Khazanchi & another v Faircharm Investments Ltd & another, Court of Appeal - Civil Division, March 17, 1998, [1998] 1 WLR 1603,[1998] 2 All ER 901,[1998] EWCA Civ 471

 

This case concerned the rights of enforcement agents with valid pre-existing levies to force re-entry to premises for the purposes of removal.

In the case of Khazanchi the bailiff enforcing rent arrears forced re-entry when both of the tenants were absent from their trade premises on business purposes

Judgment of Morritt LJ:

"1) These appeals raise a common question of some general importance as to the powers of a bailiff distraining for rent or a sheriff executing a writ of fieri facias forcibly to re-enter the premises in which the relevant goods are kept for the purpose of removing them. It is not in dispute that entry for the purpose of effecting the initial seizure may only he made with the consent of the occupant or other person in possession of the premises. The question is whether in any and, if so, what circumstances the bailiff or the sheriff in walking-possession of the goods is entitled forcibly and without the consent of the occupant or other person in possession of the premises to re-enter in order to remove the goods for the purposes of sale.

4) Though there are similarities between the position of a bailiff and a sheriff their respective legal rights and obligations are not the same. Thus, it is necessary to consider the two cases separately. Equally it is helpful to test the apparent position of the one against that of the other. For that reason I propose to consider the position of the bailiff and the sheriff separately, but in respect of the common question I have identified, before considering the other questions which arise in and the outcome of each appeal.

Distress for rent

5) Though the remedy of distress is available for liabilities other than rent I confine my comments to the remedy as incident to a demise of land for the recovery of rent. The process consists of three stages, namely, entry into the premises, seizure of the goods and securing or impounding the goods. Originally goods so seized might only be impounded in the local pound to which the distrainor was obliged to take them. Further, the goods there impounded might only be detained until the outstanding rent was paid.

6) Section 1 of the Distress for Rent Act 1689 amended the law so as to entitle the distrainor to sell the goods so impounded and to recoup the arrears of rent out of the proceeds of sale. Originally the goods had to be appraised before sale but this requirement was abolished by Law of Distress Amendment Act 1888 s.5.

7) Section 10 of the Distress for Rent Act 1737 amended the law by enabling goods to be impounded and, indeed, sold on the premises where they were at the time of seizure.

8) The section contains no express provision as to the right of the distrainor to return to those premises for the purpose of removing the goods for sale elsewhere but provides, in a later passage, that:

"it shall and may be lawful to and for any person or persons whatsoever, to come and go to and from such place or part of the said premises, where any distress for rent shall be impounded and secured as aforesaid, in order to view, appraise, and buy, and also in order to carry off or remove the same, on account of the purchaser thereof ..."

That section may be contrasted with section 7 which authorises a landlord seeking to levy a distress and those authorised by him in the daytime to break open and enter a house or other building in which he suspects that there are goods on which he is entitled to distrain but which have been fraudulently concealed from him. In the case of a dwelling house the power might only be exercised after the landlord had sworn before a justice as to the reasonable ground for his suspicion.

9) It is also necessary to notice section 19 of the Act of 1737. The purpose of the section was to prevent an irregularity during the course of the distress giving rise to a trespass ab initio with the consequence that the distrainor was liable for the value of the goods without a set-off on account of the arrears of rent.

11) At some time following the enactment of the Law of Distress Act 1737 a practice grew up of an agreement, commonly called a walking-possession agreement, being entered into between the landlord or bailiff on the one hand and the tenant on the other to regulate their relations after the initial entry and impounding of the goods. It is apparent from the decision in Lavell v O'Leary [1933] that at that period the form of agreement authorised the bailiff to "re-enter the premises peaceably or by force, if required, at any time."5 Likewise in Watson v Murray the walking-possession agreement in use in January 1952 by the sheriff executing a writ of fl fa authorised the sheriff to "re-enter my house and premises ... at any time you may think proper ... and if necessary to use force for that purpose."6 In January 1954 the Distress for Rent Rules 1953 made by the Lord Chancellor under Law of Distress Amendment Act 1888 s.8 prescribed, for the first time, a form of walking-possession agreement which might be "used with such variations as circumstances may require."7 The form so prescribed provided simply that "you [the bailiff and the man in walking-possession] may re-enter the premises at any time while the distraint is in force."

Though the rules and other parts of the walking-possession agreement have been amended from time to time no change has been made to the provision entitling the bailiff to re-enter...

13) It is in these circumstances that the tenants contend that the bailiff had no right to re-enter their premises without their consent. They submit that the walking-possession agreement gave no such authority and no right to act as he did was conferred on the bailiff by the common law. Judge Roger Cox disagreed. He said:

"Was the bailiff entitled to break in on 17 February 1992? If it was illegal, he was not. I have resolved that point and it was not an illegal distress. Granted that the original distress was not itself illegal, it is well settled that a bailiff may enter and, having levied distress, subsequently return and remove the goods and on the second occasion can in certain circumstances force entry, particularly if the premises have been barred against him. That goes back a long way. The problem is where the premises are simply locked, can they be said to be barred against the bailiff when he returns? There is a problem in that the occupiers may have gone out and locked the doors. I accept that times have changed since the 19th century when these rules were first laid down and it is now usual for people to lock the doors when they leave premises unattended. This is a matter that was considered at some length by Judge Roger Cooke sitting in Chancery Division in McLeod v Butterwick. That decision, if it is a decision which I should follow, resolves the point against the plaintiffs. It is persuasive upon me but not binding. Mr. Hamer says it is plainly wrong and pointed me to an analogy against forced entry in aid of an Anton Piller order. It seems to me that an Anton Piller order is a very different situation indeed, just as other forms of distress are different. In McLeod v Butter wick the court was dealing with a writ of fi fa, and there was no need for form 7 (the notice of seizure). I have read Judge Roger Cooke's judgment with great care. Whilst he feels driven to the conclusion he reaches that where the door is locked the bailiff is entitled to assume that it is locked against him I find these reasons compelling: but I do note that it may be thought to produce an anomalous position in this day and age. I share Judge Roger Cooke's reservations but I feel compelled to come to the same conclusion. The bailiff was entitled to force entry"

