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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Wilson v South Kesteven District Council [2000] EWCA Civ 218 (13 July 2000)
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Cite as: [2000] EWCA Civ 218

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Case No: B2/99/0408 & B2/99/0609

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM H.H. JULIAN HALL
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Thursday 13 July 2000

B e f o r e :
LORD JUSTICE SIMON BROWN
LORD JUSTICE SCHIEMANN
and
LORD JUSTICE MUMMERY
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WILSON

Respondent


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SOUTH KESTEVEN DISTRICT COUNCIL

Appellant


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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Mr G. Pulman QC & Mr S. Livesey (instructed by Graham J Wood of 16-18 Station Road, Kettering, Northants NN15 7HH, solicitors)for the Respondent
Mr N. Pleming QC & Miss M. Macpherson (instructed by Hextall Erskine & Co of 28 Leman Street London E1 8ER, solicitors) for the Appellant
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Judgment
As Approved by the Court
Crown Copyright ©


LORD JUSTICE SIMON BROWN:
If ever clarity were needed in the law it is surely with regard to the seizure and sale of a debtor's goods. What are the powers and obligations of the bailiff? What rights has the debtor? The answers to such questions should be simple and readily accessible. Yet the process of levying distress is an arcane one and the present law, as noted in the Law Commission's Working Paper (1986)(No. 97) on Distress for Rent, p.145, para. 5.1(1), "is riddled with inconsistencies, uncertainties, anomalies and archaisms".
The present appeal centres upon regulation 14 of The Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989 (the Regulations) and schedule 3 to those Regulations, and raises a number of issues of obvious importance. It is convenient at once to set out the relevant provisions and this I shall do by reference to their terms following minor amendment in 1990; the particular distraint with which this appeal is concerned occurred in September 1992 before certain further amendments were made in 1993.
"14 (1) Where a liability order has been made, the authority which applied for the order may levy the appropriate amount by distress and sale of the goods of the debtor against whom the order was made.
(2) The appropriate amount for the purposes of paragraph (1) is the aggregate of -
(a) an amount equal to any outstanding sum which is or forms part of the amount in respect of which the liability order was made, and
(b) a sum determined in accordance with Schedule 3 in respect of charges connected with the distress
(3) If, before any goods are seized, the appropriate amount (including charges arising up to the time of the payment or tender) is paid or tendered to the authority, the authority shall accept the amount and the levy shall not be proceeded with.
(4) Where an authority has seized goods of the debtor in pursuance of the distress, but before sale of those goods the appropriate amount (including charges arising up to the time of the payment or tender) is paid or tendered to the authority, the authority shall accept the amount, the sale shall not be proceeded with and the goods shall be made available for collection by the debtor.
(5) The person levying distress on behalf of an authority shall carry with him the written authorisation of the authority, which he shall show to the debtor if so requested; and he shall hand to the debtor or leave at the premises where the distress is levied a copy of this regulation and Schedule 3 and a memorandum setting out the appropriate amount, and shall hand to the debtor a copy of any close or walking possession agreement entered into.
...
(7) A distress shall not be deemed unlawful on account of any defect or want of form in the liability order, and no person making a distress shall be deemed a trespasser on that account; and no person making a distress shall be deemed a trespasser from the beginning on account of any subsequent irregularity in making the distress, but a person sustaining special damage by reason of the subsequent irregularity may recover full satisfaction for the special damage (and no more) by proceedings in trespass or otherwise."
(I omit paragraphs (6), (8) and (9) which are immaterial to this appeal).
SCHEDULE 3
CHARGES CONNECTED WITH DISTRESS


1. The sum in respect of charges connected with the distress which may be aggregated under regulation 14(2) shall be as set out in the following Table -

(1)
Matter connected with distress

A For making a visit to premises with a view to levying distress (whether the levy is made or not):


B For levying distress:
C For the removal and storage of goods for the purposes of sale:
D For the possession of goods as described in paragraph 2(3) -
(i) for close possession (the man in possession to provide his own board):
(ii) for walking possession:
E For appraisement of an item distrained, at the request in writing of the debtor:
F For other expenses of, and commission on, a sale by auction -
(i) where the sale is held on the auctioneer's premises:
(ii) where the sale is held on the debtor's premises:
G For other expenses incurred in connection with a proposed sale where there is no buyer in relation to it:

