UK: Distress and Human Rights

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, under Article 1 of the First Protocol, to the peaceful enjoyment of his possessions. The human rights implication of levying distress must be in the forefront of the mind of the landlord before he takes this step, and he must fully satisfy himself that taking his action is in accordance with the law."

Taking Lightman J’s comments further, under Article 6, everyone is entitled to the right to a fair and public hearing, yet the use of distress conflicts with this right.

From Lightman J’s comments, we can see that the remedy of distress does not sit happily with the European Convention on Human Rights and the court is prepared to exercise control over its use. The Human Rights Act 1998 incorporates the European Convention on Human Rights into English law and it will be interesting to see whether the courts rule that the remedy of distress is a contravention of the Human Rights Act. With the current unpopularity of the remedy it will not be long before the point is raised but the courts need to be careful not dilute what is a useful remedy to commercial landlords so much that it makes it unusable in practice.