14) The tenants have renewed their submissions to this court. They submit that the judge was wrong because on its true construction the walking-possession agreement did not authorise the bailiff to use force at any time and the common law did not entitle him to do so in the circumstances of this case. In my view, it is convenient to consider the position at common law before seeking to construe the walking-possession agreement. As I have already indicated, it is not disputed that in the case of distress for rent, whatever the nature of the premises, the initial entry must be peaceable and with the consent of the tenant. Once the initial entry has been achieved and the goods impounded, then, they are in what is called "the custody of the law."9 If thereafter the distrainor were forcibly ejected or having left the premises for a temporary purpose his return is deliberately barred by the tenant then he may re-enter by force. This proposition is amply established by a number of cases to which we were referred. In view of the submissions made to us it is convenient at this stage to refer to them shortly in chronological order.

15) The first is Francombe v Pinche [1766]. In that case the bailiff distraining the goods of a tenant was forcibly ejected when preparing the inventory. After about an hour the bailiff, having obtained reinforcements, returned and, having been refused admittance, broke open the door. Wilmot J. held that he was entitled to do so because "this was a recontinuance of the first taking and so was lawful"

16) In Russell v. Rider [1834] the landlord put in a bailiff on December

27. He left in an agitated state on December 29th because, as the landlord supposed, his liquor had been drugged. On January 4 agents of the landlords broke into the premises under the same authority as previously held by the bailiff and removed goods. Bosanquet J decided that they were not entitled to do so because "possession had been left so far back"

17) In Eagleton v Gutteridge [1843] the defendant bailiff had entered the dwelling house of the plaintiff under a warrant for distress for rent and was forcibly ejected by the plaintiff. The defendant thereupon forcibly re-entered and was sued for trespass. Parke B held that the forcible re-entry was justifiable at common law.

18) In Brown v Glenn (1851) the defendant bailiff distrained horses of the plaintiff in the stable by breaking open the locked door. Lord Campbell CJ, distinguishing the case of the bailiff from that of the sheriff, held that the forcible entry was not justified "for the fact of the stable door being locked does of itself render this distress unlawful."

19) In Bannister v Hyde [1860] a bailiff in close possession of a shop and dwelling house by way of distraint for rent left for a short time to get himself some beer. During his absence the plaintiff locked him out and refused his requests to be let in again. Thereupon the bailiff broke down the back door and re-entered. It was held, by Crompton J, following Eagleton v Gutteridge, that the bailiff was entitled to use force to effect his re-entry for "being forcibly kept out ... amounted to the same thing as ... being forcibly turned out"

20) In Eldridge v Stacey [1863] a bailiff distraining goods in a dwelling house for unpaid rent was forcibly evicted. Three weeks later he re-entered by force. ErIe CJ, considered that as he "was put out by force, he was justified in resorting to force in order to regain possession.

21) Finally in American Concentrated Must Co v Hendry [1893] a landlord, by a bailiff, had sought to distrain goods in a warehouse. The bailiff had entered by breaking down the door. This was held by Bowen U to be unlawful. The bailiffs appeal was dismissed."

22) The legal position is summarised in Halsbury's Laws of England in the following terms:

"Forcible re-entry. After an entry has been made and not abandoned, but the distrainor has been forcibly expelled or driven away by the tenant's violence, he may obtain the assistance of a peace officer and break open the outer door, even after a considerable interval. On the same principle a forcible re-entry may be made where the man in possession voluntarily goes away for a short period, and not with the intention of abandoning the distress, and on his return finds the door locked. In such a case he may break open the door. It is a question of fact in each case whether there has been an abandonment."

To the like effect are the passages in Eddy on the Law of Distress, Hill & Redmans Law of Landlord and Tenant and Woodall's Law of Landlord and Tenant.

23) The tenants relied on all these cases and textbook references for the proposition that except in the limited circumstances of forcible ejection or exclusion which would justify the use of force on the part of the bailiff in retaking the goods he had already impounded there was no right of forcible entry. They relied particularly on Brown v Glenn and American Concentrated Must Co v Hendry. This was disputed by counsel in his excellent argument on behalf of the bailiff. He 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 he locked was entitled, without more, to force an entry. He submitted that the authorities dealing with forcible expulsion or exclusion, when properly understood, are only considering the impact of those circumstances on the question of abandonment. He took us through the authorities relied on by counsel for the tenants to indicate the way in which, in his submission, they should he read as supporting his proposition as opposed to that of the tenants. Both counsel accepted that, ultimately, this point depended on how one should read the judgments in Bannister v Hyde.

24) As I have already indicated the facts in that case were that a bailiff in close possession of a shop and dwelling house by way of distraint for rent left for a short time to get himself some beer. During his absence the plaintiff locked him out and refused the bailiffs requests to let him in again. Thereupon the bailiff broke down the back door and re-entered. At trial the judge had considered that the forcible re-entry was justified. During the course of the argument counsel seeking to uphold the judges order conceded that the distress had not been abandoned. He relied on the fact that the bailiff had not been forcibly ejected but had gone of his own accord and for his own purposes. The report indicates that during the course of argument Crompton J intervened when shown the report on Russell v Rider to the effect that, if there had been no abandonment, there would have been a right to re-enter. It is true that this intervention suggests that Crompton J considered that in Russell v Rider if the distress had not been abandoned then the bailiff would have been entitled to re-enter by force but it [S not apparent whether that view depended on treating the drugging of the bailiffs liquor as equivalent to a forcible exclusion or indeed remained his view at the conclusion of the argument.

