DISTRESS DAMAGE FEASANT: TORT REMEDY

DISTRESS DAMAGE FEASANT.

This is a remedy that is an alternative to an action for damages provided for in Section 7(1) of the Animals Act 1971.

It is a self help remedy available to an occupier of land allowing or giving him the rights to seize and retain someone else’s chattel¹ in order to obtain compensation from the chattel owner for any ‘damages’² caused by that chattel.

It may however be time for the legislation to be enacted as this remedy is a very old - in effect almost a medieval branch of the law that goes back to when England primarily was an agricultural country and it related to cattle or animal trespass, primarily cattle trespass. For this reason, it may not adequately deal with the trespass and wheel clamping of vehicles despite the fact that cases of such nature have been referred to and awarded this remedy. In Annet Auther and another v Thomas Anker³ The Court of Appeal dismissed an appeal by the plaintiffs, against the decision of Judge Anthony Thompson QC, 7 May 1993: (i) dismissing their claim against the defendant for compensation and damages for malicious falsehood and tortious interference with the plaintiffs' car; and (ii) allowing the defendant's counterclaim for pounds 660 in compensation for the cost of wheel clamps and padlocks removed by Mr Arthur, and for an assault by Mrs Arthur.

The plaintiffs' car had been wheel clamped by the defendant, an employee of Armtrac Security Services acting as an agent of the leasehold owners of a private car park, after they had parked it in the private car park without authority, despite having seen a notice erected by Armtrac to the effect that vehicles left there without authority would be wheel clamped and a fee of pounds 40 charged for their release. Although he later accepted the fee was reasonable, plaintiffs refused to pay it. Following an acrimonious argument, during which they assaulted the defendant, both plaintiffs left. But that night the plaintiffs returned and succeeded in releasing the car. When the defendant returned next morning, both car and clamps had disappeared.

Against the plaintiffs' claim for compensation and damages, the defendant successfully advanced two defenses. First was the old medieval self-help remedy of "distress damage feasant". Although aimed at livestock, the judge thought it could be adapted to apply to a car causing damage by using up space where it was at a premium.

1..A chattel could be cattle or an unauthorized parked vehicle.

2.       These include destruction from cattle belonging to one person feeding and treading down grass, corn or other production of the earth upon the land of another person; unauthorized parking of a vehicle; unlawful entry and abusing the right of entry on someone else’s land.

3.       [1995] QB 564.