Distress – Bailiff distraining in respect of arrears of rent – Whether bailliff having right at common law to effect forcible entry – Law of Distress Act 1737 – Judge finding forcible entry lawful – Tenants’ appeal allowed
Premises at 9b Hatton Square, Baldwin Gardens, London EC1, were occupied by the plaintiff tenants for the purposes of their business. The plaintiffs’ landlord and the landlord’s agent, the first and second defendants, instructed a certificated private bailiff, the third defendant, to distrain on goods at the premises to recover arrears of rent. The bailiff entered the demised premises with the consent of the tenants. At his request the tenants entered into a walking possession agreement entitling the bailiff to remove the goods at any time after the specified date for payment. The arrears were not paid by the due date and the bailiff went to the demised premises to remove the goods. The premises were unattended and locked. The bailiff removed the lock and the goods and resecured the premises. In proceedings brought by the tenants the judge decided that the bailiff was entitled to act as he had and dismissed the tenants claim for damages.
The tenants appealed contending, inter alia, that, except in the limited circumstances of forcible ejection or exclusion which would justify the use by the bailiff of force to retake the goods he had already impounded, there was no right of forcible entry. The bailiff contended that once the goods had been impounded following the initial entry, so that they were in the custody of the law, then, so long as the distress had not been abandoned, the bailiff on his return finding the door to be locked was entitled, without more, to force an entry. Hearing the appeal together with an associated appeal McLeod v Butterwick [1996] 1 WLR 995, which concerned a sherriff executing a writ of fieri facias, the Court of Appeal considered whether a bailiff distraining for rent in walking possession of the goods was entitled forcibly to re-enter premises in order to remove the goods for the purposes of sale.
Held The appeal was dismissed.
1. There was no unconditional right to re-enter by force at common law. The bailiff had therefore had no right to re-enter the tenants’ premises without consent, and the walking possession agreement had conferred on the bailiff no such authority. Consideration of the judgments of the court in Bannister v Hyde (1860) 2 E&E 627 led to a rejection of the bailiff’s submission. Section 7 of the Law of Distress Act 1737 conferred a right of forcible entry in the case of goods fraudulently concealed, but there was no similar provision in section 10, which provided that goods might be impounded on a tenant’s premises. A bailiff was not entitled to re-enter by force except where, having gained entry peaceably, he was expelled by force or had been deliberately excluded by the tenant. The judge had erred in deciding otherwise, but since, on the facts, there had been no deliberate exclusion, the bailiff’s submissions failed.
2. In the circumstances, the tenants had failed to make out any special damage for the purpose of section 19 of the 1737 Act, and it was established in those circumstances that the bailiff could not be liable for nominal damages either: see Rogers v Parker (1856) 18 CB 112. Although the judge had erred in respect of the lawfulness of the re-entry, on the facts of the case and applying the provisions of section 19, no recoverable damage had been made out.
Kenneth Hamer (instructed by Desor & Co, of Hayes) appeared for the appellants; Andrew Westwood (instructed by Bude Nathan Iwanier) appeared for the respondents.
