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This paper sets out for consultation proposals for the future of distress for rent and explores in depth the options of total abolition and a modified procedure. The consultation is aimed at all individuals and groups who have an interest in the distress for rent procedures, particularly landlords, tenants and bailiffs in England and Wales. This consultation is being conducted in line with the Code of Practice on Written Consultation issued by the Cabinet Office. It falls within the scope of the Code. The Code criteria are set out at Annex H.
An initial impact assessment indicates that landlords and tenants are likely to be particularly effected. The proposals are likely to lead to additional costs or savings for businesses, charities or the voluntary sector. A partial Regulatory Impact Assessment (RIA) is attached at Annex A.
Copies of the consultation paper are being sent, amongst others, to:
Please send your response by 3 August 2001 to:
Claudine Edwards
Lord Chancellor's Department
Civil Justice Division
Third Floor
Selborne House
54-60 Victoria Street
London SW1E 6QW
Or by e-mail to: distressforrent response
Representative groups are asked to indicate the people and organisations they represent when they respond.
The Department may wish to publish responses to this consultation document in due course. Please ensure your response is marked clearly if you wish your response or name to be kept confidential.
Statistical information on the existing use of distress for rent procedures is very limited and would be particularly welcome to inform further policy development. Confidential responses will be included in any statistical summary of numbers of comments received and views expressed.
Further copies of this consultation paper can be obtained from Claudine Edwards at the above address or by phoning 020-7210 8654.
As part of the Lord Chancellor's ongoing reform of the civil justice system and the Review of Civil Enforcement, the Department has been reviewing the remedy of distress for rent. Distress for rent has its foundation in common law. The Distress for Rent Act 1689 modified an ancient feudal remedy which enabled goods to be sold to satisfy debts arising from rent default. It has been subsequently modified and amended piecemeal over the last 300 years. The Distress for Rent Rules 1988, which govern application of the remedy, can be found at Annex B. (Endnote 1)
The Lord Chancellor's Department accepts that the current law on distress for rent is incongruous within the context of a modern rights based society and that some change is necessary and desirable. However, more information is needed and views are sought on what changes are required. Our view is that the remedy of distress for rent should be abolished in the residential sector, but retained in a revised form in the commercial sector. Nevertheless we also explore the option of total abolition.
The aim of this consultation is to:
Proposals for a modified procedure would apply only to the use of distress in commercial premises. As distress is a "self-help" remedy, (i.e. not court based) there are no official statistics on its use or effect. As well as exploring future policy options, this consultation paper seeks to establish the current scale and effect of use of distress in the commercial property sector.
We are seeking the views of a wide range of organisations and individuals and although it is unlikely that each respondent will be able to answer all of the questions we would welcome as much information as respondents are able to supply.
The following chapters explore the current procedure, the effect of abolition in the residential sector, the option of total abolition, and proposals for a modified procedure for use in the commercial sector. The Regulatory Impact Assessment (RIA) (Annex A) is based on preliminary enquiries undertaken by LCD and DETR officials. We would particularly welcome comments on the statistics and information included in the RIA.
Summary of proposals for Distress for Rent in a modified pocedure for commercial premises only
The aim of a modified procedure for the commercial sector would be to retain a self-help remedy but to make it more accessible and fairer, particularly for tenants. Substantive and procedural rules defining the remedy would be set out clearly in primary and/or secondary legislation.
It is proposed that the modified procedure would clarify the position so that distress for rent would only be available for rent arrears and not for service or other associated charges.
It is proposed that only a certificated bailiff (Endnote 2) (i.e. not landlords acting in person) would be able to undertake distress for rent procedures.
It is proposed to limit the number of people who may attend premises to undertake distress for rent to two, including the certificated bailiff, unless there is good reason for more to attend.
It is proposed, to restrict the time of day during which distress for rent can take place.
It is proposed that the right to distrain for rent may not be exercised on a Sunday, Bank Holiday, Christmas Day or Good Friday.
It is proposed that the issues of forcible entry and re-entry will be made clearer.
It is proposed that there would be no right of entry onto the premises of third parties.
It is proposed that a minimum of 72 hours notice must be given to the tenant before the right to remove goods under distress for rent action arises.
It is proposed that the tenant will be able to apply to the court to challenge the existence of the debt and to seek an injunction to stop the landlord proceeding to distraint.
It is proposed that bailiffs must, in addition to showing their certificate, (permitting them to undertake distress for rent) also give clear information on the whole process.
It is proposed that 14 days notice must be given to the tenant before the sale of seized goods takes place.
It is proposed that distress is only to be levied when outstanding rent exceeds one quarter of the annual sum.
It is proposed that there should be a list of exempt goods, based on that used in the Insolvency Act 1986 Section 283(2) and excluding third party goods entirely.
It is proposed that a safeguard be introduced to ensure that the goods seized are commensurate in value with the amount of rent arrears and costs due.
It is proposed that the onus will be on the bailiff to get the best price reasonably obtainable when selling the tenant's goods.
It is proposed to clarify the tenant's right to bring proceedings.
It is proposed that in order to bring more certainty to the liabilities that tenants may face there should be greater clarity in the fees that can be charged.
It is proposed that any penalties against the tenant for interfering with goods subject to walking possession would be for damages.
It is proposed that the remedies which a tenant is entitled to take against the landlord who distrains improperly should be equal to the liabilities to which a tenant is subjected for interference with walking possession.
In preparing this consultation we have particularly considered:
The Review of Civil Enforcement was announced by the Lord Chancellor in March 1998. Its terms of reference are:
To examine the present methods available for enforcement of county court and High Court judgments, to assess their effectiveness, identify the reasons for any ineffectiveness, to identify what changes would be necessary to enhance the effectiveness of the current methods of enforcement; and to make costed recommendations;
To examine the information, advice and assistance currently available to creditors and debtors, to identify what changes would be necessary to enhance the effectiveness of the current methods of enforcement; and to make costed recommendations;
To review the powers of bailiffs (county court and private sector) to determine what changes to their powers would be needed to enhance the effective enforcement of civil court judgements and to increase uniformity; and to make costed recommendations;
To consider what amendment is needed for the successful implementation of section 13 of the Courts and Legal Services Act 1990; and to make costed recommendations;
To consider whether, and if so how, the present power to distrain for rent should be abolished (as recommended by the Law Commission); and to make costed recommendations.
