• PART 8 PART 8 — Taking Control Of Goods (FEES)

    • 53. Application of Part 8

      This Part applies when an enforcement agent uses the Schedule 1 procedure.

    • 54. Recovery of fees for enforcement-related services from the debtor

      (1) The enforcement agent may recover from the debtor the fees indicated in the Schedule to these Rules in accordance with this rule and rules 60, 61, 62, 65 and 66, by reference to the stage, or stages of enforcement for which enforcement-related services have been supplied.
      (2) The fees referred to in paragraph (1) may be recovered out of proceeds.
      (3) The enforcement agent may recover under this regulation the whole fee provided in the Schedule to these Rules for a stage where the amount outstanding is paid after the commencement, but before the completion, of that stage.
      (4) For the purposes of this rule, the relevant stage of enforcement is determined according to rule 55.
      (5) Where —
      (a) the enforcement agent and the debtor enter into a controlled goods agreement which the debtor does not breach, only the first enforcement stage fee may be recovered from the debtor; or
      (b) the enforcement agent and the debtor —
      (i) enter into a controlled goods agreement which the debtor breaches; or
      (ii) do not enter into a controlled goods agreement,
      both the first enforcement stage and second enforcement stage fees may be recovered from the debtor, and the first enforcement stage fee is recoverable where sub-paragraph (ii) applies notwithstanding that the first enforcement stage did not apply.

    • 55. Stages of enforcement for which fees may be recovered

      (1) The relevant stages of enforcement under an enforcement power are as follows —
      (a) the compliance stage, which comprises all activities relating to enforcement from the receipt by the enforcement agent of instructions to use that procedure in relation to a sum to be recovered up to but not including the commencement of the first enforcement stage, or, where sub-paragraph (c)(ii) applies, the commencement of the second enforcement stage;
      (b) where the enforcement agent and the debtor enter into a controlled goods agreement, the first enforcement stage, which comprises all activities relating to enforcement from the first attendance at the premises in relation to the instructions until the agreement is completed or breached;
      (c) the second enforcement stage, which comprises —
      (i) where the enforcement agent and the debtor enter into a controlled goods agreement but the debtor breaches that agreement, all activities relating to enforcement from the time at which the debtor breaches the agreement up to but not including the commencement of the sale or disposal stage;
      (ii) where the enforcement agent and the debtor do not enter into a controlled goods agreement, all activities relating to enforcement from the first attendance at the premises in relation to the instructions up to but not including the commencement of the sale or disposal stage;
      (d) the sale or disposal stage, which comprises all activities relating to enforcement from the first attendance at the property for the purpose of transporting goods to the place of sale, or from commencing preparation for sale if the sale is to be held on the premises, until the completion of the sale or disposal (including application of the proceeds and provision of the information required by rule 63).
      (2) Where the goods against which enforcement is sought are securities, the sale or disposal stage commences with the provision of a notice of disposal in accordance with paragraph 30(6) of Schedule 1.

    • 56. Calculation of fees by reference to value sum sought to be recovered

      The percentage fee or fees are to be calculated by multiplying the amount of the sum to be recovered which exceeds US$2,000 by the percentage indicated in the relevant column of the table in the Schedule; in the total amount of the fee so calculated, any fraction of US$1 is to be reckoned as US$1, but any fraction of a cent is to be disregarded.

    • 57. Disbursements recoverable from the debtor

      (1) The enforcement agent may recover disbursements from the debtor only in accordance with this rule and rules 58, 59 and 60.
      (2) The following disbursements are recoverable provided that they are reasonably and actually incurred —
      (a) the cost of storing goods which have been taken into control and removed from the premises or public place;
      (b) the cost of hiring a locksmith to gain access to premises when using reasonable force to enter them in accordance with Schedule 1, and to secure them thereafter;
      (c) Court fees in relation to any applications made by the enforcement agent in relation to the enforcement power which are granted.
      (3) The disbursements referred to in this rule and rules 58 and 59 may be recovered out of proceeds.

    • 58. Disbursements recoverable from the debtor in relation to sale of goods by auction or by private sale

      (1) The enforcement agent may recover disbursements related to the sale of the goods from the debtor in accordance with this rule and rules 59 and 60.
      (2) Where the sale is held on premises provided by the auctioneer conducting the sale, the enforcement agent may recover from the debtor —
      (a) a sum in respect of the auctioneer's commission not exceeding 15% of the sum realised by the sale of the goods;
      (b) the auctioneer's out of pocket expenses; and
      (c) reasonable disbursements incurred in respect of advertising the sale.
      (3) Where the sale is held on other premises in accordance with subordinate legislation made under paragraph 27 of Schedule 1, the enforcement agent may recover from the debtor the sums and disbursements referred to in paragraph (2), except that the sum referred to in paragraph (2)(a) may not exceed 7.5% of the sum realised by the sale of the goods.
      (4) Where the goods are —
      (a) auctioned by way of an internet auction; or
      (b) sold other than by auction,

      the enforcement agent may recover from the debtor 7.5% of the sum realised by the sale of the goods.