25) In his judgment Wightman j said:

"In the present case there was no evidence of an abandonment, but the contrary. The man quitted, for a short time, the house in which the goods were, but clearly had no intention of abandoning them. On his return, he found the door locked against him; that placed him in the same position as if he had been forcibly ejected from the house, and therefore, as was held in Eagleton v Gutteridge, gave him the right to break open the outer door, if necessary, to regain possession"

The use of the word "therefore" in the last sentence is inconsistent with the submission for the bailiff. The other members of the court agreed with Wightman J. Thus Crompton J said:

"when it was once admitted that there was no evidence of abandonment, the plaintiff's case was at an end. During the temporary absence of the man in possession, the goods remained in the custody of the law; and, on his being forcibly kept out, which amounted to the same thing as his being forcibly turned out, he was justified, as was laid down in Eagleton v. Gutteridge, iii breaking open the door in the exercise of his right, not to retake (for he had not abandoned), but to retain possession of the goods distrained."

Blackburn J., who had been the trial judge, added:

"I directed the jury, first, that, if he went out with the intention of returning, the distress had not been abandoned in point of law; and I directed them, secondly, that, in such case, he was justified in using force, if necessary, for the purpose of re-entering. The counsel for the plaintiff, upon this, elected to be nonsuited. Eagleton v Gutteridge, is a conclusive authority that the person in possession, if kept by force from the actual possession of goods distrained and in his constructive possession, has a right to use force for the purpose of re-entering upon such actual possession"

26) In my view, that case does not support the proposition for which counsel for the bailiff contends. As counsel for the tenants submitted, if there was a right to re-enter by force in any circumstances so long only as the distress had not been abandoned, then the passages from the judgments I have quoted referring to the justification for the use of force were wholly irrelevant. The same is true of Francombe v Pinche, Eagleton v Gutteridge and Eldridge v Stacey. In each case the references to the forcible ejection of the bailiff would have been otiose if there were an unconditional right to re-enter by force. In particular, the direction of Lord Denman CJ to the jury in Eagleton v Gutteridge, that if the jury were satisfied that the bailiff was forcibly turned out the subsequent re-entry by force was justified would have been wrong. Likewise the conclusion of Erie CJ in Eldridge v Stacey, that if the bailiff were put out by force he was justified in resorting to force to regain possession would have been unnecessary. It would have been sufficient for him to have said "unless indeed he had abandoned the original distress" without the reference to the circumstances of being put out by force.

27) Accordingly, I reject the principal submission for the bailiff to the effect that after impounding he has at common law an unconditional right to reenter by force the premises where the goods are impounded. There is, in my view, no authority to support it. Such a right would be inconsistent with the view that those premises constitute the pound for there has never been any suggestion that a landlord or his bailiff was entitled to break into the pound. Moreover to recognise a right of forcible re-entry in all circumstances would be inconsistent with the provisions of the Law of Distress Act 1737. As I have already indicated, s.7 conferred a right of forcible entry in the case of goods fraudulently concealed but s.1O made no similar provision when providing for the first time that goods might be impounded on the tenant's premises. If it had been clearly established before that Act was passed that there was a right of forcible re-entry in all cases the omission might have been explicable, but it was not, and, indeed, could not have been, for previously the goods could not be impounded on private property. I do not doubt that, subject to any question of duress, a tenant might lawfully agree that the bailiff might re-enter by force. Lavell v O'Leary is such a case. But in my view it is not a right conferred by the common law in the absence of such an agreement.

28) In McLeod v Butterwick Judge Roger Cooke was dealing with the case of a sheriff executing a writ of fi. fa. not a bailiff levying a distress. But his decision and the reasoning behind it was adopted by Judge Roger Cox and applied to the case of the bailiff levying a distress. Thus it is appropriate to consider in this context what Judge Roger Cooke held. He, too, considered Bannister v Hyde and the conclusions which might be drawn from it. He said:

"it seems to me that the authorities, particularly when one looks at Bannister v Hyde, go a good deal further than actual expulsion (that is, removing from the premises the person who is already there). They must, I think, extend to any forcible prevention of the continuing of the execution. There is an indication in some of the books that notice ought to be given first, and, as a matter of practice, I am bound to think it ought to; but there is also an indication on other authority that there is no point in giving notice if there is nobody there to give it to. The real question is: does the principle extend (and there is no clear authority on this) to cases where, in fact, the premises are locked, not because the house owner is deliberately trying to exclude the bailiff or the sheriff, but simply where, put neutrally, the householder has locked the house, and in this particular case, as Mrs. McLeod tells me and I have no reason to doubt her, she had locked it because she had gone to work. The difficulty with qualifying the principle in such a case is this. From the point of view of the sheriff's officer, who is coming to execute his writ and to take, physically, possession of that which he already has by operation of law, he does not know why he is being kept out. All he knows, and can know, and possibly can ever know (unless the circumstances are such as they were in Bannister v Hyde) is that he is being kept out. It seems to me to follow, as a matter of strict reasoning, that, whatever is the case, if he comes hack to continue the possession which started as walking-possession by taking possession, and the door is barred against him, he can break through it. That being so, he was right to do it in this case too. It seems to me that the intellectual purity of the argument is convincing and I think I am bound to go down that road. I observe that it represents on evidence what has been the accepted practice of sheriffs, at least in Greater London, for a long period. I view it in modern conditions, however, with some degree of disquiet. It is all very well in an earlier world where, perhaps in the class of society where people had enough money for anybody to bother with an execution, it was most unusual to find a house to be locked, bolted and barred, unless that exclusion was the intention. Not so today. People are frequently out and about their lawful business, both sexes working, mothers out with their children, in circumstances that in the 19 century would have seemed odd and unusual; today we take for granted. I cannot help feeling that this practice is due for review, and I hope it will be by somebody. But there it is."