(2)
Charge
Reasonable costs and fees incurred, but not exceeding an amount which, when aggregated with charges under this head for any previous visits made with a view to levying distress in relation to an amount in respect of which the liability order concerned was made, is equal to the relevant amount calculated under paragraph 2(1) with respect to the visit.
An amount (if any) which, when aggregated with charges under head A for any visits made with a view to levying distress in relation to an amount in respect of which the liability order concerned was made, is equal to the relevant amount calculated under paragraph 2(1) with respect to the levy.
Reasonable costs and fees incurred.
£4.50 per day
45p per day
Reasonable fees and expenses of the broker appraising.
The auctioneer's commission fee and out-of-pocket expenses (but not exceeding in aggregate 15 per cent. of the sum realised), together with reasonable costs and fees incurred in respect of advertising.
The auctioneer's commission fee (but not exceeding 7½ per cent of the sum realised), together with the auctioneer's out-of-pocket expenses and reasonable costs and fees incurred in respect of advertising.
Reasonable costs and fees incurred.

Paragraph 2(1) makes provision for calculating a scale fee for heads A and B. Paragraph 2(3) describes what is meant in these regulations (see regulation 14(5) and head D) by close possession and walking possession. Paragraph 3 provides for taxation of the charges in the event of a dispute, such taxation to be carried out by the local county court registrar who may give such directions as to the costs of the taxation as he thinks fit, any costs payable by the debtor to be added to the "appropriate amount" under regulation 14(2).
The appeal is brought by the appellant rating authority against the order of Judge Julian Hall made in the Peterborough County Court on 18 March 1999, entering judgment on the issue of liability in favour of the respondent debtor for damages to be assessed for "unlawful distress starting on 22 September 1992". Ordinarily at this stage of the judgment I would set out at least the basic facts of the case and the trial judge's main conclusions. However, for reasons which will eventually become clear this would, I believe, tend to cloud rather than illuminate the real issues arising. Instead, therefore, I turn at once to these, different though they are from those regarded as determinative below. As I see it, the critical issues are these:
1. Is a debtor entitled to halt the distraint process by payment or tender at any time or only at either of two specific stages during the process, respectively before seizure and before sale?
2. What should be stated in the memorandum required by regulation 14(5) and when should it be handed over to the debtor or left at the premises?
3. What is the consequence of completing the distraint process without having complied properly with the requirements of regulation 14(5)?
Issue 1 - When may the process be halted?
This dispute hitherto has been litigated on the basis that the debtor is entitled to halt the distraint process by an appropriate payment or tender at any time. The bailiffs advanced no contrary contention and, indeed, no one questioned the correctness of that assumption until we ourselves questioned it in the course of the appellant's submissions. Nor, surprisingly, did Mr Pleming QC appear avid to encourage the court in its doubts. And yet I have come to the clear conclusion that the assumption was wrong and that, so far from the debtor having a continuous opportunity to end the process, that opportunity arises only (a) before any goods are seized (regulation 14(3)), and (b) after seizure and before sale (regulation 14(4)). There is, in short, no opportunity to redeem the goods afforded during the period of seizure itself.
We are, as it seems to me, driven to that conclusion both by the scheme and language of the regulation and by consideration of the practicalities. As to the former, it is evident that paragraphs (3) and (4) of the regulation are directed at two distinct stages. Paragraph (3) in terms applies only to the period "before any goods are seized" whilst paragraph (4) postulates that the relevant goods have been seized and in terms applies to the next stage, "before sale". Had it been intended to provide for payment or tender to halt the actual process of seizure, there would have been no need for two separate paragraphs framed as they are; rather a continuum of opportunity would have been reflected in a single paragraph allowing for payment or tender at any time before sale. And consider the practicalities. The payment or tender has to include the accrued charges. These are readily calculable before the process of seizure is begun. And after seizure and before sale comes an interval of time sufficient to consider the charges and in the event of dispute have them taxed, if necessary obtaining meantime a county court injunction to restrain sale - see Steel Linings Limited and Harvey v Bibby & Co. [1993] RA 27. During seizure, however, the determination of the accrued charges will almost inevitably be difficult. They are likely to be accruing minute by minute. They may well depend upon the charges of others such as transport and removal contractors. And, depending upon the precise point at which the tender is made, they may also be affected by the debtor's own ability to undo the seizure process, for example by unloading or collecting goods already seized. All that, as will appear, is well illustrated by the facts of this very case.