On 6 March 2001 the Lord Chancellor announced a broadened scope for the Enforcement Review. It will now examine various options including the issues surrounding the creation of a new class of enforcement agents who would be officers of, but not necessarily employees of, the court. Examples of areas to be considered include: independent complaints handling systems; robust training and qualifications; licensing for different types of bailiff activity; and, fee structures. This Consultation Paper forms part of the Review and considers the issue of Distress for Rent in some detail. Further consideration will be given, to the certification procedure and role of certificated bailiffs Phase Two of the Enforcement Review.
As part of the Review the Lord Chancellor's Department will publish a Green Paper on the structure and regulation of enforcement together with proposals for a single piece of bailiff law in late Spring 2001, followed by a White Paper later in the year setting out proposals for legislation.
The Law Commission recommended that all forms of distress for rent should be abolished and that it should not be open to parties to agree an equivalent remedy by contract. It recommended the abolition of distress for rent when effective alternative remedies for landlords were available through the courts. The Commission identified some twenty-four criticisms of the law of distress in their working paper and concluded that "distress for rent is wrong in principle". The Law Commission's conclusions can be found at Annex C.
The major criticisms identified were:
reforms to the ancient law have been piecemeal resulting in obscurity as well as an outdated approach to debt enforcement;
many of the rules are arbitrary and artificial;
the opportunity for judicial consideration of the issues before distress takes place is limited to cases where leave is required;
no-one controls the action of the landlord when he is distraining in person and controls on bailiffs are limited;
the rule that all goods on the tenanted premises are distrainable is subject to a multitude of exceptions;
there is only a short time for the tenant or third party to try and stop the sale of the goods; and
the tenant's remedies for wrongful distress are often available too late and are artificially restricted by the form of impropriety in the distress.
Of the 297 responses to the Law Commission report, 245 were in favour of retaining distress for commercial properties. However, the overwhelming number of responses were from landlords rather than tenants.
The Human Rights Act 1998 introduced the provisions of the European Convention on Human Rights (ECHR) into the UK law. The Act enables people to assert their Convention rights directly through UK courts and tribunals. Some commentators have expressed the view that the current system of distress for rent may be vulnerable to challenge under the Human Rights Act; others disagree. It has been suggested that the remedy could engage Articles 6, 8, and 14 of the Convention and Article 1 of the First Protocol. The following paragraphs consider the issues raised.
Article 6
In considering reforms to the distress for rent procedure, we have worked on the assumption that "civil rights" will be in issue and that there could be a dispute about those rights such that Article 6 will be engaged. We have been particularly concerned to ensure that the new system will:
give the tenant an effective right of access to court if there is a dispute about his liability to pay the arrears claimed;
ensure that the tenant has sufficient time to exercise his right of access to court; and
ensure that the tenant is made aware of his legal rights, including his right of access to court.
We consider that compliance with Article 6 can be achieved notwithstanding the proposal to allow distress without a court order initially.
Article 8
Article 8 protects the individual's right to privacy, and also prevents a public authority from intruding disproportionately into a person's private life. Notwithstanding that, under these proposals, distress for rent will be confined to commercial premises, the proposals have been developed on the assumption that, in certain circumstances, the areas protected by Article 8 will be affected. We recognise that, prima facie, distress for rent may constitute interference with the rights protected by Article 8. We have therefore developed proposals which are intended to ensure that the interference is permitted by Article 8(2), and in particular that they strike a proportionate balance between the interests of the tenant and the rights of the landlord. It is, for example, proposed to include a number of safeguards which are intended to ensure that the procedure is not abused by landlords, whilst still providing them with an effective means of recovering arrears due.
Article 14
In order to ensure compliance with Article 14, we have given particular consideration to the issue of whether retaining distress for rent for commercial tenants will be unjustifiable discrimination when compared with the position of residential tenants. We have also considered whether retention of distress for rent will give commercial landlords an unjustifiable advantage over other commercial debtors. These issues are considered further below.
Article 1 of Protocol 1
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international; law.
The preceding provisions shall not, however, in anyway impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
It could be argued that distress for rent is an interference with the tenant's right to peaceful enjoyment of his possessions. The proposals have therefore been developed with the intention of ensuring that the remedy reflects a "fair balance" between protecting the tenant's rights and the demands of the general interest of the community. This raises the question of proportionality as in Article 8 above, The safeguards referred to previously (paragraph 9) are also relevant here.
As part of the Enforcement Review, the Lord Chancellor asked Professor Jack Beatson QC to undertake a review of bailiff law; LCD published his report in July 2000. Professor Beatson made 46 recommendations which are attached at Annex D. These recommendations are currently being considered by an inter-Departmental working group, and LCD will cover them in the Green Paper. The introduction of a single bailiff law, encompassing certificated bailiffs, is being considered as part of the broadened Enforcement Review announced by the Lord Chancellor on 6 March. Government will consult fully on proposals arising from the Review.
Some of the issues examined by Professor Beatson, are also raised in this consultation paper. For the most part, these are concerned with regulation, fees and remedies. Where reference is made to Professor Beatson's recommendations or other outcomes, this is done without prejudice as Professor Beatson's report will be dealt with more fully in Phase Two of the Enforcement Review.
NACAB's Undue Distress, a report of their clients' experiences of bailiffs, was published last year. It was mainly concerned with private bailiffs acting on behalf of the local authority or magistrate's courts and covered both civil and criminal aspects of enforcement. The report raised important concerns about regulation of bailiffs, particularly in the private sector. One of the recommendations was that all forms of distress should be abolished. It also recommended, as an alternative to abolition of distress, greater regulation of bailiffs, affording increased protection to the public.
A copy of the report can be viewed at www.nacab.org.uk, or by contacting a local bureau for a copy.
In their preliminary work, LCD and DETR consulted the DETR Property Advisory Group (PAG), a broadly based body drawn from wide areas of the commercial property sector with a standing remit to advise the Secretary of State on land and property issues. The PAG provided views which have informed our proposals for a modified procedure. Individual members of the Group contributed data on the use of distress which has been taken into account in the initial Regulatory Impact Assessment (RIA).