29) In my view, this conclusion involves an extension of the principle and of the existing authorities on the circumstances in which a bailiff may re-enter by force which I am unable to accept. If no notice has been given by the bailiff of his intention to re-enter and the only circumstance is that the outer door is locked that is, in my view, insufficient to justify a forcible re-entry. The justification for permitting force in response to cases of forcible expulsion or forcible exclusion is that given by the Privy Council in Aga Kurboolie Mahomed v The Queen [1843]. In that case, a sheriff executing a writ in Calcutta sought to arrest the appellant in his house. He entered through an open door but was then expelled by force and the door shut and locked behind him. Having obtained reinforcements the sheriff then, though under fire from within, re-entered by force. On appeal to the Privy Council, Lord Campbell giving their advice, held that the original entry through the open door was lawful, that the appellant was guilty of trespass in expelling the sheriff and could not rely on his own wrong to object to the subsequent forcible re-entry. The Privy Council also concluded that in the circumstances a demand for re-entry was not required as the appellant knew the purpose of the sheriffs call. Lord Campbell said:

"their lordships think that as they had once been lawfully in the house, and he knew they were lawfully about to arrest him, and he unlawfully caused them to be expelled for the purpose of preventing them from so doing, he cannot be permitted to take advantage of his own wrong, by thus defeating the process of the law; and that they had a right to place themselves in the position which they occupied when his unlawful act began. Without an actual arrest, there was no rescous or escape; but the proposition, that till an actual arrest had taken place, the prosecutor might forcibly expel the officer and those acting in his aid, and lock the outer door, so as to entitle himself to the protection of his castle, cannot be supported. The outer door being open, they were entitled to enter the house under civil process; and then being lawfully in the house, to arrest him, he was guilty of a trespass by expelling them. The act of locking the outer door was unlawful, and he could confer no privilege upon himself by that unlawful act. Again, there is no doubt that, generally speaking, before an outer door can be broken open, even to execute criminal process, there must be a demand of entry, and a refusal. But to what extent? To inform the owners of the house of the purpose for which entry is to be made, and to afford him the opportunity of opening the door and personally admitting the parties who are to execute the process of the law. Here the prosecutor, who had just expelled the defendants from his house, that they might not arrest him, full well knew the purpose for which they returned, and he showed a determined resolution to oppose their admission."

30) If that case truly expresses the rationale for the circumstances in which a forcible re-entry is justified then the mere fact that the door is locked cannot suffice. It is not wrong for a tenant, without more, to lock the door to the demised premises whether they be domestic or commercial. If he knows that the bailiff is seeking to re-enter but locks or leaves the door locked to exclude him then the tenant commits a wrong for he is wilfully obstructing the right of the bailiff to possession of the goods. But if he does not know of the bailiff's intended re-entry at any particular time then to leave his door locked and to absent himself about his normal affairs is his right. As the Privy Council indicated if the person in possession knows the purpose of the bailiffs visit then there is no need to give further notice of it. But that is no reason for concluding that where the tenant does not know of the bailiffs intention to re-enter at a particular time and leaves his door locked the bailiff may break in.

31) It is objected that if notice is required then by giving it the bailiff will provide the opportunity to the tenant to conceal his goods, thereby frustrating the object of the re-entry. This is true but insufficient reason to reach a different conclusion. It is common ground that the initial entry must be effected peaceably, usually by consent. The tenant then has five days to pay off the arrears. If the tenant has not used that opportunity to conceal his goods then I see no compelling reason on that ground why the bailiff should not he required to give notice of his re-entry.

32) Then it is suggested by reference to Semayne's Case (1604) and Lee v Gansel(1774),2 to which I shall refer in more detail in connection with the execution of a writ of fi fa, that the reason for not permitting forcible reentry is the risk of civil disturbance and the possibility of letting in robbers. It is suggested that the latter reason is not a good one because of the practice of the bailiffs to secure the premises with a new lock on leaving. Whilst this may remove much of the force from the second reason it does not affect the first, nor in my view can it provide a justification for a forcible entry on the premises of another.

33) For all these reasons, I would conclude that a bailiff is not entitled to reenter by force except where, having gained entry peaceably, he was expelled by force or he has been deliberately excluded by the tenant. What amounts to deliberate exclusion must be recognised on a case by case basis. It will include cases where the tenant knowing of the intended visit deliberately locks the door and goes away or when invited to admit the bailiff refuses to do so. But, in my view, it does not include the case of a tenant who has no knowledge of an intended visit by the bailiff at any particular time and locks his premises in the ordinary way and goes about his business as normal.

34) It is necessary to construe the walking-possession agreement against that background of the common law. It is in the prescribed form and embodies an agreement between the bailiff and the tenant that the former "may re-enter the premises at any time while the distress is in force." The bailiff relies on the use of the unqualified words "at any time." He submits that they mean just that, so that the right is not dependent on the consent of the tenant or the presence of other circumstances sufficient to justify a forcible re-entry. I do not accept that submission. It cannot have been intended by the parties that the bailiff should be entitled, without notice, to break in at any time of day or night. If such a power were intended then it would require to he expressed in plain terms. That is certainly the case if the power were conferred by a statute. In my view, it would not he right to attribute an intention on the part of the tenant to confer such wide-ranging rights on the bailiff without clear expression. I do not think that the use of the words "at any time" is sufficient, for they deal with time not method and must be read against the background of being a prescribed form which superseded the form previously in common use which expressly referred to the use of force.

Execution of writ of fieri facias

35) A writ of fi fa is a command to the sheriff "that of the goods and chattels and other property of [the judgment debtor] in your county authorised by law to he seized in execution you cause to he made the sum of [the amount of the judgment] ... and that immediately after execution of this writ you pay [the judgment creditor] in pursuance of [the judgment] the amount levied in respect of the said sum." The statutory authority of the sheriff to perform the command is now contained in section 138 of the Supreme Court Act, as amended.

36) It is not disputed that the sheriff in execution of a writ of fi fa may not make a forcible entry into a dwelling house unless and until he has completed his seizure of the goods in consequence of the first entry

Halsburys Laws of England. The rule is otherwise in the case of commercial or business premises. The origin of the rule may he traced at least as far back as Semayne's Case. The report is in the form of a number of resolutions which, so far as material, are sufficiently recorded in the side note in these terms:

"1. The house of every one is his castle, and if thieves conic to a man's house to rob or murder, and the owner or his servants kill any of the thieves in defence of himself and his house, it is no felony and he shall lose nothing ...