Issue 2 - What memorandum is required by Regulation 14(5)?
The only explicit requirements of paragraph (5) of the Memorandum are that it shall set out "the appropriate amount", and that "the person levying distress" shall hand it to the debtor or leave it at the premises. What, let us first consider, is "the appropriate amount"? Were regulation 14 better drafted the answer would be a good deal clearer than it is. The phrase, of course, appears in each of the first five paragraphs of the regulation (and again, indeed, in regulations 16 and 17). Paragraph (2) defines it as (a) the sum due under the liability order (including the court costs - see regulation 12(6)(b)) and (b) the schedule 3 charges. Ostensibly, however, it defines it only "for the purposes of paragraph (1)". Paragraphs (3) and (4) each refer to "the appropriate amount (including charges arising up to the time of the payment or tender)". Why, one wonders, was it thought necessary in these paragraphs to specify that the appropriate amount includes accrued charges? Would not the same result have been more simply achieved by extending the paragraph (2) definition to paragraphs (3) and (4) as well? But more importantly, what is the suggested meaning in paragraph (5) of the bare phrase "the appropriate amount", there being in this paragraph (in contrast to paragraphs (3) and (4)) no express inclusion of accrued charges?
For my part I would construe paragraph (5) purposively so as to ensure that the memorandum achieves its maximum benefit. That must surely be to inform the debtor as fully as possible of the nature and extent of his liability. To that end "the appropriate amount" should, I think, include the basic scale charge for the distress, i.e. that appropriate to head B "for levying distress" which will by then have accrued. It might also with advantage specify the stipulated head D daily charge, at all events in cases where the debtor has been prepared to enter into a close or walking possession agreement.
To the same end it seems to me plainly desirable that the memorandum should be handed over to the debtor at the earliest opportunity, ideally when the person levying distress first enters the premises and thereby embarks upon the distraint process. I suggested in Evans v South Ribble Borough Council [1992] 1 QB 757, 764 when seeking to distill the relevant law into a number of basic principles, that the first principle was this:
"The process of distress consists of three stages: the entry into the premises, the seizure there of goods, and the subsequent securing of the goods (generally called impounding)."
I would hold therefore that anyone entering the premises with a view to the immediate seizure of some or all of the occupier's goods is a "person levying distress" within the meaning of regulation 14(5). He must carry for the purpose (and if requested show to the debtor) his written authorisation. He does not need actually to seize (let alone remove) any goods before he comes under this obligation. True, as Mr Pulman QC points out, head A of schedule 3 clearly contemplates that premises may be visited without any levying of distress. I would construe this, however, to refer only to a preliminary visit to premises, perhaps to see whether they have been vacated or are otherwise worth distraining upon, and not to a visit upon which, for example, the bailiff proposes to invite the debtor to sign a walking possession agreement. I do not think any of this conflicts with what Donaldson J said in Brintons Ltd v Wyre Forest District Council [1977] 1 QB 178. If, however, it does, then I would overrule that decision.
The advantages of handing over the memorandum (and, of course, copies of regulation 14 and schedule 3, as paragraph (5) specifies must also be done) as soon as possible are surely obvious. The debtor will then be given the maximum opportunity to pay off his liability before the process gets fully under way and charges begin to escalate. Unless the debtor is shown regulation 14(3) before seizure of goods begins, his chance of buying off the bailiffs at that initial stage will obviously have gone before he even learns of his rights.
I would accordingly construe regulation 14(5) to require the bailiff on or shortly after entry onto the premises to hand over to the debtor (if present) a memorandum setting out the sum owing including the schedule 3 scale charge for the levying of distress under head B.
If the debtor is not present so that the memorandum (and copies of regulation 14 and schedule 3) will instead have to be left at the premises, then the memorandum ought properly to alert the debtor to the fact that further schedule 3 charges under head C have already accrued (if goods have already been removed) and/or are likely to accrue unless the appropriate sum is now paid. I may perhaps note that the 1993 amending regulations introduced a new head C into schedule 3, namely "For one attendance with a vehicle with a view to the removal of goods (where, following the levy, goods are not removed): Reasonable costs and fees incurred". Clearly, if that particular expense were nowadays to be incurred, the memorandum should make express reference to it.