Distress for Rent is a common law remedy which permits a landlord to enter tenanted property and to seize and hold goods found there until the rent is paid. It includes a statutory right to sell goods to recoup the rent due and has been supplemented and circumscribed by a number of statutory provisions. The main features of the remedy are:
Application to both residential and commercial premises, but there are greater "safeguards" on its use in relation to residential premises;
The landlord does not usually require a court order to levy distress in relation to commercial premises, but will generally need prior leave of the court to levy distress to residential premises;
It is only available to enforce payment of "rent" but many leases define or treat other payments as rent (notably service charges);
The person levying distress must be either the landlord (where he/she is an individual), or a certificated bailiff; a company or other corporate landlord must use a certificated bailiff;
The landlord/bailiff may not use force to enter the premises, but the rules on forcible entry are not entirely clear;
The general rule is that the landlord may take any goods from the tenanted property, regardless of who owns them, although there are many exceptions to this rule. There are nevertheless complicated rules about what goods may be taken and in what circumstances;
The landlord may sell the goods five days after taking possession of them. He/she must get the best price for them and, after deducting the arrears and any bailiff's costs and fees from the proceeds, hand back any surplus to the tenant;
The tenant has a number of remedies in relation to illegal, irregular or excessive distress which include recovery of goods (in some cases without a court order) and damages. A third party has more limited rights in this respect;
The landlord has a number of remedies against a tenant who seeks to avoid distress by removing their goods, which include: following the goods onto the property of third parties; damages; and, criminal offences punishable with fines and imprisonment (for the tenant).
"Self-help" in relation to distress for rent should be taken to mean that no court oversight is required to undertake this procedure.
In discussions with landlords a variety of opinions have been expressed about when distress for rent actually commences. For the purposes of this consultation paper it is suggested that distress commences as soon as a bailiff arrives on a tenant's premises with instructions from a landlord to undertake distress for rent procedure.
The perceived advantages and disadvantages of the current system obviously differ from the tenants' and landlords' perspectives.
The advantages of the current procedure include:
it is a cheap, speedy and effective remedy for the recovery of rent arrears. Most figures quoted indicate that more than 98% of distress for rent actions do not result in goods being removed and sold;
no warrant is required, therefore no judicial or court resources are required and does not entail any legal costs;
it is an effective deterrent against late payment, particularly in the retail sector;
it enables landlords to let to "marginal" business tenants (who would otherwise be denied properties because of their credit rating);
it overcomes the disadvantages that landlords would otherwise face vis-à-vis other commercial creditors in not having the sanction of removing the supply of goods or services.
The disadvantages of the current procedure include:
it treats landlords preferentially, by giving them a remedy that no other creditor enjoys, when other court based remedies are already available to them;
it can be viewed as a form of enforcement by means of coercion;
the remedy can be regarded as intrusive. Although forcible entry is not generally permitted, in practice it is difficult to prevent (see section 3.15 of the Law Commission Report);
the levying of distress is not usually open to challenge by tenants before it happens;
the tenant only has a limited amount of time for challenge after the event;
in practice there is limited scope for controlling the conduct of those who levy distress under the current certification procedure;
distress can be undertaken by a landlord who is not a certificated bailiff and hence is not subject to any regulation or monitoring;
the sale of the goods can be disproportionate to the tenant's breach of contract in not paying rent, as the goods can be difficult and expensive to replace; and
if distress is wrongly levied it may be impossible adequately to compensate the tenant after the goods have been sold.
In reviewing the distress for rent procedures it is important that we take into account a range of views and consider the implications for all concerned therefore it would be helpful if landlords, tenants and bailiffs completed the pro-formas attached at Annex E as explained in the boxes below.
Landlords
| In order to establish the actual extent to which distress for rent is used it would be helpful if landlords could complete the table, attached at Annex E1. The RIA gives some indication of costs involved in the commercial property market economy, but further information would be helpful and desirable. Any statistical information provided will not be made available other than in a summary format. |
Tenants
| In order to establish the tenant's point of view it would be helpful if tenants could complete the proforma at Annex E2. Information provided will not be made available except in summary form. |
Bailiffs
| In order to establish the economic effects on the business of certificated bailiffs it would be helpful if bailiffs could complete the proforma at Annex E3. Information provided will not be made available except in summary form. |
There are very strong arguments for the abolition of distress for rent in the residential sector and very little evidence to suggest that its retention is necessary or desirable.
The Law Commission Report favours total abolition of the remedy and acknowledges the personal upset caused to residential tenants. The Chartered Institute of Housing is very clear about its position towards the use of distress for rent believing that distress has no place in modern day housing management, and its recommended standards for rent arrears specifically state that landlords should not levy distress. In addition the National Housing Federation has a condition in its Code of Conduct (1990) that Housing Associations should not use distraint as a means of recovering rent arrears.
Currently, no application for a court order is necessary in residential cases, unless the tenancy is one that comes within Section 147 of the Rent Act 1977 or Section 19 of the Housing Act 1988. As a self-help remedy, statistical information is unavailable and would be almost impossible to obtain. Our enquiries, however, suggest that its use is minimal. The current law permitting the use of distress against tenants in their own home does not seem appropriate within the context of a modern rights based society: it is rarely if ever used, and there are adequate alternative remedies available.
Government takes the view that, even if additional safeguards were introduced, Distress for Rent would not be an appropriate or proportionate way to collect rent arrears in a residential property. We, therefore, conclude that its use in the residential sector should be abolished.
The position in respect of commercial tenancies is less straightforward. The Law Commission Report took the view that the upset caused to residential tenants applied equally to commercial tenants. However, many of their respondents said there was a major difference between residential and commercial tenants - residential tenants who fail to pay their rent do so because they are unable to do so rather than because they are unwilling. Anecdotal evidence suggests that in commercial tenancies, some delay may be deliberate and could be used to ease cash flow problems instead of obtaining a short-term loan. The abolition of distress for rent in the residential sector would afford additional protection to vulnerable members of society - for example those facing redundancy - the position is not the same for a tenant renting premises for the purpose of a commercial enterprise.
Tenants involved in commercial tenancies may be expected to have easier access to legal advice and a greater awareness of the implications of breaching the terms of a tenancy agreement than residential tenants. Nevertheless, it may be considered good practice to incorporate a reference to the potential for distress for rent as a remedy in the terms of the lease or accompanying literature. During our discussions on these proposals we were told that in many instances landlords provide their tenants with information packs covering a range of issues connected with their tenancy, including the possible remedies for arrears of rent and advice on what to do if they get into arrears.
The factors which led the Law Commission to recommend abolition of distress for rent remain and it is necessary to consider carefully the argument for and against abolition of the procedure in the commercial sector, which differ significantly from the position of the residential sector. The economic and financial implications of abolition must be taken fully into account.
The commercial property sector relies heavily on distress to recover rent arrears. It is used on a significant scale, at least 20,000 cases were commenced in the year to September 2000. However, in less than 2% of cases are goods seized and sold. Landlords express the clear view that it is both the potential use of the remedy as well as its use in practice which is effective.
Alternative remedies available to landlords in the commercial sector.