4. Where the door is open the sheriff may enter, and do execution at the suit of a subject, and so also in such case may the lord, and distrain for his rent or service. It is not lawful for the sheriff, on request made and denial, at the suit of a common person, to break the defendants house, that is, to execute any process at the suit of a subject

6. If the sheriff might break open the door to execute civil process, yet it must he after request made."

37) Following the initial entry and seizure the rights of the sheriff are very similar to those of the bailiff. He may remain in possession of them without any physical presence. This is normally, but not necessarily, evidenced by a walking-possession agreement. Thus, unless he has abandoned the goods, which is a question of fact, he may re-enter in order to remove the goods for the purposes of sale.

As in the case of the bailiff distraining for rent the question is whether the sheriff may forcibly re-enter and, if so, in what circumstances.

38) We were referred to a number of cases on this issue too. It is convenient to refer to them shortly and in chronological order before turning to the submissions of the parties. The first after Semaynes Case, was Lee v Gansel. In that case an officer seeking to arrest General Gansel peacefully entered the house from the street but then broke through an inner door. It was held that he was entitled so to do. Lord Mansfield CJ explained that the special position or privilege of a dwelling house, not to he extended by any equitable analogous interpretation, rested on policy for the protection of a man and his family for:

"otherwise the consequences would be fatal: for it would leave the family within, naked and exposed to thieves and robbers. It is much better therefore, says the law, that you should wait for another opportunity, than do an act of violence, which may probably be attended with such dangerous consequences."

Lord Mansfield CJ reiterated a passage in Semayne's Case, that "the same strict doctrine ... that breaking open the outerdoor was a trespass, but that taking away the goods was lawful."

39) In Pugh v Griffith [1838] the sheriff seeking to execute a writ of fi. fa. entered lawfully into a room occupied by a tenant from year to year and thence obtained access to the part of the house occupied by the plaintiff.26 There he seized certain goods. On seeking to remove the goods he found that the only exit available for that purpose was locked. He thereupon broke the lock and left. Lord Denman CJ held that he was entitled to do so for there was "nothing else to be done but to open it [the door] himself ..."

40) I have already referred to Aga Kurboolie Mahomed v The Queen. In Hodder v Williams the sheriff sought to execute a writ of fi fa over goods in a workshop. He requested entry and was refused. He then entered by force and was sued for trespass by the judgment debtor. The Court of Appeal considered that the forcible entry was justified. Kay LJ drew a distinction between that case and one of distress for rent over goods in a dwelling house.

41) In her very cogent submissions Mrs. McLeod pointed out that she had refused to sign a walking-possession agreement. She asked where is the authority entitling the sheriff forcibly to re-enter her home? The response of the sheriff was to refer to Mather on Sheriff and Execution Law. The passage relied on states:

"If after having obtained peaceable possession of a dwelling house the sheriff's officers be forcibly ejected, or be obliged to fly under threat of bodily injury, they may forcibly re-enter, and in such cases the sheriff can send as many additional officers as he may deem necessary ... Again, where the sheriff, having obtained peaceable possession, cannot carry away the seized effects or execute the writ without breaking the lock, etc. of the outer door because of its being locked, etc., and neither the execution debtor nor anyone on his behalf are on the premises to enable the sheriff to request them to open such door, he is justified in breaking it open."

The authorities cited as support for the statement in the last sentence are Pugh v Griffith, Eagleton v Gutteridge, Aga Kurboolie Mahomed v The Queen, and Bannister v Hyde. The sheriff did not submit that any of those authorities directly justified the proposition stated in the text. The most he felt able to submit was that if a sheriff might use force to get the goods out, as indicated in Pugh v Griffith, why should he not do so for the purpose of getting in.

42) I am unable to accept that submission. In Pugh v Griffith the decision of Lord Denman CJ is all dependent on the facts that the sheriff had achieved a lawful entry and seizure. Lord Denman said:

"The sheriff shows a lawful entry into the house, and a lawful seizure of the goods; and ... it cannot be said that there were any other doors, or any other mode of getting the goods out. Then what was the sheriff to do? The goods could not be kept forever in the house; and neither the plaintiff, nor anybody else, was there so that he could request them to open the door, and there was nothing else to be done but to open it himself ... he appears to be justified as a matter of necessity in order to get the goods out to execute the writ."

There is no authority to the effect that as a matter of necessity the sheriff is entitled forcibly to re-enter. He may be justified in doing so where he has been forcibly ejected or excluded, as indicated by the other cases cited in the footnote, but that is not what is suggested.

43) The statutory power conferred by s.138 authorises the sheriff to seize the goods. It contains no express power to make a forcible entry for that purpose and I see no grounds for implying one. Nor does the common law recognise such a power in respect of a dwelling house. Accordingly, in my view, and for substantially the same reasons a sheriff is entitled forcibly to re-enter a dwelling house in the same circumstances as a bailiff, disregarding the statutory restrictions I referred to earlier, but not otherwise. I should reiterate, in case it is not clear already, that this conclusion is confined to reentry to a dwelling house. If and in so far as a sheriff may forcibly enter premises other than a dwelling house I see no reason why he may not reenter such premises in a similar fashion.

44) It follows that in both appeals, because that concerning the sheriff also concerns a dwelling house and there is no question in either of them of the bailiff or sheriff being expelled by force, the question is whether the bailiff or sheriff on seeking to re-enter had been deliberately excluded by the tenants or Mrs. McLeod respectively. In each case that is a question of fact to be considered in the light of the individual circumstances. But in neither case if they had no knowledge of an intended visit by the bailiff at any particular time will it be enough that they had locked their premises in the ordinary way and gone about their business as normal. I turn then to the facts of each appeal and the other points which arise in respect of each of them.

