Distress and Human Rights

Author:Miss Gillian Bell
Profession:KSB Law
 
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Distress, the ancient remedy of seizing chattels from a debtor so as to obtain payment for a debt, is becoming unpopular in some quarters. The Lord Chancellor's department has published a consultation paper on distress recommending reforms and the Law Commission has recommended its abolition. Even the courts intend to curtail its application.

Last year, KSB acted for the defendants in the case of Fuller v Happy Shopper Markets Ltd and another [2001] 25 EG 159, the facts of which are as follows:

The Claimant entered into a lease of premises. Under the terms of the lease, if the premises were rendered unfit for occupation due to an insured risk, the rent would be suspended. In January 1994 a storm damaged the roof of the premises rendering part of the premises unfit for occupation, although the Claimant continued to pay rent until December 1995 when he claimed that the rent should be suspended under the terms of the lease. In February 1997 the Defendant instructed bailiffs to levy distress on the basis of rent arrears. The Claimant issued proceedings alleging that the distress was unlawful.

Lightman J held that although the Claimant had no right to legal set off in relation to the distress, he was entitled to an equitable set-off. He went on to say that a landlord before levying distress, needs to ensure that there are no claims on the part of the tenant that may be available as an equitable set-off. This is an interesting point on the law of set-off, a point already raised in the case of Eller v Grovecrest Investments Ltd [1994] 27 EG 139. What is more interesting are the comments Lightman J made on human rights:

The ancient (and perhaps anachronistic) self-help remedy of distress involves a serious interference with the right of a tenant, under Article 8 of the European Convention on Human Rights, to respect for his privacy and home and...

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