The abolition of distress for rent would mean that commercial landlords would need to recover arrears through the courts. (Part 7 of the Civil Procedure Rules). There are two options; a monetary claim for the arrears only, or the possession procedure where they can not only apply for possession of their property, but recovery of the arrears as well. New rules for housing and land are to be implemented in October, and provide for a hearing to take place within 8 weeks of a claim being issued. An application for abridgement could be made to consider whether an earlier hearing date should be given. The defendant must be served with the claim form and particulars of claim not less than 21 days before the hearing date. A tenant has 14 days, after service of the particulars of claim to file a defence.
Fees for court procedures
If cases are to be pursued through the courts, landlords will have to pay an issue fee, dependent on the size of the claim and, possibly, an enforcement fee. These fees may be recovered from the tenant if the landlord wins the case. In most claims there will be little doubt that rent is due. However, claims can and are disputed, for example there may be a counter claim on the grounds of disrepair and damages which might swallow up any rent arrears. Defendants may also ask for time to pay. For claims that are defended, landlords would incur further court fees and possibly solicitor's costs.
Advantages and disadvantages of abolition in the commercial sector
We are aware of several complaints from commercial tenants that they were completely unaware of the existence of the Distress for Rent Rules and the right of the landlord to use them until the bailiffs actually arrived on their doorsteps. If the bailiff attends and enters on the first visit, taking walking possession of goods, under distress for rent procedures a tenant is then informed that if the rent is not paid the goods may be sold within 5 days. This is the only period in which the tenant would have to challenge the procedure. If a landlord uses court procedures the tenant would be served with the claim form and would then have up to 28 days in which to challenge the claim.
The abolition of distress for rent would mean losing a very cost-effective means of pursuing unpaid rent arrears. It will also mean changes in practice to the way that landlords consider prospective tenants. For example, for marginal premises (eg. railway arches) the landlord may require much more thorough vetting procedures and substantial security deposits. This would result in less access to rented premises for those tenants who are be unable to meet very stringent requirements.
In our preliminary enquiries general concerns were raised that if a commercial tenant cannot pay their rent arrears there may be other concerns about whether their business is viable - which they should address. It opens to question that tenant's solvency.
Using a court based remedy would introduce delay, during which the tenant would remain in the property, possibly running up further arrears and could have time to remove goods thereby avoiding the consequences of enforcement. The partial RIA has indicated that the amount of successfully recovered debt through distress for rent might be in the region of £180 million pounds per annum.
This modified procedure would treat landlords differently from other creditors. We consider this justifiable because landlords are in a different position from other trade creditors, who can withhold the supply of goods or services if bills are not paid. Landlords cannot easily remove the use of the property and further arrears of rent may accrue.
| Question 1. Do you think distress for rent for commercial tenancies should be abolished? Yes or No Please give reasons. |
The following questions are aimed specifically at landlords, but all respondents are welcome to comment. We would hope that landlords have been able to complete Annex E1 as requested at paragraph 7 in Chapter One and therefore provide some indication of the use of court procedures, the following information would also be helpful.
| Question 2. Do you use court procedures to collect rent arrears in commercial tenancies? Yes or No If you answered yes, under what circumstances do you use court procedures? If you answered no, why not? |
Commercial tenancies with residential accommodation
If distress for rent were abolished in the residential sector but retained in the commercial sector, it would be necessary to consider how to treat properties which have a mixed use. The tenancy agreement or lease should normally indicate the type of tenancy involved. It is intended to include business premises with residential accommodation for example a shop with a flat above it which falls within the Landlord and Tenant Act 1954 Pt II. It is not our intention to allow bailiffs access to the residential part of the property to seize goods.
It is the Government's intention to abolish distress for rent in residential properties but the position in the commercial sector is less clear cut.
A modified distress for rent procedure for use in commercial tenancies could retain almost all of the advantages of the current procedure, particularly the self-help aspect. It could:
Distress for rent is particularly effective because it is an informal and relatively swift procedure, the costs of which fall to the tenant. A modified procedure under controlled circumstances, including notice to the tenant of the possible use of the procedure could retain these effective aspects. Substantive and procedural rules defining the remedy would be set out clearly in primary and secondary legislation.
As part of Phase Two of the Enforcement Review, LCD will explore systems across all areas of enforcement with the aim of producing structures for, and the regulation of, all civil enforcement agents, including certificated bailiffs. We want to unify bailiff law and the procedures to resolve the very fragmented position that currently exists. These proposals on distress for rent must fit with, and be a coherent part of, the overall reform.
The following proposals for a modified distress for rent remedy have been drawn up by LCD in consultation with the Department of the Environment, Transport and the Regions (DETR).
Several of the proposals are intended to ensure that the interference with the tenant's right to respect for his private life and / or his right to quiet enjoyment of his possessions, which occurs when distress for rent is levied, is proportionate to the end sought to be achieved. Overall, we consider that these measures will improve the compatibility of the distress for rent procedures with the relevant provisions of the ECHR.
| A modified regime might introduce some or all of the proposals outlined below. The following questions are designed to establish what effect each proposal would have on the current use of distress for rent. It would be helpful if respondents could comment on each of them, as well as the overall model. |
It is proposed that the modified procedure would clarify the position so that distress for rent would only be available for rent arrears and not for service or other associated charges. (Endnote 8)
Our enquiries have shown that landlords do not normally use distress for rent procedures to collect anything other that pure rent. This is an opportunity to clarify the law so that it is clear that only rent arrears may be collected under this procedure. Our intention is that distress should not be available to recover arrears of items such as service charges or insurance charges, even if the lease reserves them as additional rent. While the amount of rent due is usually clear-cut, service charges may be genuinely open to dispute, and in such cases a landlord should not use the distress procedures to put pressure on the tenant.
It is proposed that only a certificated bailiff (i.e. not landlords acting in person) would be able to undertake distress for rent procedures.
The current position is that a certificated bailiff on behalf of a landlord or a landlord, acting in person, may levy distress for rent.(Endnote 9)
A bailiff may only distrain if he or she is certificated in accordance with the Distress for Rent Rules. Before a bailiff undertakes takes distress he/she must be authorised by the landlord.(Endnote 10) An incorporated company must always use a certificated bailiff. The current remedy also allows an unincorporated private landlord (in person) to undertake distress for rent but the landlord need not be certificated or meet the same obligations as a certificated bailiff. Where a landlord is permitted to undertake distress for rent in person, they may also, after the act of distraint pass over to another person any further action to be taken post levy to sale.
We believe that the interference with the tenant's Convention rights would be more proportionate and that in general would be more appropriate to allow only certificated bailiffs to levy distress for rent and any following action.
