Bailiffs: Invalid Walking Possession?
With thanks to Tomtubby
The following is another example that demonstrates that posting a Walking Possession through a door, without first entering the property can be invalid.
DAVIDSON V ROACH (1991)
BRISTOL COUNTY COURT.
Mr Davidson obtained an injunction founded on an action for both trespass and wrongful interference against a company of bailiff by the name of Roach & Co.
The grounds for this were that: the bailiff had apparently tried to levy on goods by posting two notices of distress through the door.
The bailiff however had never entered the property, had not identified any goods, or taken walking possession etc.
A month later, with payment still outstanding, the bailiffs returned and removed goods that included three cars, this time posting a notice of Distress through a window.
Just before the hearing was due to take place, the firms of bailiffs: Roach & Company settled out of court apparently conceding that their actions had been invalid.
EVANS v SOUTH RIBBLE BOROUGH COUNCIL (1991)
COURT OF APPEAL.
There are very few legal cases concerning bailiff action. but this particular one is most important and is very well known to all bailiffs…..now it can be know to the public also……. This case demonstrates clearly that in order to levy distress on goods, seize and impound goods, the bailiff must first have gained entry into the premises.
This case was an Appeal by a Community Charge payer against the decision of the Magistrates Court that had dismissed her complaint against the bailiffs that had levied on goods on behalf of her local authority: South Ribble Borough Council.
The bailiff had attended at her property for £341 of arrears. Mrs Evans was not at home when the bailiff visited, the bailiff then posted an envelope through her letter box containing a notice of Distress, a draft Walking Possession agreement signed by the bailiff and requiring Mrs Evan’s signature and return plus various other documents that explained the methods of payment, and the amount of the debt.
Mrs Evans did not return the Walking Possession; instead she sought legal advice about this method of seizure.
In his Judgment Mr Justice Simon Brown, reviewed the law and he concluded the following:
- “Once entry is made, very little in the way of seizure and impounding is required…...but there must in the first instance be an entry (into the property), thus: it is my clear conclusion that external inspection and posting through the letterbox is a course of action insufficient to bring about the legal consequences of Distress”
And that: the process of distress consists of three stages;
- the entry into the premises,
- the seizure of the goods
- the subsequent securing of the goods (generally called impounding)
WALKING POSSESSION JUSTIFIES FORCED ENTRY.
Mc LEOD v BUTTERWICK:
Judge Roger Cooke: Chancery Division.
The following is the text of the legal case concerning the matter of a Walking Possession. References to this particular case have been made many times, either in letters of complaint to the local authority or when taking legal action.
When Sheriff's Officers forced entry into a household for the purpose of seizing goods, which were already subject to a formal seizure by a previous peaceable entry, were they acting within the law? Apparently so, according to Judge Roger Cooke, who found that: where a sheriff had previously had walking possession of goods under a writ of fieri facias, he was entitled to gain entry forcibly in the absence of the householder.
In January 1995, sheriff's officers attended a domestic property to seize goods relating to a debt of £7,000. They were admitted peaceably by the householder and formally seized various goods.
Later that year, it was held by Mr. Nigel Baker, QC sitting as a deputy judge of the Queen's Bench Division that this amounted to taking walking possession of the goods.
In December, the officers returned to the house in order to remove the goods. The defendant had left for work and the house was locked. The officers called a locksmith, gained entry to the house, removed the goods and then made the premises secure with new locks.
The householder issued a motion against the High Sheriff of London.
Anthony J Butterwick sought an injunction to restrain him from disposing of the goods, and from entering her house without a court order. This was on the grounds that the forced entry was illegal.
Judge Roger Cooke sitting as a Judge of the Chancery Division held that the entry was lawful.
The case law on which the ruling was based is an ancient one in Lee v Gansel (1774).
Lord Mansfield, Lord Chief Justice, stated that: “breaking open the outer door was a trespass….. but that taking away the goods was lawful". The seizure of the goods, and the subsequent disposal was therefore within the law, but the question remained as to whether the forceful entry had contravened lawful procedure.
The well known and well established Semayne's Case (1604) concerned the premise that "the house of every one is his castle” and that "it is not lawful for the sheriff ... to break the defendant's house".
The householder relied on the Semayne Case and the QC agreed that an original entry to take possession of goods would be illegal if forced.
But, if a Walking Possession had previously been signed, a forced entry to obtain, what was in effect, the sheriff's own property was in order and legal.