McLeod v Butterwick [1996] 3 All ER 236, [1996] 1 WLR 995

 

Ceases from April 06 2014. See Regulation 4(1) of the Taking Control of Goods Regulations 2013 now defines goods exempt for the purpose of civil enforcement.

Repealed by Section 65 of the Tribunals, Courts and Enforcement Act 2007.

 

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 24 1995 a sheriff's 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 th 1995.

On 19th 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 be 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 27 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 13 th 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.

 

Passages from the Judgment

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 th 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 section 19.

Mrs. McLeod criticised the judge's 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 th 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 sheriff's 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 he slow to regard this issue as a serious one to be tried. He proceeded on the basis that the issue was likely to he decided in all probability in the sheriff's 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.

I pass then to the question whether the sheriff's re-entry on 19 th December 1995 was lawful or not.

I have already quoted the passage from the judge's 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 19' December 1995 was unlawful and a trespass.

It may he 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.

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 section138 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 McLeod's 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.

The same point may he 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 19 th December 1995 was unlawful and a trespass, there is no reason to think that it will he repeated unless an interlocutory injunction is granted. It may well he 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.

It follows that, as in Khazanchi v Faircharm Investments 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

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 section 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 section1 or the Criminal Law Act 1977 section 6

It was accepted that forced re-entry to premises to remove goods previously levied even though this practice is not established by law, but the Court of Appeal decided that this was incorrect after reviewing the case law.

The right to force re-entry arises only where the bailiff is being deliberately excluded and accordingly was the case in Khazanchi and McLeod.

Minimal force should be used and the bailiff must not cause a breach of the peace.

Khazanchi - the wrongful re-entry was treated as an irregularity under section 19 of the Distress for Rent Act 1737 so only the special damages proved could be recovered but none were shown.

McLeod was refused two injunctions but she did not make a claim for damages or trespass.

The court noted nothing in sheriff's law equates to Section 19 of the Distress for Rent Act 1737 and as a result a wrongful re-entry could render a levy invalid.