The process of certification (or something similar) may need to be retained since several other enforcement regimes, such as those for collection of road traffic debts or non-domestic rates, require their bailiffs to be certificated under Distress for Rent Rules as a mark of probity. There has been criticism of the certification procedure for bailiffs, so as part of the Enforcement Review further thought is being given to this issue.
| Question 3. To what extent do landlords currently levy distress themselves? |
It is proposed to limit the number of people who may attend premises to undertake distress for rent to two, including the certificated bailiff, unless there is good reason for more to attend.
There has been some concern that there is little control over the number of people who may attend premises to distrain goods and that this has resulted in intimidation, particularly if the tenant (or their representative) is alone on the premises when bailiffs call. It may also be disruptive and unnecessary to have several people enter the premises as the usual practice is, in the first instance for tenants to sign a walking possession agreement rather than for goods to be physically removed.
Although we believe that that there are good reasons particularly on health and safety grounds that a bailiff should be accompanied at times. There is concern that at present bailiffs can arrive at tenants' premises perhaps with several employees and a van with the apparent intention of removing goods. The cost of this then becomes the responsibility of the tenant even when there may have been no real reason to believe that goods would need to be removed. Therefore we propose to allow the certificated bailiff to be accompanied by not more than one other person unless it is can be shown that more are necessary.
There is also an argument that only certificated bailiffs, who have experience and knowledge of the distress for rent procedures should be involved in undertaking distress for rent and it is not appropriate for unqualified people to be involved.
| Question 4. (i) How many people normally attend commercial premises to undertake a distress for rent procedure and at what stage (i.e. initial visit, removal of goods? (ii) Do you agree that only certificated bailiffs should be involved in distress for rent procedures? |
It is proposed, to restrict the time of day during which distress for rent can take place.
Currently distress for rent action must commence after sunrise and before sunset. Professor Beatson recommended that distress should only commence between 8.00 in the morning and 8.00 at night, except where the profession, trade or business is conducted at the premises in question outside of those hours (Chapter 5). This would reflect the position in the rule governing distress for indirect taxes. In the interest of rationalisation, and to provide an additional safeguard to tenants who may have residential premises co-located with the commercial property it is suggested that distress for rent should only commence between 8.00am and 8.00pm. There may be some commercial premises which operate their normal business almost wholly outside of these hours for example night clubs and so it seems reasonable to ensure that this situation is covered in the modified procedure.
| Question 5. Do you agree that, unless trade is being conducted outside these hours, distress should only be commenced between the hours of 8.00am and 8.00pm? Yes or No Please give reasons and/or suggested alternatives |
It is proposed that the right to distrain for rent may not be exercised on a Sunday, Bank Holiday, Christmas Day or Good Friday.
Currently distress for rent may not take place on a Sunday. Professor Beatson's conclusion was that only public holidays should be exempt, except where the business trade or profession is being conducted during the hours of a public holiday (Recommendation 9). To afford greater protection to tenants, particularly those on premises with attached residential accommodation, a slightly stricter requirement is desirable. Therefore we propose disallowing the practice of distress for rent on a Sunday, Bank Holiday, Good Friday and Christmas Day.
It is proposed that the issues of forcible entry and re-entry will be made clearer.
The current procedure does not allow the use of force to enter premises, but the rules on entry, in all distress cases not just those for rent, are not entirely clear. As this remedy is not subject to a court oversight (as with a warrant of execution) it is considered inappropriate to allow forced entry as part of a modified regime. The law relating to the right to enter has developed over a number of years and a summary of the legal position may be found in Southam v. Smout 1963 (Endnote 11). The right to enter has been developed from numerous cases, dealing with issues such as the unlocked or unfastened door, locked outer door, windows and other points of entry (Endnote 12). The definition of forcible entry will be considered further in the Enforcement Review, which will aim to clarify the position.
In any event, it is thought that forcible entry, that is entry other than my normal means (and re-entry in certain circumstances) in all cases will need judicial authority.
| Question 6. How could the position regarding forcible entry and re-entry be made clearer? |
It is proposed that there would be no right of entry onto the premises of third parties.
Having taken walking possession the landlord/bailiff currently has a number of remedies against a tenant who seeks to avoid payment by removing the goods. These include following the goods onto the property of third parties if they have been fraudulently removed. Entry onto the premises of a third party without a court order is considered inappropriate and could be fraught with complications as to the ownership of the goods. Preliminary enquiries indicate that the right of entry onto third party premises is not used currently. While other remedies may remain under an amended regime, landlords would have no rights of entry on to the premises of third parties to recover goods.
It is proposed that a minimum of 72 hours notice must be given to the tenant before the right to remove goods under distress for rent action arises.
Currently tenants have little or no opportunity to challenge distress. There is currently no requirement for prior notice of distress to be given to a tenant. When goods are seized, the Notice of Seizure and Inventory of Goods indicates that goods may be sold if the rent is not paid within 5 days.
We do not intend that landlords should state the exact date and time when distress is to take place as this would detract from the effectiveness of the regime significantly, but some notice would be required. It is proposed that the notice should state the consequences of failure to pay the outstanding rent including the potential use of distress. This would give the tenant the opportunity to seek advice, ensure that they are aware of the remedies available to them, and that they have a chance to dispute or pay the arrears of rent before their goods are seized.
During our discussions, it was suggested that the landlord could be required to make a formal demand. One way of doing this might be with an invoice which could perform the function of a demand for payment and give clear notice of the consequences of failing to pay, including a warning about the potential use of distress. A reference could be made to the tenant's right to apply to the court to challenge the existence and amount of the debt and to stop distraint taking place.
Some landlords allow tenants to pay their arrears in instalments before the distress stage is reached. A notice to the tenant could include an offer of an instalment arrangement as one of the ways in which a tenant might avoid the consequences of debt enforcement action including the use of distress for rent. It could also state that if the tenant is having difficulty in meeting their commitments they should consider seeking advice, for example, from their local advisory centre or the legal profession.
The proposal to give clear notice to a tenant before seizure would strengthen ECHR compatibility, Article 6 is particularly relevant here. The tenant should be able to bring proceedings if he disputes his liability to pay arrears and should be aware of his rights to do so.
As a tenancy agreement exists between the landlord and tenant, the tenant will already be aware of the arrears. The purpose of the notice is to ensure the tenant is aware of the possible action that could be taken, therefore the period of notice before seizure need not be too long. It is proposed that, notice must be issued to the tenant a minimum of 72 hours before any action to recover rent arrears is taken. A balance must be struck between allowing enough time for commercial tenants to seek advice or agree an arrangement for payment and the landlord's entitlement to recover his debt and have an effective enforcement remedy. It should be remembered here, that these are commercial premises, and that by this time rent arrears have accrued - see also our proposal that at least a quarter's rent will be overdue before the procedure can be used.
| Question 7. Do you agree that notice should be given at least 72 hours before the right to seize goods arises? What information should it include? |
It is proposed that the tenant will be able to apply to the court to challenge the existence of the debt and to seek an injunction to stop the landlord proceeding to distraint.