Issue 3 - What is the consequence of non-compliance with regulation 14(5)?
I can deal with this issue altogether more shortly. A failure to provide the required memorandum and/or copies of regulation 14 and schedule 3 would clearly constitute a "subsequent irregularity" within the meaning of regulation 14(7) and would thus entitle the debtor to recover any special damage proved to have resulted from it. Special damage has a wide meaning and covers all loss occasioned by the irregularity - see Steel Linings Ltd v Bibby & Co. [1993] RA 27, 34. The important point to note, however, is that causation must be established; the distraint process itself is not rendered unlawful by such an irregularity - see Quinlan v Hammersmith and Fulham London Borough Council [1989] RA 43, 58.
With that approach to the Regulations in mind let me at last come to the facts of the present case which, since it will be seen to have been litigated below on a misconceived basis, I can take comparatively shortly.
The respondent, Mrs Wilson, was the proprietor of the Stamford Post Hotel in Stamford (the premises). She fell into debt. On 29 July 1992 a liability order was made against her by the Stamford Magistrates in respect of unpaid non-domestic rates due to the appellant authority in respect of the premises for the year 1992/93. The liability order was in the sum of £3,266.25 for arrears plus £16 for court costs.
On 11 September 1992 bailiffs, Jefferies & Pennicott (Northern) Limited, paid the first of three visits to the premises. The bailiffs, I should note, were brought in by the defendant authority as third party to the action but thereafter joined with the defendants in presenting a united front to Mrs Wilson's claim and, indeed, became jointly represented below.
The bailiffs' representative on 11 September 1992 was a Mr Goodwin who is said to have made an inventory of the premises' contents and who certainly handed over to Mrs Wilson a completed proforma document purporting to be the required regulation 14(5) memorandum. The document is headed "Notice of Seizure of Goods and Inventory" and makes reference to the relevant 1989 Regulations. It then identifies the debtor and the premises and continues:
"Amount for which this Distress is made:
Arrears due to Authority: £3266.25
Court Costs awarded by the Court 16.00
Levy Fee to scale schedule: 78.66
Statutory Walking Possession Fee
(15 days @ 45p per day) 7.93
Amount now due: £3368.84 A "
Having then stated that all payments must be made to the bailiffs and not to the Authority, the form continues:
"Take notice that by virtue of an authority given to me by the above Council I have this day seized and distrained on the premises situated at the address shown above the goods specified in the following inventory for the sum due for the arrears and costs under the liability order issued to the Council in the Magistrates' Court as shown above - A.
And further take notice that unless the amounts be paid inclusive of all the costs and charges of this Distress, within 6 days from the date hereof, the goods listed below will be removed from the premises and sold according to the law."
There then follows an inventory (which, on the copy produced, is unclear as to the details), and, at the foot of the document, Mr Goodwin's signature and the date. Schedule 3 (although not regulation 14) is printed on the reverse side of the form.
I shall postpone until later my criticisms of that form.
In the week following Mr Goodwin's visit, Mrs Wilson paid off £200 towards her outstanding liability but that, perhaps unsurprisingly, did not halt the process of distraint.
On 22 September 1992 the bailiffs made their second visit to the premises, intent this time on seizing (assuming seizure had not already constructively taken place on 11 September), and more particularly upon removing (and thereby impounding), the goods. On this occasion their representative was a Mr. Harris and he attended with two lorries and two men hired from a firm in Louth to assist him. The men seem to have been there at least intermittently from about 4 pm to about 9 p.m. and, during this time, a number of crates of beers and minerals were loaded onto the vehicles. The visit ended, however, when, as the judgment below records, "he [Mr Harris] made the mistake, as she [Mrs Wilson] saw it, of popping outside to talk to his fellow bailiff or fellow helper, driver, and she took the opportunity to slam the door behind him, locked all the other doors and kept him out. One way or another, his file stayed in the hotel while he did not." The file was never recovered and thus it is that the only copy of the memorandum of 11 September available is the one with the unclear inventory produced on discovery by Mrs Wilson herself.
