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||Neutral Citation Number:  EWHC 1270 (QB)
||Case No: WF003166/09
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||28 May 2010
B e f o r e :
THE HONOURABLE MR JUSTICE EADY
|| HUNTRESS SEARCH LIMITED
||- and -
- and -
DSI FOODS LIMITED
Christopher Wilson (instructed by Sherwins) for the High Court Enforcement Officer (Claire Sandbrook)
Patrick McMorrow (instructed by Evans Dodd) for the Interpleader Claimant
Hearing date: 11 May 2010
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Eady :
- This appeal concerns the circumstances in which it is or may be appropriate to grant relief to the High Court Enforcement Officer under the long established jurisdiction of the court under RSC Ord 17, now to be found in Schedule 1 to the CPR. In this instance, such relief was refused by Deputy Master Hoffman on 29 October 2009. The enforcement officer, Mrs Claire Sandbrook, had sought an order restraining the Interpleader Claimant, DSI Foods Ltd, from bringing a claim against her. She contends that he should have exercised the jurisdiction and granted a "no action" order.
- Changes in the law of execution were introduced in the Courts Act 2003. It was provided in s.99 that:
i) Schedule 7 contains provisions about High Court writs of execution.
ii) Any rule of law requiring a writ of execution issued from the High Court to be directed to a sheriff is abolished.
- The Schedule provides that England and Wales is to be divided into districts to be specified in regulations: see s.108(6) of the Act; para.12 of Schedule 7; and the High Court Enforcement Officers Regulations 2004 made in accordance with those statutory provisions. Enforcement officers are individuals authorised to act as such by the Lord Chancellor and they will be assigned to one or more districts. It is provided in paragraph 3 of the Schedule that:
i) A writ of execution issued from the High Court may be directed –
a) if only one enforcement officer is assigned to the district in which the writ is to be executed, to that officer,
b) if two or more enforcement officers are assigned to that district, to those officers collectively, or
c) to a named enforcement officer who, whether or not assigned to that district, has undertaken to execute the writ.
ii) In this paragraph "writ of execution" does not include –
a) a writ of sequestration, or
b) a writ relating to ecclesiastical property.
It is provided that enforcement officers are to have the traditional powers of high sheriffs. The relevant provision is contained in paragraph 4(2):
"The relevant officer has, in relation to the writ, the duties, powers, rights, privileges and liabilities that a sheriff of a county would have had at common law if –
(a) the writ had been directed to him, and
(b) the district in which it is to be executed had been within his county."
- In accordance with the transfer of powers generally, the traditional protection afforded to high sheriffs by the provisions of RSC Ord 17 is correspondingly available to enforcement officers appointed in accordance with the 2003 legislation. It is necessary first to consider the terms of r.2:
"Claim to goods, etc., taken in execution
(1) Any person making a claim to or in respect of any money, goods or chattels taken or intended to be taken in execution under process of the court, or to the proceeds or value of any such goods or chattels, must give notice of his claim to the sheriff charged with the execution of the process and must include in his notice a statement of his address, and that address shall be his address for service.
(2) On receipt of a claim made under this rule the sheriff must forthwith give notice thereof to the execution creditor and the execution creditor must, within seven days after receiving the notice, give notice to the sheriff informing him whether he admits or disputes the claim.
An execution creditor who gives notice in accordance with this paragraph admitting a claim shall only be liable to the sheriff for any fees and expenses incurred by the sheriff before receipt of that notice.
(3) Where –
(a) the sheriff receives a notice from an execution creditor under paragraph (2) disputing a claim, or the execution creditor fails, within the period mentioned in that paragraph, to give the required notice, and
(b) the claim made under this rule is not withdrawn,
the sheriff may apply to the court for relief under this order.
A sheriff who receives a notice from an execution creditor under paragraph (2) admitting a claim made under this rule shall withdraw from possession of the money, goods or chattels claimed and may apply to the court for relief under this Order of the following kind, that is to say, an order restraining the bringing of a claim against him for or in respect of his having taken possession of that money or those goods or chattels."