The above proposal is to ensure that the tenant is afforded the opportunity to stop a landlord from proceeding to seize goods if there is a genuine dispute about the existence of the arrears. We want to deter the tenant from using this procedure merely to delay the payment of arrears as this would detract from the effectiveness of the remedy as a whole. The safeguard on this would be that the tenant, on application to the court, may be required to meet the landlord's costs if the claim fails.
In order to stop the seizure of goods, while the arrears are in dispute, the tenant would also need to make an application to the court for an injunction.
| Question 8. Do you agree that a tenant should have the right to challenge the legitimacy of a landlord's demand for payment of arrears of rent where there is a genuine dispute? How should this be achieved? Should it be a court remedy? |
It is proposed that bailiffs must, in addition to showing their certificate, (permitting them to undertake distress for rent) also give clear information on the whole process.
Professor Beatson considered the need for bailiffs to give uniform information to debtors. He conclusion was that to ensure that debtors understand the process of distress, and to give them the maximum opportunity to pay their debt, bailiffs should be required to give the tenant (or responsible person) the following information as soon as possible after entering the premises:
We agree that these are reasonable requirements and are particularly important for bailiffs undertaking distress for rent.
It is proposed that 14 days notice must be given to the tenant before the sale of seized goods takes place.
In any event it will be crucial to ensure that the tenant has an effective right to challenge any distress by making an application to the court, after goods have been seized. Currently, the sale of goods must not take place until five days have passed from the date of seizure (Endnote 13).
In relation to the right of access to court contained in Article 6 of the ECHR, we believe the tenant's rights should be strengthened by giving them the ability to challenge liability for the arrears before the goods are sold. Furthermore a tenant should also be able to challenge the manner in which distress was levied or seek a proper account or damages for wrongful distress, and be given a proper amount of time to do so.
However, it should also be kept in mind that the longer the goods are in walking possession of the bailiff the greater the cost will be to the tenant, who will be required to meet the charges of the walking possession.
In order to avoid any danger of goods being sold without the tenant's knowledge, the bailiff will be required to notify the tenant of any proposed sale before proceeding to dispose of the goods.
| Question 9. Do you agree that 14 days prior notice to the tenant before any sale is permitted is appropriate? Yes or No? If not, please give reasons. |
It is proposed that distress is only to be levied when outstanding rent exceeds one quarter of the annual sum.
Currently a landlord is entitled to distrain as soon as the rent is overdue, to address issues of proportionality, it might be appropriate to introduce a rule that distress may only be levied when a minimum amount is outstanding. The amount specified should be low enough to enable landlords to recover money due before the debt gets out of hand, but not so low as to make use of the remedy unreasonable or disproportionate to the costs of recovery.
For tenants paying low rents and with small businesses even a fairly low minimum could represent a high proportion of tenants' stock if goods are seized. The problems of setting a specific figure is that rent varies widely this would prove almost impossible to set fairly. It has been suggested that the minimum outstanding before distress can be levied should be a quarter's rent. This takes into account that most commercial rents are paid on a quarterly basis in advance. Therefore it is proposed that distress may be levied only when a quarter of the annual rent is outstanding.
It is proposed that there should be a list of exempt goods, based on that used in the Insolvency Act 1986 Section 283(2) and excluding third party goods entirely.
Under distress for rent, the starting point for goods exempt from distress is that any items on the premises, including those belonging to a third party, can be taken, up to a value sufficient to cover the arrears and costs. This general rule has, however, been heavily modified by statute and the common law and a number of different privileges and exemptions now apply, including goods subject to absolute privilege and qualified privilege.
It is important to provide as much certainty as possible about exemptions to ensure adequate protection for tenants and clarify the situation for all concerned. It is also important to protect the interests of, for example, third parties from having goods sold which they may have unwittingly left on the premises. The basic starting point for any list of exempted goods is that goods should not be taken which are needed to satisfy basic domestic needs or equipment needed for personal use to undertake employment or business. Also, it is important to safeguard against any risk of domestic goods being taken, the tenant or his family may have some domestic possessions in the business premises. This is particularly relevant in mixed use (commercial and residential) premises, even though there is no right of entry to the residential property.
In considering the recommendations made by Professor Beatson, Government is currently considering Section 283(2) of the Insolvency Act 1986, as a model for use by all bailiffs. It could be considered anomalous if a landlord were able to seize and sell goods which the tenant would be entitled to retain in bankruptcy. All third party goods would be exempt from distress for rent.
| Question 10. Please comment on the appropriateness of the following list: such tools, books, vehicles and other items of equipment as are necessary for use personally by the tenant in their employment, business or vocation and such clothing, bedding, furniture, household equipment and provisions are as necessary for satisfying the basic domestic needs of the tenant and his family. |
It is proposed that a safeguard be introduced to ensure that the goods seized are commensurate in value with the amount of rent arrears and costs due.
The existing law already provides some protection from excessive distraint but may require strengthening to reflect that as a matter of principle, goods distrained should be proportionate in value to the outstanding debt. The introduction of a mechanism to ensure that goods seized are commensurate with the amount of the arrears may require that some form of valuation must take place on the premises. This will require a balance between, on the one hand a need to reinforce the present law against "excessive distraint" by constraining landlords from seizing goods likely to fetch significantly more than the outstanding debt, while on the other ensuring that goods were sufficiently valuable to cover the outstanding debt.
The advantage of such a mechanism would be that distress is not levied or goods sold when it is obvious that there is no hope of achieving sufficient value to reduce the debt substantially.
Professor Beatson made a similar suggestion (Recommendation 20) in his Independent Review of Bailiff Law, "Consideration be given to requiring the distrainor to provide the debtor with an estimate of total resale value to prevent him or her proceeding with the levy where there are insufficient distrainable goods on the premises to cover the expenses and 10% of the debt whichever is the lesser."