The bailiffs made their third and final visit the next day, 23 September, when again Mr Harris attended with two drivers and two men hired from Louth. They were accompanied by the police and were permitted entry and on this occasion, over a period of many hours, the seizure and loading up of the contents of the hotel onto the lorries was completed. At about 6 o'clock, however, whilst the work was still under way, Mrs Wilson tendered £3,500 in cash in discharge of her liability. £1,000 of this was produced by a friend and backer, a Mr Brennan, whom the previous day she had asked for help and who had brought the money down overnight from Darlington. The remaining £2,500 was cash which she had been keeping against her quarterly VAT return and which she went to fetch that afternoon from a safe deposit box in her bank at Corby. Mr Harris rejected the tender, however, on the grounds that it was by then insufficient to meet Mrs Wilson's liability. He is said to have demanded an additional £1300 or perhaps £1800 by way of charges. The removal process therefore continued. Finally, by now late in the evening, when all the contents of the hotel had been loaded onto the lorries, Mr Harris handed to Mrs Wilson a further memorandum in similar form to that which Mr Goodwin had previously left with her save that this second form (a) put the "amount now due" at £3,360.91 (i.e. it omitted the suggested walking possession fee of £7.93) and (b) had attached to it by way of Inventory a number of sheets which listed every single item removed from the premises and stated:
"Re outstanding non-domestic rates - balance outstanding £3,271. plus removal costs and storage fees and waiting time and auction fees - pursuant to the above order, the items listed below have today been seized and will be sold by public auction without reserve unless full payment including all costs are paid into our office by 29 September 1992."
By the time the loading process was completed on 23 September it was too late to deliver the goods to the auctioneers' sale room at Alford. They therefore had to be taken that night to Louth and delivered to Alford the next day. In due course they were all sold at auction in the course of three successive sales, the sum realised being sufficient to meet the whole of Mrs Wilson's liability including the full charges of the distress and sale, leaving her a small credit balance of some £73. Precisely how much the charges were at any particular stage it has proved impossible to discover. The action was not brought until 1996 and the hearing in March 1999 took place over six years after the events in question. But realistically these details do not matter. The approach taken by the judge below, as he himself put it, "side-stepped the question of what was owing". My own approach, different though it is, likewise makes the details of the charges immaterial.
As already indicated, the case below was contested on the mistaken footing that regulation 14(4) allowed the debtor to tender payment at any time, including therefore in the middle of the removal process which was when finally Mrs Wilson came to make her offer of £3,500. The evidence at the hearing stretched over three days, the fourth day being devoted to legal submissions and an extempore judgment. The first main factual issue at trial was whether Mrs Wilson had ever in fact made any offer. Mr Harris denied this. That issue, however, was resolved in Mrs Wilson's favour and the finding is, of course, unassailable. The critical next issue arising was whether the offer had been made in a sufficient sum given that charges had obviously been accruing up to the point when it was made. The judge expressed his conclusions upon that issue (the issue he plainly regarded as determinative) as follows:
1. As to the memorandum which was handed over when the bailiffs finally left the premises on 23 September 1992 (the defendants were not, apparently, relying on the earlier memorandum of 11 September):
(a) that memorandum "was, by that time [i.e. by the time when the first seizure was held to have been made on 22 September] not written. There was therefore no memorandum, no copy of schedule 3, no copy of regulation 14 provided at the time of seizure, and all those mean that there had been what I regard as a gross breach of regulation 14."
(b) "The form of this memorandum, in my judgment, conceals the true position, and is inadequate to alert the plaintiff to what the true position was. It is positively misleading, I find."
2. "In my judgment, regulation 14(4) implies an obligation on the bailiffs to know the up-to-date figure, and to be prepared to put it in writing. It seems to me, and in my judgment I rule, that at the time when a document is served or relied on, it must be as up to date as possible. In regulation 14(4) the appropriate figure, on the face of the document, "amount now due", must reflect the instant position. It is not enough to say that, "Oh, by the way, everything else is covered by, `inclusive of all the costs and charges of the distress'."
3. "Either this document does not conform with regulation 14(4), or in my judgment, by their conduct and lack of knowledge, the bailiffs have precluded the plaintiff from relying on a remedy by the Regulations. ... I find that £3,500 was offered which was, in my judgment, more than enough to satisfy what was then lawfully claimed, £3,360.91. As I say, in my judgment, by producing a memorandum that is so misleading, the defendants have precluded the plaintiff from relying on the remedy provided by the Regulations and are precluded from relying on it. Either way, in my judgment, it was an unlawful distress thereafter."
In short, the judge appears to have concluded that a tender of no more than £3,360.91 was required to terminate this distraint under regulation 14(4) unless and until a regulation 14(5) memorandum was handed over specifying some larger sum to be due as a result of accrued charges, and that, of course, never happened. In the result, Mrs Wilson's goods should never have been removed so that she has become entitled to damages, apparently on the footing that, but for this unlawful distress, she would have continued trading as the proprietor of the Stamford Post Hotel.
