Wilson v South Kesteven District Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,Lord Justice Schiemann,Lord Justice Mummery |
| Judgment Date | 13 July 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0713-12 |
| Date | 13 July 2000 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/99/0408 & B2/99/0609 |
[2000] EWCA Civ J0713-12
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM H.H. JULIAN HALL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Simon Brown
Lord Justice Schiemann and
Lord Justice Mummery
Case No: B2/99/0408 & B2/99/0609
Mr G. Pulman QC & Mr S. Livesey (instructed by Graham J Wood of 16�18 Station Road, Kettering, Northants NN15 7HH, solicitors)for the Respondent
Mr N. Pleming QC & Miss M. Macpherson (instructed by Hextall Erskine & Co of 28 Leman Street London E1 8ER, solicitors) for the Appellant
If ever clarity were needed in the law it is surely with regard to the seizure and sale of a debtor's goods. What are the powers and obligations of the bailiff? What rights has the debtor? The answers to such questions should be simple and readily accessible. Yet the process of levying distress is an arcane one and the present law, as noted in the Law Commission's Working Paper (1986)(No. 97) on Distress for Rent, p.145, para. 5.1(1), "is riddled with inconsistencies, uncertainties, anomalies and archaisms".
The present appeal centres upon regulation 14 of The Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989 (the Regulations) and schedule 3 to those Regulations, and raises a number of issues of obvious importance. It is convenient at once to set out the relevant provisions and this I shall do by reference to their terms following minor amendment in 1990; the particular distraint with which this appeal is concerned occurred in September 1992 before certain further amendments were made in 1993.
"14 (1) Where a liability order has been made, the authority which applied for the order may levy the appropriate amount by distress and sale of the goods of the debtor against whom the order was made.
(2) The appropriate amount for the purposes of paragraph (1) is the aggregate of -
(a) an amount equal to any outstanding sum which is or forms part of the amount in respect of which the liability order was made, and
(b) a sum determined in accordance with Schedule 3 in respect of charges connected with the distress
(3) If, before any goods are seized, the appropriate amount (including charges arising up to the time of the payment or tender) is paid or tendered to the authority, the authority shall accept the amount and the levy shall not be proceeded with.
(4) Where an authority has seized goods of the debtor in pursuance of the distress, but before sale of those goods the appropriate amount (including charges arising up to the time of the payment or tender) is paid or tendered to the authority, the authority shall accept the amount, the sale shall not be proceeded with and the goods shall be made available for collection by the debtor.
(5) The person levying distress on behalf of an authority shall carry with him the written authorisation of the authority, which he shall show to the debtor if so requested; and he shall hand to the debtor or leave at the premises where the distress is levied a copy of this regulation and Schedule 3 and a memorandum setting out the appropriate amount, and shall hand to the debtor a copy of any close or walking possession agreement entered into.
�
(7) A distress shall not be deemed unlawful on account of any defect or want of form in the liability order, and no person making a distress shall be deemed a trespasser on that account; and no person making a distress shall be deemed a trespasser from the beginning on account of any subsequent irregularity in making the distress, but a person sustaining special damage by reason of the subsequent irregularity may recover full satisfaction for the special damage (and no more) by proceedings in trespass or otherwise."
(I omit paragraphs (6), (8) and (9) which are immaterial to this appeal).
SCHEDULE 3
CHARGES CONNECTED WITH DISTRESS
1. The sum in respect of charges connected with the distress which may be aggregated under regulation 14(2) shall be as set out in the following Table -
(1)
Matter connected with distress
A For making a visit to premises with a view to levying distress (whether the levy is made or not):
B For levying distress:
C For the removal and storage of goods for the purposes of sale:
D For the possession of goods as described in paragraph 2(3) -
(i) for close possession (the man in possession to provide his own board):
(ii) for walking possession:
E For appraisement of an item distrained, at the request in writing of the debtor:
F For other expenses of, and commission on, a sale by auction -
(i) where the sale is held on the auctioneer's premises:
(ii) where the sale is held on the debtor's premises:
G For other expenses incurred in connection with a proposed sale where there is no buyer in relation to it:
(2)
Charge
Reasonable costs and fees incurred, but not exceeding an amount which, when aggregated with charges under this head for any previous visits made with a view to levying distress in relation to an amount in respect of which the liability order concerned was made, is equal to the relevant amount calculated under paragraph 2(1) with respect to the visit.
