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12 Apr 2023

Commercial litigation

Debt Recovery

Can’t pay, they may try to fly it away – can you really seize an aeroplane?

Your out of office is on, your hotels are booked and you are all packed when from nowhere, your flight gets cancelled. You scramble to get new flights and then go to the airline to seek not only the refund you are entitled to, but also compensation for the additional expense incurred. But the airline doesn’t pay up. What do you do?

As you may have seen in the news recently, this very situation happened to customer of Wizz Air, Mr Quirk. Mr Quirk was owed a refund from Wizz Air and obtained a County Court Judgement (CCJ) against the airline, which he sought to enforce through the instruction of bailiffs.  Mr Quirk suggested that had they not paid, he may have been entitled to try to take a plane owned by Wizz Air to seek repayment of the sums owed, totaling £4,500.00 plus other costs.

Whilst it remains a fun idea to take a plane in order to pay a debt, in reality, for the bailiffs in the field, there are many practical considerations that must be kept in mind before such steps can take place.  Unfortunately, it is not as easy as clamping the plane!

We spoke to Jason Wynne-Williams of HCE Group, the largest provider of High Court enforcement services in the country, for his take:

“As a High Court Enforcement Officer (HCEO) we are obliged to issue every debtor with a Notice of Enforcement, providing seven clear days to make payment, prior to enforcement attendances being made.  If, for certain reasons, we know that those seven clear days may jeopardise our chances of success, an urgent application can be made to Court with a request that our notice period is shortened. The shortest timeframe achieved by us is as little as 15 minutes, however, it is important to note that this decision is at the discretion of a Judge.

Conveniently, although prior notices seem to land on the wrong desk, we tend to find that ‘panic’ sets in with these organisations, and our Notice of Enforcement will find a way of landing on the correct desk. In many cases, payment is made without the need for an Enforcement Agent to attend. However, if payment in full is not received within the notice period, then enforcement attendances commence.

You can picture it now – you attend the airport at the height of the summer holidays. A certain airline returns from a sunny European destination and 150 happy holiday makers depart the aircraft. You have a further 150 passengers waiting patiently to board the aircraft ready to embark on their summer holiday. However, suddenly, an Enforcement Agent appears at the gate for a private chat with the airline staff. They explain that they’re there to take control of the aircraft due to non-payment of the High Court Writ, therefore it cannot take off to its intended destination.

The Enforcement Agent boards the aircraft to complete the relevant forms to take control of the aircraft, whilst the boarding gate staff are left to explain to their already disgruntled passengers why they will not be going on holiday just yet. As you can imagine, officials from the debtor company will do everything within their powers to raise payment, to essentially ‘get rid’ of the Enforcement Agents and allow the holidaymakers to be on their way. The last thing they want in this age of social media is for one of their customers to take a video which goes ‘viral’ of Enforcement Agents attending against the airline.

That said, the process isn’t always that ‘glamorous’ or simple. There are countless checks the Enforcement Agent must undertake prior to taking control of a plane, such as whether there is a mortgage against the aircraft.

If the Enforcement Agent was to take control of the aircraft, they must look for a suitable place to store and maintain it until sale. Certain insurances must be in place and as the asset is not your run-of-the-mill Ford Fiesta, suitable sale arrangements must be made. It is highly unlikely that the asset would ever be sold at public auction, as the HCEO has a duty to achieve the best possible price. This would mean yet another application to Court for an Order granting permission to sell the asset via private treaty to a suitable buyer.

We have historically taken control of, and subsequently sold aircraft. However, it is often the threat of removal that prompts payment to clear the High Court Writ.”

As Jason explained, the threat that goods may be removed is often enough to lead to panicked debtors to arrange for payment.  Relatively few cases will lead to goods being removed.  However, if you do find yourself with a debt to pursue and a debtor with a fleet of aircraft, the debt recovery solicitors at Harding Evans would be more than happy to assist!

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