Credit Management January February 2020

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HIGH COURT ENFORCEMENT OFFICERS ASSOCIATION VISION ON When it comes to enforcement, not all publicity is good publicity. AUTHOR – Andrew Wilson FCICM NOW that the businesses concerned have decided not to go ahead with further series of Can’t Pay? We’ll Take It Away! and The Sheriffs are Coming, it may be worth looking at whether these reality TV programmes have been a positive or a negative as far as the profession of High Court Enforcement Officer (HCEO) is concerned. As an Association we have been looking at those areas which we believe should be taken into account when considering a Media Policy, which all businesses in the High Court Enforcement world should have. In particular we pose the question, in relation to reality TV of ‘Can you balance Consent under GDPR with Confidentiality under the National Standards?’. I have always answered that one with a ‘No’, as I cannot see how an HCEO’s duty to be even handed between debtor and creditor, inherited from the obligations of Sheriffs under S99 and paragraph 4, Schedule 7 Courts Act 2003, can possibly be achieved by attending on an enforcement of a Writ of Possession or Control, with a camera crew in tow. The balancing act was considered in detail by Mr Justice Arnold in the case of Shakir Ali (1) & Shahida Aslam (2) v. Channel 5 Broadcast Limited (2018 EWHC 298 (Ch)), an enforcement of a Writ of Possession by eviction of a tenant and his family. This pitched interference of an individual’s Article 8 rights (to respect for his private and family life, his home and correspondence) on the grounds that the publicity of the process of eviction contributed to a debate of general interest against the programme maker’s Article 10 rights (to freedom of expression). The outcome was that despite the importance of freedom of expression (‘one of the essential foundations of a democratic society’), in this case, it was outweighed by a reasonable expectation of privacy: Mr Ali and Ms Aslam were awarded damages. AVOIDING PUBLICITY Generally HCEOs (and Sheriffs before them) have avoided publicising their work, most of which is mundane: heads were raised above the parapet during the enforcement of Writs of Possession against environmental and road protest in the 1980s and 1990s, mainly because it suited (and assisted) the Police in showing that they were supporting the civil enforcement process in an even handed way, by ensuring that there was no breach of the criminal law, rather than taking the lead in enforcement which would have blurred the civil/criminal distinction, which is carefully maintained in England and Wales and is seen as a bit of a mystery in other jurisdictions. Now that we have seen, in a rather dramatised way in Can’t Pay? We’ll Take it Away! and rather more realistically in The Sheriffs Are Coming, a bit more detail of what goes on in the enforcement of court judgments, has this been a good thing? On the positive side, it has made the general public a little more aware that there is an enforcement process available to claimants where defendants insist on not complying with court orders. In that respect it has shown that the law can be very effective. The programmes on Channel 5 ran to five series, were very popular and have been exported to other countries and have been used as training guides for those involved in the civil debt recovery process. I know of one senior civil litigation solicitor who enjoyed Can’t Pay? We’ll Take it Away! so much that he carefully recorded every programme for a little light entertainment after a hard day in the office! On the negative side, it has raised unreasonable expectations of litigants in person on the likely success of civil enforcement – generally not much more than 30 percent of instructions received on money judgments result in payment in full. On possessions this is more likely to be 99.9 percent and quite often cases where the County Court was unable to give possession are passed to the High Court for enforcement. From the Association’s point of view, the two TV programmes have tinged the view of MPs and Government Ministers against our platform that we are a safe pair of hands and simply get on with the job in difficult circumstances, without any fuss and deserve to be given more work. So, in my view, there is such a thing as Bad Publicity which can have a negative effect on those exposed to it. Andrew Wilson FCICM is Chairman of the High Court Enforcement Officers Association (HCEOA). Advancing the credit profession / www.cicm.com / January/February 2020 / PAGE 16
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Credit Management January February 2020

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