We have concerns that because bailiffs would be required to estimate the value of the goods on the premises they could mislead the tenants as there is no easy way to predict what the realisation of a sale would be. There is also concern that the bailiff might be left open to compensation claims under the Torts (Interference with Goods) Act if he or she got it wrong.
| Question 11. Should it be mandatory for assessment of the goods to be made on the premises so that they are not disproportionate in value to the outstanding debt? Do you have any other suggestions? |
The difficulty of implementing the above proposal is not underestimated and respondents may wish to consider the alternative of ensuring that goods are not sold unless the sum realised is likely to commensurate with the outstanding debt. That is if the goods seized are going to be sold for an amount of money which will not substantially cover the arrears owed and the bailiff fees, the goods should not be sold. The reasoning behind this is, under ordinary circumstances, the "worth" of the goods is much greater to the tenant than any money that could be raised in a public sale. It may be considered that it may be unfair to the tenant to sell goods which may not even raise enough money to pay the bailiff fees never mind the rent arrears.
It is in the favour of the tenant that he or she is aware that their goods are more valuable to them than anyone else and to the landlord who will not be successful in reducing the debt to any great extent. The disadvantage may of course be, that the longer the process takes the higher the charges the tenant will face - and they will still be in arrears.
| Question 12. Do you think that goods should not be sold unless the sum realised is likely to commensurate with the outstanding debt. |
It is proposed that the onus will be on the bailiff to get the best price reasonably obtainable when selling the goods.
The proposed or actual sale of goods also raises other issues about the duty of the bailiff to the tenant and not just the creditor. There is no statutory procedure for the sale of goods but currently the goods must be sold for the best possible price. (Endnote 14) We wish to ensure that bailiffs clearly understand their duties to the debtor, therefore the onus will be on the bailiff to get the best price reasonably obtainable in the circumstances.
At present a landlord cannot take goods in satisfaction of the arrears, he must sell them in order to raise the funds to satisfy the debt. The landlord does not have to sell the goods but if he does, the sale must be to a third party and he cannot purchase the goods himself. Again to ensure that debtor is protected we believe that this should be extend to other related parties. Therefore it is intended that the goods may not be sold to the landlord or bailiff or to any party connected to the landlord or bailiff without the consent of the debtor.
| Question 13. Do you agree that it a tenant's goods may not be sold to the bailiff or landlord or to any party connected to the landlord or bailiff without the consent of the debtor? |
It is proposed to clarify the tenant's right to bring proceedings.
It is important to clarify and improve the rights accorded to tenants under this procedure, the relevance of this to the issues raised in connection with the ECHR has already been mentioned. The tenant's right to challenge distress for rent proceedings has been mentioned throughout the consultation paper, for clarity they are set out here.
Tenants should have the right to bring the following claims:
| Question 14. Do you agree that the tenant should have these rights? |
| Question 15. Are there any other circumstances under which a tenant should be entitled to bring a proceedings? |
It is proposed that in order to bring more certainty to the liabilities that tenants may face there should be greater clarity in the fees that can be charged.
Many of the complaints received about distress for rent concern the level and nature of the fees charged. To ensure that tenants are not unfairly prejudiced and that adequate protection is in place, closer regulation is almost certainly needed.
Statutory scales are laid down for almost all types of distraint, including road traffic debts, Council Tax debts and non-domestic ratings debts to name but a few. The fees chargeable under distress for rent can be found at the Distress for Rent Rules 1988 S.I. No. 2050 Appendix 1 (Annex B).
Phase Two of the Enforcement Review will be setting out a number of models for a new enforcement structure. One of the issues that will be considered is the fee structures. Decisions made by LCD about bailiffs' fees as a consequence of the Enforcement Review and subsequent consultation, may affect fee arrangements for distress for rent in the long term. The scope for abuse of fees and how to limit that scope should be considered carefully by all respondents.
In the Independent Review of Bailiff Law Professor Beatson considered the question of charges and sought views on the possibility of rationalisation and harmonisation of fees for all bailiffs (Chapter 14 - Statutory Charges). He made no specific recommendation as he concluded that the question of fees was so closely connected with the regulation of bailiffs that it was not possible to make detailed recommendations without knowing what the regulatory framework would be.
One of the conclusions which did emerge from Professor Beatson's consultation was that uniformity of fees for all types of enforcement would be highly desirable. There was, however, less agreement about the basis for the calculation. For example, whether they should be calculated as a percentage of the value of the debt or of the goods seized. Indeed, it was questioned whether a fee based, wholly or in part, on the value of the debt made the system open to abuse.
Uniformity of fees across all areas of enforcement may be desirable but we are concerned about how feasible that would be. At this stage of the Enforcement Review, we believe, the principles of fee setting are more important. There are two different relationships which need to be considered. First, there is the relationship between the bailiff and the debtor and what is reasonable for the bailiff to recover from the debtor. Secondly, there is the contractual relationship between the creditor and the bailiff and what charges may be agreed as part of that relationship.
It will be necessary to ensure that there is firstly, clear guidance on fees and charges for the benefit of landlords, tenants and bailiffs and secondly, that the guidance affords protection to the tenant. The following paragraphs explore some issues regarding fees on which views would be welcome and respondents are invited to consider what should be the main principles of setting fees for distraint.
There are too many complaints about bailiffs' charges which seem to indicate a tendency to exploit what they may lawfully be permitted to do but for which there is little evidence of a real need for in a particular e.g. fees charged for a van when no removal took place.
Earlier in this Chapter we also discussed information that must be given to the debtor. A tenant must be clearly told in advance what fees and charges they will be responsible for and at what point in the procedure they become chargeable.
The following paragraphs discuss some of the more detailed aspects of fees which respondents may wish to keep in mind when thinking about the principles of fee setting.
Bailiffs undertaking distress for road traffic debts may charge £10 for preparing and sending a letter advising the debtor that the warrant has been issued and requesting the total sum due. Respondents may consider that introducing a set fee for this act in distress for rent procedures would be appropriate.
A charge can also normally be made for visiting premises with a view to making a levy even if the levy is unsuccessful. In distress for rent this is normally included under "reasonable charges and expenses". Consideration may be given to introducing a flat fee for this and rules governing when it would be appropriate to make this charge. For example, it might be appropriate when a levy is not made because the tenant pays the arrears. On the other hand, it might be considered inappropriate to make these charges if the procedures go to the full levy stage.
Distress for rent appears to be one of the few types of distraint in which a bailiff can charge for an unlimited number of visits made with a view to levy even where the levy does not take place. Most statutes set a limit to the number of visits where a levy is not made to ensure that bailiffs cannot maximise fees by making repeated unnecessary visits e.g. when they know the tenant is absent.
