Self help - DIY justice

Tempted to take the law into your own hands? The ancient doctrine of self-help still has relevance today.

Travelling home on a train a few days ago, I was disturbed by a group of youths making noise and trouble with fellow commuters. I was so incensed by the baiting of one old chap and the young girl opposite him that I found myself not only remonstrating, but grabbing two of them as they ran amok. I was fortunate to have a fellow-spirited commuter act with me. After a struggle we pulled the emergency cord and had the yobs escorted from the train.

This led me to ponder the circumstances in which the law allows self-help measures to he taken. There is a long history of self-help in law, reaching back to when legal enforcement procedures were woefully inadequate.

Many ancient self-help remedies have been overtaken by modern procedures, but there remain a number relevant to construction, such as seizing materials, removing materials, suspending work, ejecting contractors and set-off.

Seizing materials

The ancient remedy of "distress damage feasant" - the right to seize and restrain a thing that has done damage to land - was affirmed by the Court of Appeal last year in Arthur v Anker. The case concerned a challenge to the right of the owners of a car park to clamp vehicles that had not paid the parking fee. The court held this method of self-help to be legitimate.

Where something is wrongfully brought on to land and causes damage, the owner of the land has the right to seize it until compensated. So, if an unsuccessful tenderer unloaded paving across the site entrance, the site owner could clear the paving and keep it until compensated for the damage that had been caused, including the cost of clearing it away.

Removing materials

Does a contractor have a right to remove materials for which it has not been paid? One has to determine whether the materials have been fixed to the land. If they have, they are legally part of the land, and belong to the owner, regardless of any retention of title clause. As such, the supplier has no right in remove them. Where the materials are unfixed, however, the supplier, in the usual course of events, may remove them.

Suspending work

If the contractor is working under a letter of intent with no binding contract in place, then it is usually entitled to cease work when it chooses. However, its work will be valued on a quantum meruit basis, so recovery may be much diminished if it is left unfinished.

Soon, all contractors will have a statutory right to suspend performance following suitable notice under section 112 of the Housing Grants, Construction and Regeneration Act 1996.

Ejecting a contractor

It is not uncommon for a contracting party to become persona non grata and no longer entitled to be on site. What if it refuses to go? The law allows the ejection of trespassers, subject to provisos as to breach of peace and use of reasonable force.

Set off

Under our general law, set-off is allowed without a trip to the court to sanction approval. For example, most standard forms of contract permit the employer to set off certain sums against the amount certified by the contract administrator, provided the set-off has been quantified and that it constitutes a debt at the time the set-off takes place.

Set-off is, perhaps, the most common form of self-help and likely to be so for many years to come. Be warned, however - section 111 of the Construction Act will restrict the right of set-off in construction contracts, requiring parties to give certain notices to protect their right to set-off.