- Mode of application is dealt with in r.3:
"(1) An application for relief under this Order must be made by claim form unless made in an existing claim, in which case it must be made in accordance with CPR Part 23.
(2) Where the applicant is a sheriff who has withdrawn from possession of money, goods or chattels taken in execution and who is applying for relief under rule 2(4) the claim form must be served on any person who made a claim under that rule to or in respect of that money or those goods or chattels, and that person may attend the hearing of the application.
(4) Subject to paragraph (5) a claim form or application notice under this rule must be supported by evidence that the applicant –
(a) claims no interest in the subject-matter in dispute other than for charges or costs,
(b) does not collude with any of the claimants to that subject-matter; and
(c) is willing to pay or transfer that subject-matter into court or to dispose of it as the court may direct.
(5) Where the applicant is a sheriff, he shall not provide such evidence as is referred to in paragraph (4) unless directed by the court to do so.
(6) Any person who makes a claim under rule 2 and who is served with a claim form under this rule shall within 14 days serve on the execution creditor and the sheriff a witness statement or affidavit specifying any money and describing any goods and chattels claimed and setting out the grounds upon which such claim is based.
(7) Where the applicant is a sheriff a claim form under this rule must give notice of the requirement in paragraph (6)."
The application for relief in this case was made in the existing claim brought by the judgment creditor and thus in accordance with Part 23.
- It is provided in r.4 that an application for relief under this order by an execution officer should be made to a master.
- Reliance is placed in this case by the enforcement officer upon the general power contained in r.8(1) to the effect that the court may make such order as to costs or any other matter as it thinks just.
- DSI's complaint relates to the conduct of the officers who attended to execute at their premises on 29 May 2009. It is in respect of that claim that the execution officer sought relief from the Deputy Master. There is relatively little authority giving guidance as to when such relief should be granted, but counsel helpfully invited my attention to a number of Court of Appeal decisions. In Smith v Critchfield (1885) 14 QBD 873, 878, Brett MR summarised the position in this way:
"It seems to me that the sheriff is entitled to protection in respect of the whole of the act which through error he has wrongfully done under the writ, that is, in respect of his having entered the house and seized the goods. What do the authorities say? In the case of Winter v Bartholomew 11 Ex 704; 25 LJ (Ex) 62 it is said that the sheriff may be protected in such a case as this in respect both of the trespass to the land and of that to the goods where no real grievance has been sustained by the claimant. It is obvious that that cannot mean where there is no legal wrong, because by the hypothesis a tortious act must have been committed. It is clear, therefore, that by 'no real grievance' is meant no substantial grievance beyond the mere entry and seizure of the goods, such as might exist if the sheriff's officer were guilty of insolent or oppressive conduct in excess of his duty, and not justified by the writ. The consequences of the contention for the claimant would be absurd. The sheriff cannot seize the goods without entering, and in so doing he is only doing what is absolutely necessary for the purpose of seizing the goods; but it is contended that, though in respect of the seizure he may be protected, in respect of the entry he cannot be protected. It would follow that in every case of this kind, except where he happened to seize the goods in the street, he would be liable to an action of trespass for the entry on the land, and the protection intended to be given to sheriffs by the enactments relating to interpleader would be nugatory, for in every such case there would be an action against the sheriff."
- A similar approach was taken more recently by the Court of Appeal in 1977. In Neumann v Bakeaway Ltd  1 WLR 1016 (note), it was recognised that the appropriate test to apply was whether the claimant had suffered a "real and substantial grievance". This exercise should involve a consideration of all relevant facts surrounding the execution. As Lane LJ put it, at p.1023, "It is the quality of the sheriff's admitted wrong which is relevant". Sir John Pennycuick, ibid, observed:
"I abstain from expressing a concluded view as to the meaning and scope of the expression 'substantial grievance'. The authorities cited to us on this question do not seem to me wholly easy to reconcile."