Khazanchi v. Faircharm Investments Ltd [paras. 45-50) In 1990 Faircharm Investments Ltd let premises to the plaintiffs, Mr. Khazanchi and Mr. Rattu, for use as a recording studio. By January 1992 the tenants owed the landlord 8,914.54. A bailiff was instructed and, on 17 January, the bailiff attended, levied on "all recording equipment" and entered into walking-possession. The tenants had until 22 January 1992 to pay. As the rent arrears were paid, the bailiff returned on 12'February 1992 at about 4.45 p.m. He had tried unsuccessfully to contact the tenants beforehand and came accompanied by a police officer and a locksmith. The door was locked and the premises were unoccupied as the tenants were each away on business. The bailiff forced entry, removed the goods, changed the lock and left new key with the caretaker, On 26 February 1992 the goods removed were sold at auction for the total sum (net of VAT) of 12,315. On September 3"' 1992 the tenants started the proceedings in Uxbridge County Court. They claimed that the distress was unlawful because the walking-possession agreement was not in accordance with the regulations and because the bailiff was not entitled forcibly to reenter the premises. In addition they alleged that there had been an agreement with the landlord over installment payment and that their goods had been sold at a gross undervalue, for which they claimed damages based on their true value, which they put at not less than 65,498.

50) The claim was heard by Judge Roger Cox who concluded that the walking-possession agreement was valid, that the bailiff had been entitled to force re-entry, that no payment agreement had been made and that there had been no sale at undervalue

51) On this appeal the tenants claimed that the judge was wrong in three respects. First, it was contended that the judge was wrong in law to have concluded that the bailiff was entitled to make a forcible entry to the premises on February 12 1992. Second, the tenants submitted that the judge was wrong not to find that the agreement they alleged had been concluded between the tenants and the landlord on February 25th 1992. Third, they suggest that the judge was wrong to conclude that the value of the goods was that realised at auction or, in the absence of any second-hand market, other than the price as new discounted for any element of betterment.

52) I have already quoted the judges conclusion in respect of the first issue and decided that as a matter of law where the premises are merely locked and unattended that is insufficient to justify a forcible re-entry. But counsel for the bailiff pointed out that at the trial it was never suggested that the bailiff should have given notice of his proposed re-entry so that the question of whether the bailiff had been deliberately kept out was never examined. He relied on the facts that the bailiff had telephoned the premises and left a message on the answering machine on 29th January and 7, 10 and 12 February. But there was no evidence what those messages were nor whether any of them was received by either tenant. Counsel for the bailiff did not ask for a new trial or for leave to adduce fresh evidence. In those circumstances, in my view, the proper decision for this court to arrive at is that the forcible re-entry was unjustified as a matter of law. The tenants clearly alleged that the original entry was forcible and wrongful. By the various defences the defendants relied on the fact that the bailiff was executing a warrant for distress. As a matter of law that defence was insufficient. In my view, it was for the bailiff to plead and prove sufficient justification in law. Accordingly, the absence of any investigation at the trial of what the messages were, whether either tenant received any of them or why the premises were wholly unoccupied when the bailiff called is no reason for refusing to conclude that the re-entry was unjustified and so a trespass at law. 53) The tenants did not, in my view sensibly, pursue their contention that the judge should have found that there was on 25 February an agreement between them and the landlord during the course of the hearing. Accordingly, the only remaining issue is that of damage. In view of the judges findings this was not an issue which arose before him. But he dealt with it in conjunction with an allegation that the distress had been excessive in that the bailiff had seized goods to a value substantially greater than that which was required to pay the rent in arrears. In this connection he had to consider the allegations of the tenants that the auction sale had not realised the true value of the goods.

54) The evidence for the tenants on this issue was that of Mr. Khazanchi to the effect that he had used the recording equipment for about five to six years. He said that some of the equipment could not be bought second-hand and that he had not intended to replace any of it in the near future. Originally he had valued the equipment at 65,000. After he heard the evidence of Mr. Jackson, the expert witness for the tenants, as to value he dropped his original estimate to 50,000. The evidence of Mr. Jackson was to the effect that there was little or no second-hand market for goods of this sort and that his estimate of value was the product of his inquiries of others concerned in the business of sound recording. The values he used were for similar goods when new as shown in catalogues issued in 1992. He himself had not seen the goods, did not know their age or condition and had made no allowance for depreciation. The judge's conclusion was:

"I can place little or no reliance on the valuation evidence. However when the goods were sold at auction they reached a price of 12,315. This is the only hard evidence I have so far as the value of the goods is concerned. This is evidence on which I can do no other than rely. Of course, it was a forced sale. However it was still a sale at which persons were in competition with each other, and therefore a realistic value was achieved and I must accept that that was the value. That sum, as a matter of fact either only just covered the distress or fell a little short of it. Therefore it would be wholly wrong to suggest that the distress was excessive regarding the value of the goods, and further any claim which the plaintiffs might have based on the distress being unlawful rather than illegal fails on the basis that they have not showed they suffered any loss. Any claim for damages by the plaintiffs fails."

55) For the tenants it is claimed that the judge was wrong to accept the price realised at auction as the best evidence of the value of the goods. They also contend that the judge was wrong to have determined that the tenants had failed to prove that they had suffered any loss. I would reject both those submissions. The price realised at auction is not necessarily the best evidence of value at any particular date but if there is no evidence, and there was none in this case, to the effect that the auction had not been properly advertised or conducted it is evidence a judge is entitled to accept. But as the judge had rejected the evidence of value given by Mr. Khazanchi and Mr. Jackson for good reason in this case it was the only evidence of value before the court. In those circumstances not only was the judge entitled to accept the evidence of the prices realised at auction but, as he indicated, in practice bound to do so for it was both credible and unchallenged. I propose to consider the question of loss on the basis of the prices for the goods realised at auction.

56) The total realised was £12,315 to which was added VAT on the hammer price of £2,155.19. The auctioneers commission and charges for advertising and porterage, before VAT, were £1,847.25 (VAT 323.27), £325 (VAT £56.88) and porterage £1,000. The cheque sent by the auctioneers to the bailiff was for £10,917.79. The cost of the new locks fitted on 12 February, inclusive of VAT, was £94.31 and was paid by the bailiff on 3rd March. The bailiff deducted from the amount he had received from the auctioneer his charges of £916.74, which included VAT, and sent a cheque to the landlord for £10,001.05. The rent for which the distress had been levied amounted in all to £8,914.54.

