Vaughan v McKenzie [1969] 1 QB 557

The judgment debtor assaulted the bailiff and was prosecuted in the magistrates' court for assault upon a county court officer in the execution of his duty but the case was dismissed by the magistrate.

The bailiff appealed to the High Court

Judgment of Lord Parker J:

"This is an appeal by way of case stated from a decision of the stipendiary magistrate for the City of Leeds, dismissing an information preferred by the appellant against the respondent for that she, on May 22nd 1967, did assault the appellant, an officer of the Leeds county court, while in the execution of his duty as such officer, contrary to section 30 of the County Courts Act, 1959.

The short facts giving rise to this case, and a case which raises an important principle, are these: on May 51 last year a warrant of execution against the goods of the respondent was issued by the Leeds county court, which was for some 91 in respect of costs.

The appellant, who is a bailiff of the Leeds county court, went with another bailiff on May 22nd to the house where the respondent lived. When they got there, the house was closed, the respondent being away. The bailiffs waited, and later the respondent returned with her child.

Outside the front door, the appellant and the other bailiff told the respondent that they were bailiffs, and had come to levy execution on her goods. It is true that no warrant was produced to her, but it is quite clear that she knew full well who they were, and what they had come about, because she immediately told them that she had written to the county court and the Lord Chancellor regarding these costs, and she said she would not admit them to the house.

What happened then was that she and the child entered the house and immediately attempted to shut the door, but the other bailiff, Richmond, got his foot in the door and pushed against the door, the respondent on her side pushing to keep him out.

The appellant came to the assistance of Richmond, and both of them forced the door open with the object of gaining entry to the house, whereupon the respondent, finding a milk bottle handy, picked it up and struck the appellant on the head with the bottle of milk, whereby he sustained a one-inch long cut requiring three stitches. Those are the short facts of this case.

The magistrate stated his opinion in this form:

"That the appellant and Richmond were not justified in law for the purpose of gaining entry to execute a civil warrant, in attempting to push open the door which the respondent was endeavouring to close against them and that they were accordingly trespassers; (h) that, in any event, the appellant and Richmond, not having shown or read the warrant to the respondent, were not acting in the execution of their duty."

So far as that latter reason is concerned, I am quite satisfied that the magistrate was wrong.

This was a case where she plainly knew that they were bailiffs, and plainly knew the object with which they had come, and the fact that the warrant was not produced was not, in the circumstances, fatal to these proceedings.

The real question here is whether the bailiffs were justified in attempting to push open the door by force against the will of the respondent. I confess that in the course of the argument my own feeling was that the magistrate had come to a right conclusion.

It is to he observed that in Southam v Smout concerning the mode of entry which is lawful,42 a passage occurs in the judgment of Lord Denning MR where, after referring to Nash v. Lucas, he said:

"Sir Alexander Cockhurn J said that the later authorities say you may open a door which is only fastened by a latch He thought that was going a very long way, further than the American courts had done, but the authorities were limited to the case where the door is shut but can be opened without violence."

I confess I find it difficult to see what the real difference was here between a door which is momentarily opened but sought to he closed and can only be fully opened by violence, and a door which is shut and which can only he opened by violence.

However, in the course of the proceedings Winn LJ, with his usual industry, found the case of Broughton v Wilkerson.

The facts of that case were almost identical with the present; there the bailiff went to the respondents house, he knocked at the outer front door, which was locked; the respondent came to the door, opened it and held it until they had an altercation; the appellant then took hold of the door, put his foot between it and the door post and shoved his shoulder against it to obtain entry; he did not produce the warrant or tell the respondent what his business was, but the respondent knew him well and said: "You, you shan't come in" and shoved him out.

Sir Alexander Cockburn CJ said:

"The Justices seem to give a wrong reason for their decision, but the decision was right. The officer had no right to force his way into the respondent's house, which was the respondent's castle. Whether the officer was known or not this was illegal, and therefore he was not in the execution of his duty at all when he was assaulted. He seems to have provoked the assault. I think as he was clearly not in the execution of his duty our judgment must he for the respondent."

Lush J said:

"Every man's house is his castle. That has been settled long ago, and a bailiff cannot force his way inside to lay execution for a debt. It is impossible to read this case and say that the bailiff was in execution his duty."

Further industry, this time on the part of Mr. Bridge, has found that that has been approved in Rossiter v Conway.

That case differed in certain immaterial respects; it was a constable executing a warrant of distress; that does not affect the matter, and instead of a foot between the door and the door post it was an arm.

The court in that case held that the constable was not acting in the execution of his duty, and relied upon and approved the earlier case of Broughton v Wilkerson.

Both those cases are binding upon this court, and I have no doubt in those circumstances that this appeal must be dismissed.

Winn LJ:

"I agree. It seems to me that the essential criterion in any such situation is whether the householder has left a means of entrance available for me without the employment of any degree of force. As Lord Parker J has said, this is a case where a foot was interposed between the door post and the door itself. In the other two cases arms were thrust in, but it is perfectly clear that whilst in those cases some force was used, in neither of them was entrance being sought vi et armis

Summary

Ms McKenzie was perfectly entitled to resist entry being made against her will and if force is used, she could oppose it with reasonable force.

This debunks the common myth a bailiff can gain entry by breaking open a door or use a foot to stop a door being closed.

A bailiff placing a foot in a door is a trespasser and any levy attempted after this is invalid and the entry to the premises may be resisted.

The debtor cannot initiate violence but the degree of resistance may be matched to the force being used to try to get in. Weaver v Bush [1795] 8TR, Simpson v Morris [1813] 4 Taunt 821, Polkinhorne v Wright [1845] 8QB 197.

If the entry is peaceful but without permission, a request to leave should always be made first. Tullay v Reed [1823] 1 C&P 6.

Another occupier of the premises or an employee may also take these steps: Hall v Davis [1825] 2 C&P 33.

The bailiffs to show his warrant, he has ceased in his execution of his duty.**

Enforcement agents must on request show the debtor his identity and his authority to enter the premises. Paragraph 26(1) of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007