That conclusion is, no doubt, understandable given the way the case was conducted below. But it is not to my mind a conclusion which is sustainable in the light of what I would hold to be the correct approach to regulation 14. In my judgment Mrs Wilson had no legal right to buy off this distraint process on 23 September 1992. The whole of that day was devoted to the seizure and removal of her goods and it fell, therefore, between the two opportunities for tender afforded respectively by regulation 14(3) (before seizure began) and by regulation 14(4) (after seizure ended and before sale). Of course debtors can always hope to persuade bailiffs to call off a distraint by making a sufficient offer during the seizure process. But they cannot compel this and can hardly complain if the bailiffs demand as the price of cooperation the full payment of all their charges (which is likely to be put at a round figure broadly calculated to meet all expenses incurred). Take this very case. It seems to me entirely unsurprising that by 6 pm or thereabouts on 23 September the bailiffs were demanding accrued charges substantially exceeding the £340 representing the difference between (a) the amount due under the liability order, £3,360.91, and (b) the £200 already paid together with the £3,500 tendered.
As for the memoranda dated respectively 11 September and 23 September, it seems to me that the former (handed over as it was before the seizure process began) was altogether a better candidate than the latter for satisfying the requirements of regulation 14(5). The former gave the debtor a six day opportunity (which continued in fact for eleven days) to buy off the distraint process for £3,368.84. The latter really was of very little value to the debtor, telling her no more than that various unspecified further charges would accrue and have to be paid within six days if the sale of the goods thereafter was to be prevented. Why then should the appellants not rely on the earlier memorandum? True, its inclusion of a statutory walking possession fee of £7.93 was incorrect (a) because the figure itself is a plain miscalculation and, (b) more fundamentally, because no walking possession agreement was in fact entered into. True too the form by its first recital states that the bailiff's representative has "this day seized and distrained ... the goods specified in the ... inventory" whereas, certainly on the judge's finding, no such seizure took place that day. That first recital, of course, contrasts with the second recital which threatens removal and sale after a further six days, apparently inferring that once the goods have been removed there will be no further opportunity to redeem them. Better, surely, that the memorandum should specify the sum to be paid to halt the process before seizure (in the sense of removal) begins, and should then indicate that, if the goods have to be removed for sale, further charges will accrue and have to be paid if such a sale is thereafter to be prevented. But none of these criticisms were apparently advanced by the debtor; rather her case appears to have been that the tender which she made on 23 September could only lawfully be refused if a memorandum specifying charges which took the outstanding total to above £3,500 had already been (or perhaps was then and there) served upon her, to my mind an impossible argument.
Let it be assumed, however, that neither of the memoranda served in this case strictly satisfied the requirements of regulation 14(5). That failure, just as the bailiffs' failure (as the judge also found) to serve on the debtor a copy of regulation 14, would clearly constitute an irregularity in the process. But would such irregularities of themselves entitle the debtor to succeed in her claim for damages for unlawful distress? In my judgment they would not and nor, indeed, do I understand the judge to have concluded otherwise. His judgment, as already indicated, was squarely based upon his conclusion that the bailiffs were legally bound to accept the debtor's tender. Assume, as I would hold, that they were not so bound. The debtor would then need to establish that, because of the non-service upon her of (a) a memorandum in different form or at an earlier time than those served and/or (b) a copy of regulation 14, she failed by payment or tender to halt this distress and sale which otherwise she would have done. On no view of the evidence, as it seems to me, could such a conclusion be reached.
From all this it follows that I for my part, whilst naturally accepting all the judge's findings of fact, would hold his conclusions to be unsustainable. I would allow this appeal.
Lord Justice Schiemann:
I agree that the appeal must be allowed for the reasons given by Simon Brown LJ.
Lord Justice Mummery:
I also agree.
Order: Appeal allowed. The order of the judge below substituted by an order for judgment for the defendants. No order for costs either here or below. Permission to appeal to the House of Lords refused. Detailed assessment of the respondent's costs, his contribution assessed as nil.
(Order not part of approved judgment.)


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