Wilson v South Kesteven District Council

Under the The Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989, a debtor has two statutory opportunities to halt distress: before seizure, and after seizure but before sale. There is no right to redeem goods while seizure or removal is in progress. A bailiff entering premises intending immediate seizure is already a person levying distress and must provide the required authority and documentation promptly. The memorandum should include the debt and accrued scale charges. Failure to comply is a subsequent irregularity, not an unlawful distress. Recovery requires proof that the irregularity caused special damage.

South Kesteven District Council appealed from Judge Julian Hall's judgment in the Peterborough County Court dated 18 March 1999. The judge entered judgment for Mrs Wilson on liability and damages to be assessed for unlawful distress after bailiffs seized and removed goods from her hotel while she tendered £3,500.

The appeal concerned the stages at which payment or tender could halt distress, the contents and timing of the memorandum required by regulation 14(5), and the legal effect of non-compliance with that provision.

1. Disposition. The appeal was allowed unanimously. The order below was set aside and judgment for the defendants was substituted. There was no order for costs either in the Court of Appeal or below, and permission to appeal to the House of Lords was refused.
2. Stages of distress. Simon Brown LJ held that regulation 14(3) and (4) addressed two distinct stages. Payment or tender could halt the process before any goods were seized, and again after seizure but before sale. The statutory scheme gave no right to redeem goods during the seizure or removal process. Bailiffs could agree to stop the process during that period, but the debtor could not compel them to do so. The practical difficulty was that charges would be accruing and might depend on removal and transport costs. Steel Linings Limited and Harvey v Bibby & Co [1993] RA 27 illustrated the interval after seizure in which charges could be considered or taxed and an injunction obtained if necessary.
3. Regulation 14(5). A person entering premises with a view to immediate seizure was a person levying distress. The obligation to carry written authority and provide the memorandum, regulation 14 and Schedule 3 therefore arose on or shortly after entry; actual seizure or removal was unnecessary. A purely preliminary visit was different. The memorandum should state the liability together with the accrued Schedule 3 scale charge for levying distress, and could usefully identify possession charges where relevant. The approach was not thought inconsistent with Brintons Ltd v Wyre Forest District Council [1977] 1 QB 178; if inconsistency remained, Simon Brown LJ stated that he would overrule that decision.
4. Irregularity and remedy. Failure to provide the required memorandum or copies of the regulation and Schedule 3 was a subsequent irregularity under regulation 14(7). It did not of itself render the distress unlawful. The debtor had to prove causation and special damage. Special damage had a wide meaning and covered loss caused by the irregularity, following Steel Linings Ltd v Bibby & Co [1993] RA 27. The same distinction was applied from Quinlan v Hammersmith and Fulham London Borough Council [1989] RA 43.
5. Application. Mrs Wilson's tender was made during the seizure and removal process, when the bailiffs were not legally bound to accept it. Even if the memoranda or service of the regulation were defective, she could not show that a different form or earlier service would have enabled her to halt the distress and sale. The trial judge's conclusions were therefore unsustainable.

1. Court of Appeal (Civil Division) — Appeal allowed. The lower court's order was replaced by judgment for the defendants.
2. Peterborough County Court — On 18 March 1999, Judge Julian Hall entered judgment for the debtor on liability for unlawful distress, with damages to be assessed.