respect of the enforcement agent’s costs of retaining the goods.
(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 be—
(a) determined by reference to an independent valuation carried out in 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.
(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 court.
(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 the High Court;
(b) a county court, in relation to an enforcement power under a warrant issued by a county court;
(c) in any other case, the High Court or a county court.
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—
(a) knows that the assignee or transferee has an interest in the particular goods, or
(b) would know, if he made reasonable enquiries.
(2) These apply as if the assignee or transferee were a co-owner of the goods with the debtor—
(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 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 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 this paragraph.
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 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 enforcement power, or any services used for the purposes of a provision of this Schedule or regulations under it.
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.
(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 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.
(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—
(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 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.
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 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 of the High Court;
(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;
(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 agent)—
(a) the person on whom the enforcement power is conferred,
(b) the creditor.
(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 the reasonable belief—
(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 paragraph 58(3).
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 respect of the loss.
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 goods without lawful excuse.
(3) A person guilty of an offence under this paragraph is liable on summary conviction to—
(a) imprisonment for a term not exceeding 51 weeks, or
(b) a fine not exceeding level 4 on the standard scale, or
(c) both.
(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 (3)(a) to 51 weeks is to be read as a reference to 6 months.
69 This Schedule is subject to sections 183, 184 and 346 of the Insolvency Act 1986 (c. 45).
Tribunals, Courts and Enforcement Act 2007