We invite respondents to consider the following questions:
| Question 16. What do you think should be the main principles behind setting fees and charges for the distress for rent procedure? |
| Question 17. How should those principles take into account the different financial relationships that bailiffs have with firstly the tenant, and secondly the landlord? |
| Question 18. Should these principles be used to set out all fee scales or a single fee scale? |
| Question 19. Should any fee scale or scales be regulated? |
| Question 20. How could the existing fee structure be improved? |
It is proposed that any remedies against the tenant for interfering with goods subject to walking possession should be ordinary compensatory damages.
Tenants are at present subject to more severe remedies if they interfere with the distraint process, than are landlords who distrain improperly. A tenant could in theory be committed to prison for interfering with the goods, whereas landlords who distrain improperly are likely only to be required to pay damages.
Again the question of penalties was considered in detail in Professor Beatson's Review (Chapter 15), which need to be taken into account as part of the Enforcement Review.
Most goods are presently taken under a Walking Possession Agreement where the tenant signs an agreement not to interfere with the goods. Rescue is the term given when the owner of the goods, or another person, takes away the goods after they have been seized. If the goods have been removed by the bailiff and impounded, retaking them is termed pound breach. It is lawful to rescue goods if the distress was illegal. But pound-breach, or the rescue of goods which have been lawfully distrained, is a statutory tort under section 3 of the Distress for Rent Act 1689 as amended by Schedule 2 of the Administration of Justice Act 1965. The remedy under the Act is treble damages. It is thought that pound-breach is largely obsolete.
The remedy itself is rarely used and it is even more rare that a judge would award a landlord treble damages. In addition in November 1999 the Government announced that it had decided not to take forward the Law Commission's proposal for legislation on exemplary or punitive damages. In these circumstances we do not consider that the current remedy for treble damages should continue. If we were to revoke this section of the 1689 Act we must consider what remedies should apply to ensure compliance with a walking possession agreement.
For reasons of proportionality and in order to ensure that excessive penalties do not increase the debt unduly the penalty for a tenant interfering with walking possession could be ordinary compensatory damages, that is the worth of the goods. This may weaken the effectiveness of the procedure, but any other remedy may give an unjustified windfall to the landlord.
| Question 21. Do you agree that section 3 of the Distress for Rent Act 1689 as amended by Schedule 2 of the Administration of Justice Act 1965 should be revoked? |
| Question 22. Do you agree that ordinary compensatory damages would be appropriate for interfering with walking possession? |
| Question 23. Are there any other penalties which would be appropriate for a tenant for interfering with walking possession? |
It is proposed that the remedies which a tenant is entitled to take against the landlord who distrains improperly should be equal to the liabilities to which a tenant is subjected for interference with walking possession.
The issue of remedies available to tenants against bailiffs (and creditors including landlords) will be considered further in Phase Two of the Enforcement Review. It is likely that any remedies introduced as a result of reviewing bailiff law will include those available for distress for rent.
As a matter of principle we will be seeking to ensure that the liabilities faced by the landlord for distraining improperly are commensurate with the penalties faced by a tenant who interferes with walking possession.
Annex B includes the Rules as amended by 1999 (SI. 1999 No. 2360), The Distress for Rent (Amendment) (No. 2) Rules 1999 (SI. 1999 No. 2564), The Distress for Rent (Amendment) (No. 3) Rules 1999 (SI. 1999 No. 3186), The Distress for Rent (Amendment) Rules 2000 (SI. 2000 No. 1481), The Distress for Rent (Amendment) (No. 2) Rules 2000 (SI. 2000 No. 2737) and includes Appendix 1 only.
The Lord Chancellor's Department will publish a Green Paper on the structure and regulation of enforcement and civil enforcement agents, together with a single piece of bailiff law in late Spring 2001.
The Review of Civil Enforcement was announced by the Lord Chancellor in March 1998
Landlord and Tenant: Distress for Rent, Law Com. No.194, London:HMSO (February 1991)
Undue distress: CAB clients' experience of bailiffs, National Association of Citizen's Advice Bureaux, NACAB E/2/2000.
Professor J. Beatson QC, Independent Review of Bailiff Law: A Report to the Lord Chancellor, Lord Chancellor's Department, July 2000. The terms of reference of this Review were, "to review the powers of bailiff (county court and private sector) to determine what changes to their powers would be needed to enhance the effective enforcement of civil court judgments and to increase uniformity& " See Consultation Paper, paragraph 1.1.
The Property Advisory Group is a broadly based body drawn from the commercial property sector with a standing remit to advise the Secretary of State on land and property issues
There may be some additional issues arising from this on how service and other additional charges which are often described as "additional rent" in commercial leases are defined by law.
http://www.hmso.gov.uk/si/si1988/Uksi_19882050_en_1.htmSymonds v Kurtz (1889) 61 LT 559.
Southam v. Smout [1964] 3 All ER 104
The related case law may be found in Ryan v. Shilcock. (1851) 7 Exch 72 at 75, Grunnell V Welch [1906] 2 KB 555, American Conc. Must. Corp. v. Hendry. (1893) 62 LJQB 388, Semayne's Case (1604) 5 Co Rep 9/a, Sandon v. Jervis (1859) E.B. & E. 935, Attack v. Bramwell (1859) B & S 520 and Nash v. Lucas (1867) L.R. 2 QB 590 amongst others.
Distress for Rent Act (1689) S1.
General principles of consultation
The criteria in the Code of Practice on Written Consultation issued by the Cabinet Office is as follows:
Timing of consultation should be built into the planning process for a policy or service from the start, so that it has the best prospect of improving the proposals concerned, and so that sufficient time is left for it at each stage.
It should be clear who is being consulted, about what questions, in what timescale and for what purpose.
A consultation document should be as simple and concise as possible. It should include a summary, in two pages at most, of the main questions it seeks questions on. It should make it as easy as possible for readers to respond, make contact or complain.
Documents should be made widely available, with the fullest use of electronic means (though not to the exclusion of others), and effectively drawn to the attention of all interested groups and individuals.
Sufficient time should be allowed for considered responses from all groups with an interest. Twelve weeks should be the standard minimum period for a consultation.
Responses should be carefully and open-mindedly analysed, and the results made widely available, with an account of the views expressed, and reasons for decisions finally taken.
Departments should monitor and evaluate consultations, designating a consultation co-ordinator who will ensure the lessons are disseminated.
Consultation Co-ordinator
If you have any complaints or comments about the consultation process, you should contact the Lord Chancellor's Department's consultation co-ordinator, Bruce Eadie, on 020-7210 1344 or email him at beadie. Alternatively, you may wish to write to the address below:
Bruce Eadie
Head of Corporate Services Secretariat,
Room 9.54
Lord Chancellor's Department
Selborne House
54-60 Victoria Street
London SW1E 6QW