57) It was contended by counsel for the tenants that on these figures it was shown that the tenants had sustained a loss because it was not shown that the landlord would account for the VAT on the hammer price. If that were so then the gross proceeds, including VAT on the goods distrained, would have been £14,470.19 and the total charges of the auctioneer and the bailiff including VAT to be deducted therefrom was £4,469.14. It is not clear whether the price of the new lock was included in the charges of the bailiff or was extra, but it does not matter. The surplus on this basis was £10,001.05 or £9,906.74. This exceeds the amount of £8,914.54 for which the distress had been levied. I do not accept this submission. There was no investigation at the trial of how the VAT element on the sums realised and the charges paid was or should have been dealt with. The onus was on the tenants to establish their loss. If the landlord was not registered for VAT then the auctioneer and the bailiff should not have accounted to it for the VAT on the hammer price; if it was I see no reason to infer that the VAT would not have been properly accounted for. In my view, it is clear that VAT should he left out of account in respect of both the receipts and payments. On this footing the amounts realised by the sale of the goods distrained was £12,315, the charges and expenses of the auctioneer were £3,172.25 and those of the bailiff were about £750. Thus the net realisation was £8,392.75 or some £521.79 less than the outstanding rent for which the distress had been levied. Accordingly, in my view, the judge was right to conclude that the tenants had not established any loss arising from the sale of the goods removed on 12 February.

58) The tenants claim that, nevertheless, they are entitled to damages under a variety of heads and descriptions, namely, nominal damages for trespass, damages for breach of the covenant for quiet enjoyment and/or wrongful exclusion from the demised premises and damages for breach of the walking-possession agreement. These claims and that for damages for wrongful interference with the goods were disputed by the bailiff on the grounds that recovery under any of the suggested heads would be contrary to the requirements of the Distress for Rent Act 1737 s.19.

59) That section applies: "where any distress shall be made ... and any irregularity or unlawful act shall be afterwards done by the party distraining ..." In my view, it is plain that the section applies, at least, to the stages of the overall process of distress which follow the initial seizure and impounding. Thus the section is applicable at the stage of re-entry with which this appeal is concerned. In cases to which the Section applies the consequences are stated to be that:

"the distress itself shall not he therefore deemed to be unlawful, nor the party ... making it be deemed a trespasser or trespassers ab initio; but the party ... aggrieved by such unlawful act or irregularity shall or may recover full satisfaction for the special damage he ... shall have sustained thereby, and no more, in an action of trespass or on the case ..."

60) Thus the bailiff may not he treated as a trespasser ab initio because of some intervening irregularity. And the claimant may only recover satisfaction for the special damage sustained because of that irregularity. The only special damage must he that arising from the wrongful re-entry. But on the facts of this case the only damage which can be suggested, and it was not in fact claimed, is the damage (if any) to the door. But the cost of the new lock, 94.31, was not charged to the tenants because the proceeds of sale of the goods, after deduction of the other costs and expenses for which the tenants were liable, were insufficient to cover it. Nor was there any suggestion of any damage to the door for which the tenants were liable or charged.

61) Further it is clear that even if it had not failed on the facts the claim for unlawful interference with the tenants goods would have been barred by this section. There is no doubt that the bailiff was entitled to possession of the goods for he had impounded them and had the benefit of the walking-possession agreement. As pointed out in Lee v Gansel, in relation to the execution of a writ, though the entry may have been wrongful the removal of the goods was not. It is only possible to avoid this consequence if the bailiff is treated as a trespasser ab initio by virtue of the unlawful re-entry. But that is precisely what the section prohibits.

62) In any event, in my view, the claim would have failed on the grounds of causation. Even if, as I have held, the bailiff was not entitled to re-enter on 12 February in the way he did he was entitled to re-enter by force if he was wrongly excluded. Had he given proper notice of his intention to re-enter I have no doubt he would have been entitled to obtain the goods for the purpose of the auction on 261 February. In that event, he would have sold them in precisely the same circumstances as those in which in fact he did. There is no suggestion that the goods were damaged or depreciated by the manner or timing of their removal, in my judgment, no claim under this head is made out.

63) 1 would also reject the claim for damages for breach of the walking-possession agreement. The wrong for which damages is sought is the bailiffs forcible re-entry of the demised premises without the consent of the tenants or justification in law. The fact that the walking-possession agreement did not give the requisite consent does not mean that the wrong of which complaint is made is for a breach of that contract rather than for the trespass. In my view, the tenants cannot avoid the restriction in the section by pleading their claim as a breach of contract.

64) For similar reasons I would reject the claim for breach of the covenant for quiet enjoyment. This covenant ... was in the normal form whereby the landlord covenanted:

"that the tenants paying the rents hereby reserved and performing and observing the covenants on their part herein contained shall peaceably hold and enjoy the demised premises during the said term without an interruption by the landlords or any person rightfully claiming under or in trust for them."

It was established in Dawson v Dyer [1833] that the payment of the rent is not a condition precedent to the performance of the covenant. But the unlawful act or interruption complained of is still the forcible re-entry. The tenants are entitled to full satisfaction but no more for that wrong. They cannot avoid the prohibition by pleading the wrong in an alternative form.

65) In these circumstances, in my view, the tenants have failed to make out any special damage for the purposes of Distress for Rent Act 1737 s.19. It is established that in those circumstances the bailiff cannot be liable for nominal damages either.

66) The overall result is that, though the judge was wrong in respect of the lawfulness of the re-entry, on the facts of the case and applying the provisions of Distress for Rent Act 1737 s.19 no recoverable damage has been made out so that the action fails. In those circumstances, in my view. the appeal should be dismissed because there is no reason to vary the order of the judge.

