Who shot the sheriff?

PRACTICE POINTS

Andrew Wilson says goodbye to sheriffs and explains the new system of enforcement of judgments in the High Court

The responsibility of sheriffs for the enforcement of High Court writs within their counties came to an end on 1 April 2004 when the provisions of section 99 of The Courts Act 2003 came into force.

The regional monopoly that sheriffs have enjoyed for centuries has been brought to an end.

In future, any High Court enforcement officer (HCEO) will be able to enforce any High Court writ in any part of England and Wales, and will be obliged to enforce any writ in any postal area to which the HCEO has been assigned by the Lord Chancellor.

Therefore, there will be competition between HCEOs but national coverage of all areas will be maintained by the new profession.

The first applications for authorisation have been approved by the Senior Master and Queen's Remembrancer, Robert Turner, on behalf of the Lord Chancellor, which has preserved some connection with the long history of sheriff enforcement.

The Sheriffs Act 1887 is not being repealed, but this change removes the last practical legal responsibility of the High Sheriffs.

Why are sheriffs being reformed now? Reform is part of the enforcement review that took six years to produce the White Paper 'Effective Enforcement' (CM 5744, March 2003), and that aims to regulate the whole of civil enforcement.

A Bailiff (Enforcement Officer) Bill is expected sometime in 2005, which will cover reform of enforcement law (long overdue), regulation of all enforcement agents, involving licensing for all in due course, and improved access to information, which is the secret of modern targeted civil enforcement.

The proposed regulator is the Security Industry Authority, currently occupied with the world of wheel-clampers and bouncers (otherwise known as vehicle immobilisers and door supervisors, respectively).

Sheriffs were invited to lead the reforms, being asked by the Department for Constitutional Affairs to be exemplars for such matters as diversity and to create the first new professional association suitable for accreditation.

The review also found some basic flaws in the old system.

The appointment system of under sheriffs and sheriffs officers, which, although annual, tended to allow appointees to run from year to year (and in some cases from generation to generation) failed to meet modern tests of openness.

Likewise, the monopoly of area allowed poor practice to survive and was a disincentive to expansion and investment.

Finally, the government took the view that it was inappropriate for volunteers in the form of high sheriffs to run the risk of the potential liability that the old system embodied.

And it seemed to dislike the continuing, possibly out of date, connection between ceremonial and debt enforcement.

Are HCEOs just re-branded sheriffs? Not quite in the short term and definitely not in the medium to long term, when newly qualified HCEOs will start coming in to the profession.

The roles of under sheriff and sheriffs officer have been merged and new groupings have been formed.

Continuity was considered vital and therefore those running High Court enforcement businesses were given the opportunity to be part of the new regime, following a detailed authorisation process.

The old Sheriffs Officers Association has been the basis for the new High Court Enforcement Officers Association, but the structure is entirely new and the old sheriff connections are expected to be lost quickly.

The law relating to High Court enforcement has been restated in schedule 7 of the Courts Act and the opportunity has been taken to tidy one or two areas, such as the role of the police in supporting civil enforcement.

The High Court Enforcement Officers Regulations 2004 (400 of 2004) and The Courts Act 2003 (Commencement No.3 & Transitional Provisions) Order 2004 (401 of 2004) provide the rest of the detail.

Those who need to enforce their High Court judgments will have more choice and the new HCEOs will have to be highly responsive to their customers.

There will be fewer offices and fewer part-timers and entrance to the new profession will be open, being based on qualifications for the Institute of Legal Executives.

Individual appointment and responsibility has been retained as a key feature, so standards should be maintained, but there is a possibility that HCEOs will become attached to large bailiff companies that would, in the end, restrict choice.

Who will deal with Civil Court Enforcement after 1 April 2004? The balance between High Court and County Court continues as before with competition between the two being limited to judgments between 600 and 5,000, other than Consumer Credit Act judgments where enforcement remains with County Court Bailiffs (who have no intention of calling themselves enforcement officers at the moment).

The system of 'transfer up' - transferring a County Court judgment to the High Court for enforcement only - continues for the time being, although a variety of HCEOs will now be offering this service.

Enforcement of matters of less than 600 remains in the County Court and for those matters of more than 5,000 enforcement must be transferred to HCEOs (again other than CCA judgments).

Will it be cheaper to enforce in the High Court? Not really.

The fees are similar to the old sheriffs' scale and are in schedule 3 of the regulations.

The lodgement fee of 2.35 disappears but the standard abortive fee of 60 plus VAT is likely to remain.

The writ fee on issue remains at 30 (the last rise was from 20) but there is no court fee on transfer up.

If recovery is in full, the debtor pays all fees.

If recovery is in part only, a proportion of the fees is deducted from the money recovered.

The intention is that HCEOs should compete on service not cost and the government did not want to see standards decline in a price war.

The new system will settle down and probably result in fewer larger firms emerging.

The Bailiff Bill will tackle the real areas of abuse in enforcement by introducing licensing for everyone on the doorstep, if legislative time can be found.

Further access to information, if the civil liberties debate will allow it, will result in less dependence on the blunt instrument of enforcement against goods, which will bring this country a little more into line with Europe.

At some point the balance between High Court and County Court enforcement will be reviewed, but at the moment the new unified administration is more concerned with poor recovery rate of magistrates courts' fines.

Traditionalists will be relieved to hear that some of us will continue as under sheriffs and so be able to dress up in black silk stockings and silver buckled shoes and appear in public carrying wands without getting arrested.

Andrew Wilson is a consultant solicitor to north-west based firm Brabners Chaffe Street, and has been under sheriff of Lancashire since 1977.

He is a newly authorised High Court enforcement officer