PROCESS FOR ILLEGAL OR IRREGULAR DISTRESS
If there was no right to distrain or an unlawful act was committed at the beginning of distress it can be said to be an illegal distress.
The following instances could be examples of illegal distress:
i. Distress after payment
ii. Distress on protected goods
iii. Breaking into premises
iv. Selling goods not distrained upon
v. Distress on goods of a person not named in the warrant.
The remedies of an illegal distress are:
- An appeal to the Magistrates' Court
- An action of Replevin
- An action under the Torts (Interference with Goods) Act 1977
- An action for damages.
This is a legal process, which enables the owner of illegally distrained goods and chattels to obtain redelivery. The term applies to both the redelivery and the action taken in which the right is tied.
An action for replevin is commenced in the County Court in the area in which the goods have been seized. County Courts Act 1959.
The action consists of two parts:
a. The replevy
b. The action
This is the chargepayer giving security, normally by way of a bond, that they will prosecute an action of replevin. Replevy enables the goods to be restored providing they give an understanding that the action will commence within 1 week.
Is the formal hearing in either the County Court or High Court, the distrainer is the defendant and replevisor is the plaintiff. If the plaintiff succeeds they are generally awarded the expenses of the replevy and further entitled to recover actual damages for the wrongful taking or detention of goods.
If the defendant succeeds they are entitled to the return of the goods and their costs.
Under the Torts (Interference with Goods) Act 1977 an action can be brought in either the County Court or High Court for 'wrongful interference with goods'. The plaintiff can apply for either specific delivery or restitution of the goods taken and/or damage.
If there was a right to distrain, which has, been properly exercised but a subsequent event has been carried out in an unlawful manner it can be said that the distress is irregular.
The following may be examples of irregular distress:
a. Endorsing a warrant 'no sufficient distress available’ without any levy.
b. Selling the goods without appraisal even though it has been requested.
c. Selling for other than the best possible price.
d. Dealing improperly with the surplus after sale.
The remedies for irregular distress are an appeal to a Magistrates’ Court or as action for damages in the Crown Court