 

McLeod v. Butterwick

 

[paras. 67-72) In 1992 the plaintiff, Mrs McLeod, brought and lost proceedings in the county court against various parties. One issued a writ against her for £7,295.43, which was directed to the Sheriff of Greater London, the defendant Mr. Butterwick. On January 24th 1995 a sheriffs officer attended Mrs McLeod's home in Greenford and claimed formally to have seized the goods then in the premises, although Mrs McLeod refused to enter into a walking-possession agreement. She brought unsuccessful interpleader proceedings, after which the sheriff was instructed to continue with the execution no earlier than December 18 1995. On 91 December 1995 an officer attended at the house to execute the writ, Mrs McLeod was out at work. Finding the door locked the officer called a locksmith, forced entry and new locks fitted so that the premises would he secure after he left. Having been alerted by a neighbour, Mrs McLeod returned home but, despite her protests, the officer removed the goods to which, in accordance with the order in the interpleader proceedings, he considered that he was entitled. Mrs McLeod started some further unsuccessful court proceedings and then on December 271 issued a writ in Chancery Division of the High Court seeking damages for trespass arising from the illegal entry combined with an injunction against sale of her goods or re-entry into her home. The injunction application was heard by Roger Cooke J on February 1 3rh 1996 and was dismissed. He concluded there had been a valid seizure followed by a lawful re-entry by force and that the sheriff was lawfully entitled to sell. Mrs McLeod appealed to the Court of Appeal.]

73) By her appeal Mrs. McLeod seeks from this court the interlocutory relief she sought from Judge Roger Cooke, namely an injunction restraining the sheriff from selling the goods removed from her home on 19 December 1995 and an injunction restraining him from entering her home save pursuant to an order of a court of competent jurisdiction made after hearing both parties. There has been no trial and we are not concerned with whether she is entitled to any damages, including the aggravated and exemplary damages she has claimed. In passing I observe that we were not referred to any statutory provision applicable to a sheriff comparable to Distress for Rent Act 1737 s.19.

75) Mrs. McLeod criticised the judges uncritical acceptance of the sheriffs allegations of seizure and impounding on the occasion of his first visit on 24 January 1995. In her affidavit sworn on 11 January 1996 she had stated in unambiguous terms that there had been no indication of seizure, merely a demand for payment of the judgment debt. She was not cross-examined on that affidavit at the hearing of the interpleader proceedings before Mr. Baker. The oral evidence which Mr. Baker accepted was the one-sided version of the sheriffs officer. She submits with some force that the so-called finding of Mr. Baker was not made after hearing oral evidence on both sides and is open to challenge by her. But the judge only found that on the application before him he should be slow to regard this issue as a serious one to be tried. He proceeded on the basis that the issue was likely to be decided in all probability in the sheriffs favour. For my part I think that the judge was in the circumstances entitled to take that approach. He was not deciding the issue, merely weighing it for the purpose of exercising his discretion.

76) I pass then to the question whether the sheriffs re-entry on 19 December 1995 was lawful or not. I have already quoted the passage from the judges judgment in which he concluded that point against Mrs. McLeod. He did so on the footing that the door was locked and that was sufficient justification for the forcible re-entry, notwithstanding that no notice had been given to Mrs. McLeod of his intention to re-enter. For the reasons I have already given I disagree with the judge's conclusion. In my judgment, the sheriff's forcible re-entry on 19th December 1995 was unlawful and a trespass. It may be that it will be held at the trial that Mrs. McLeod is entitled to damages on account of that trespass but it does not follow at this stage that she is entitled to either of the injunctions she seeks.

77) The judge held that in the absence of a walking-possession agreement the sheriff does not have to remain in close possession to avoid abandoning possession of the goods seized. He concluded that notwithstanding the interval of 11 months between the first entry and the second there had been no abandonment because of the prosecution of the interpleader proceedings. In my view he was right in respect of both matters. Thus at the time of the forcible re-entry the sheriff was in possession of the goods which, by virtue of s.138 of the 1981 Act, he had been entitled to seize and was entitled to sell. In these circumstances, I do not see how an injunction to restrain the sale of the goods so seized and now stored in a warehouse off Mrs McLeods premises could be justified. Mrs. McLeod has not paid the judgment debt and, apparently, has no intention of doing so. As pointed out in Lee v Gansel, though the re-entry may have been wrongful the removal of the goods was not. The statutory right to sell continues to subsist and I see no reason to inhibit its exercise.

78) The same point may be made with regard to the injunction sought to restrain entry except pursuant to an order of the court. The sheriff does have a right to re-enter otherwise than pursuant to an order of the court, namely if removed or excluded by force. But I have no reason to think that he threatens and intends to re-enter the home of Mrs. McLeod otherwise than as permitted by law as established by the decision of this court on these appeals. Though his re-entry on 19th December 1995 was unlawful and a trespass, there is no reason to think that it will be repeated unless an interlocutory injunction is granted. It may well be that at the trial it will be appropriate, if the judge thinks fit, to make a declaration as to the unlawfulness of the re-entry as well as giving judgment for such damages as Mrs. McLeod may establish. But, in my judgment, there is no good reason for granting the injunction sought at this stage.

79) It follows that, as in Khazanchi v Faircharm In vestments Ltd, though for different reasons, I see no reason to interfere with the order the judge actually made. Accordingly, though I disagree with the judge's conclusion on the lawfulness of the re-entry, I would dismiss this appeal.

Conclusion

80) In the event, I would dismiss both appeals though, in each case, I have concluded that the judge was wrong on the important point of principle.

This may appear to be an unsatisfactory result for in one sense it means that an illegal act has been inflicted on the plaintiffs without any immediate means of redress being afforded to them by the law. But this is the consequence of the application to the facts of the provisions of Distress for Rent Act 1737 s.19 in the one case and the circumstances including the fact that there has not yet been a trial in the other. However, it should be noted that in cases such as these there may be a sanction pursuant to either Criminal Damage Act 1971 s.1 or Criminal Law Act 1977 s.6."

Result.

The wrongful re-entry was treated as an irregularity under Distress for Rent Act 1737 s.19. As a result, only the special damages proved could be recovered and none were shown