    • 59. Exceptional disbursements

      (1) Upon application by the enforcement agent with the consent of the creditor in accordance with rules of court, the Court may order that the enforcement agent may recover from the debtor exceptional disbursements associated with the use of the Schedule 1 procedure which are not otherwise recoverable under these Rules.
      (2) The Court may not make an order under paragraph (1) unless satisfied that the disbursements to which it relates are necessary for effective enforcement of the sum to be recovered, having regard to all the circumstances including —
      (a) the amount of that sum; and
      (b) the nature and value of the goods which have been taken into control, or which it is sought to take into control.

    • 60. More than one enforcement power available against the same debtor

      (1) This rule applies for the purpose of calculating the fees and disbursements payable to the enforcement agent in accordance with rules 54, 57, 58 and 59 in a case where —
      (a) the enforcement agent receives instructions to use the procedure under Schedule 1 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 of goods in relation to all such enforcement powers on the same occasion; and
      (b) selling or disposing of all goods so taken into control on the same occasion,
      except where it is impracticable to do so.
      (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;
      (b) the amount in relation to which the percentage fee for each stage, if any, is to be calculated is the total amount of the sums to be recovered under all enforcement powers to which paragraph (1) applies.
      (5) Where this rule applies, the enforcement agent must, as far as practicable, minimise the disbursements recoverable from the debtor under these Rules by dealing with the goods taken into control pursuant to the instructions together and on as few occasions as possible.

    • 61. Recovery of fees from vulnerable debtors

      Where the debtor is a vulnerable person, the fee or fees due for the enforcement stage (or, where rule 55 applies, the first, or first and second, enforcement stages as appropriate) and any disbursements related to that stage (or stages) are not recoverable unless the enforcement agent has, before proceeding to remove goods which have been taken into control, given the debtor an adequate opportunity to get assistance and advice in relation to the exercise of the enforcement power.

    • 62. Application of proceeds where less than the amount outstanding

      (1) Subject to paragraph 31(6) of Schedule 1, when the proceeds from the exercise of an enforcement power are less than the amount outstanding, they must be applied in accordance with this rule.
      (2) Where the goods are sold or disposed of at a public auction (other than by internet auction), the proceeds must be applied first in payment of the auctioneer's fees calculated in accordance with rule 58(2) or (3) as appropriate.
      (3) Following the payment at paragraph (2), the enforcement agent may then recover the compliance fee.
      (4) Subject to paragraph (5), following any payment due by virtue of paragraphs (2) and (3), the proceeds must be applied pro rata in payment of —
      (a) the sum to be recovered; and
      (b) any remaining amounts recoverable in respect of fees and disbursements payable to the enforcement agent in accordance with these Rules.
      (5) Where the same legal person is both the creditor and the enforcement agent, paragraph (4) does not apply and the proceeds must be applied in payment of the amount referred to in paragraph (4)(b) before payment of the amount at paragraph (4)(a).
      (6) In paragraphs (4) and (5), references to the proceeds are to the proceeds after deduction of the sums, if any, to which paragraphs (2) and (3) relate.

    • 63. Provision of information to debtor and co-owner by enforcement agent

      (1) As soon as possible after sale or disposal of the goods, the enforcement agent must provide the debtor and any co-owner of goods of whom the enforcement agent is aware with —
      (a) an itemised list of the goods sold or otherwise disposed of;
      (b) a statement of —
      (i) the sum received in relation to each item;
      (ii) the proceeds;
      (iii) the application of the proceeds;
      (iv) the disbursements recoverable under these Rules and incurred in relation to the goods.
      (2) The enforcement agent must provide the debtor and any co-owner with a copy of all receipts for the disbursements referred to at paragraph (1)(b)(iv), except in relation to disbursements to which rule 58(4) applies.
      (3) Where the debtor pays, or seeks to pay, the amount outstanding at any time after the enforcement agent has incurred disbursements in relation to the enforcement power but before sale or disposal of the goods, the enforcement agent must provide the debtor with —
      (a) a statement of disbursements recoverable in accordance with paragraph (1)(b)(iv);
      (b) any receipts in accordance with paragraph (2);
      (c) a statement of the fixed and percentage fees (if any) charged.

    • 64. Dispute regarding co-owner's share of proceeds

      Upon application in accordance with rules of court by the enforcement agent, the creditor, the debtor or a co-owner of goods, any dispute about the amount of the proceeds payable to that co-owner under paragraph 31(6)(a) of Schedule 1 is to be determined by the Court.

    • 65. Disputes about the amount of fees and disbursements recoverable under Rules

      Upon application in accordance with rules of court, any dispute regarding the amount recoverable under these Rules is to be determined by the Court.

    • 66. Fees and disbursements not recoverable where enforcement process ceases

      (1) The enforcement agent may not recover fees or disbursements from the debtor in relation to any stage of enforcement undertaken at a time when the relevant enforcement power has ceased to be exercisable.
      (2) Paragraph (1) does not apply where the enforcement power ceases to be exercisable because the debtor has paid the amount outstanding or that amount has been recovered from the proceeds or otherwise.
      (3) In a case in which the enforcement agent is instructed by a landlord to exercise CRAR and the Court makes an order under section 133(1) of the Regulations —
      (a) the enforcement agent may not recover fees or disbursements from the debtor where the order is made under section 133(1)(a);
      (b) where the order is made under section 133(1)(b), the enforcement agent may recover fees and disbursements from the debtor in accordance with these Rules only if the Court has made a further order permitting further steps to be taken under CRAR.