An amount (if any) which, when aggregated with charges under head A for any visits made with a view to levying distress in relation to an amount in respect of which the liability order concerned was made, is equal to the relevant amount calculated under paragraph 2(1) with respect to the levy.
Reasonable costs and fees incurred.
�4.50 per day
45p per day
Reasonable fees and expenses of the broker appraising.
The auctioneer's commission fee and out-of-pocket expenses (but not exceeding in aggregate 15 per cent. of the sum realised), together with reasonable costs and fees incurred in respect of advertising.
The auctioneer's commission fee (but not exceeding 7 1/2 per cent of the sum realised), together with the auctioneer's out-of-pocket expenses and reasonable costs and fees incurred in respect of advertising.
Reasonable costs and fees incurred.
Paragraph 2(1) makes provision for calculating a scale fee for heads A and B. Paragraph 2(3) describes what is meant in these regulations (see regulation 14(5) and head D) by close possession and walking possession. Paragraph 3 provides for taxation of the charges in the event of a dispute, such taxation to be carried out by the local county court registrar who may give such directions as to the costs of the taxation as he thinks fit, any costs payable by the debtor to be added to the "appropriate amount" under regulation 14(2).
The appeal is brought by the appellant rating authority against the order of Judge Julian Hall made in the Peterborough County Court on 18 March 1999, entering judgment on the issue of liability in favour of the respondent debtor for damages to be assessed for "unlawful distress starting on 22 September 1992". Ordinarily at this stage of the judgment I would set out at least the basic facts of the case and the trial judge's main conclusions. However, for reasons which will eventually become clear this would, I believe, tend to cloud rather than illuminate the real issues arising. Instead, therefore, I turn at once to these, different though they are from those regarded as determinative below. As I see it, the critical issues are these:
1. Is a debtor entitled to halt the distraint process by payment or tender at any time or only at either of two specific stages during the process, respectively before seizure and before sale?
2. What should be stated in the memorandum required by regulation 14(5) and when should it be handed over to the debtor or left at the premises?
3. What is the consequence of completing the distraint process without having complied properly with the requirements of regulation 14(5)?
Issue 1 �When may the process be halted?
This dispute hitherto has been litigated on the basis that the debtor is entitled to halt the distraint process by an appropriate payment or tender at any time. The bailiffs advanced no contrary contention and, indeed, no one questioned the correctness of that assumption until we ourselves questioned it in the course of the appellant's submissions. Nor, surprisingly, did Mr Pleming QC appear avid to encourage the court in its doubts. And yet I have come to the clear conclusion that the assumption was wrong and that, so far from the debtor having a continuous opportunity to end the process, that opportunity arises only (a) before any goods are seized (regulation 14(3)), and (b) after seizure and before sale (regulation 14(4)). There is, in short, no opportunity to redeem the goods afforded during the period of seizure itself.
We are, as it seems to me, driven to that conclusion both by the scheme and language of the regulation and by consideration of the practicalities. As to the former, it is evident that paragraphs (3) and (4) of the regulation are directed at two distinct stages. Paragraph (3) in terms applies only to the period "before any goods are seized" whilst paragraph (4) postulates that the relevant goods have been seized and in terms applies to the next stage, "before sale". Had it been intended to provide for payment or tender to halt the actual process of seizure, there would have been no need for two separate paragraphs framed as they are; rather a continuum of opportunity would have been reflected in a single paragraph allowing for payment or tender at any time before sale. And consider the practicalities. The...
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