Statute Law Repeals - Law Commission - Ministry of Justice

2.9 In our consultation paper we indicated that, notwithstanding the enactment by
parliament of the Tribunals, Courts and Enforcement Act 2007, 10 the breadth of
the 2007 Act is insufficient to render chapter 1 of the Statute of Marlborough
unnecessary. The 2007 Act, in Part 3, provides a new code for the recovery of
debt in place of an individual’s right to distrain on a debtor’s goods (and abolishes
the old common law rules relating to replevin and distraint for rent arrears).
However, chapter 1 of the Statute criminalised the taking of “revenges” or the
levying of distress without first obtaining a court order. By contrast the 2007 Act
criminalises only the procedural aspects (acting as an enforcement agent without
authority) rather than the substantive behaviour of the actor (the taking of distress
unlawfully). On that basis we considered that chapter 1 was not spent. 11
2.10 We did, however, consider that chapters 4 and 15 on distress were in the course
of being overtaken by events. Chapter 4 prohibited the taking of distrained goods
or belongings out of the debtor’s home county, particularly where the removal
was carried out by a landlord against his tenant. The chapter provided that
distresses in general were to be reasonable in nature. We took the view that a
combination of justice today being administered on a national rather than a
localised basis, and the new regime in the 2007 Act, would deliver sufficient
protection. However, at the time of publication of our consultation paper the
provisions of the 2007 Act had not been brought into force. That remains the
position. The Ministry of Justice has not been able to provide an assurance that
the necessary commencement orders will be in place by the time the present
Statute Law (Repeals) Bill receives royal assent. 12
2.11 The same problem occurs in the context of chapter 15. The Statute made it
unlawful for anyone to distrain on the public highway. Under the 2007 Act an
authorised enforcement agent may secure a debtor’s goods found on a highway
and, using reasonable force sanctioned by court warrant, take control of the
goods. But, until the 2007 Act provisions are brought into force, the existing
prohibition is not duplicated and the Statute is not superseded. The issue of
distress could usefully be revisited when the next Statute Law (Repeals) Bill is
prepared for parliament.
10 2007 (c.15).
11 The Court of Appeal drew attention to the fact that chapter 1 was still live law in Imerman v
Tchenguiz [2011] Fam 116 (CA) at para 117 per Lord Neuberger of Abbotsbury, MR, and
that it was “illustrative of the law’s long-standing aversion to unregulated self-help”.
12 In January 2012 the Ministry of Justice (MoJ) announced proposals for a new legallybinding
regulatory regime for bailiffs, which proposals were to be the subject of public
consultation. The MoJ consultation paper CP 5/2012 was published on 17 February 2012.
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