Despite those concerns, it is necessary in the present case to address the scope of that expression.
- It would appear from the authorities, so far as they go, that the court will be looking for any exacerbation of the admitted wrong on the part of the enforcement officer. This may, no doubt, include conduct which can be characterised in the words of Brett MR as "insolent or oppressive conduct in excess of his duty". That is not to say, however, that only such conduct will qualify. In the Neumann case, the Court of Appeal was prepared to acknowledge that a sale of the claimant's goods at a significant undervalue could also give rise to a substantial grievance. Yet there is no exhaustive definition. Each case must turn upon its own facts. In particular, one should not be unduly tied to the (slightly dated) words of Brett MR as though they appeared in a statute.
- In the present case, the issue I have to resolve is whether the conclusion of the Deputy Master, which led him to decline the relief sought, can be sustained. It seems to me that this will turn upon whether there was evidence before him entitling him to conclude that DSI could properly be said, in the light of the limited case law available, to have incurred a "real and substantial grievance".
- It is necessary always to have in mind the nature of the appellate jurisdiction I now have to exercise. It is by way of review and not rehearing. Did the Deputy Master err in law or step outside the range of reasonable conclusions open to him on the facts? Or was there injustice by reason of procedural or other irregularity?
- Before I turn to the hearing before the Deputy Master, I need to explore the background to the execution. The Claimant, Huntress Search Ltd, obtained judgment against the Defendant, Canapeum Ltd, in the Bradford County Court on 24 March 2009 for the sum of £4,872.03 together with interest and costs. The judgment was transferred on 1 April of last year to the High Court for the purposes of execution and a writ of fi fa was issued on 6 April for the judgment sum. A copy of the writ was placed before me, from which it is apparent that the "address for enforcement" was described as Unit 8, Victoria Industrial Estate, Victoria Road, Acton. That was the address to which the Claimant's invoice (in respect of staff recruitment services) had originally been sent.
- It became apparent during the course of the hearing that some of the Deputy Master's criticisms directed at the enforcement officer were concerned with the fact that the execution took place at Unit 5 rather than Unit 8. As he put it, according to McMorrow's note of his judgment:
"Firstly, the Enforcement Officer went to the wrong address. In an excess of zeal, the Enforcement Officer went into Units 5/6. He should have gone into Unit 8."
There was some debate between counsel as to whether the enforcement officer's authority was confined by the box on the form stating "the address(es) for enforcement" or whether that was merely information for the assistance of the enforcement officer – not in any way limiting or circumscribing her authority to seize goods belonging to Canapeum Ltd wherever they might be found in her district (corresponding to a high sheriff's bailiwick). This is a nice point to which I shall return in due course, although I doubt whether it is essential to the resolution of the current appeal.
- According to the evidence of Mr Minesh Amin, the company secretary and financial controller of DSI:
"The first the Company became aware of the judgment obtained by the Claimant was when a gentleman who represented that he was an officer of the Court attended at the Company's business premises sometime around the middle/end of April 2009. The representative (whose name I am not able to recall) had no details of the debt with the exception of the creditor's name (Huntress Search Ltd) and that the judgment had been obtained against the Debtor. I advised this representative that this debt had nothing to do with the Company and that he should make contact with the Accountants, Begbies Traynors, whom I was aware had been appointed Administrators of NJ Catering Ltd (previously known as the Production Kitchen Ltd) and from whom the Company had acquired the lease of the premises at Unit 5/6 Victoria Industrial Estate, Victoria Road, London W3 2UU (the "premises") and assets of the business. The Debtor was and is a wholly owned subsidiary of NJ Catering Ltd and has, so far as I am aware, at all times been a dormant company."
- It is recounted in a witness statement of Mr Christopher Badger, served on behalf of the enforcement officer, that a conversation did indeed take place between the relevant enforcement officer and Mr Minesh Amin on 5 May of last year. That may very well be the correct date. At all events, Mr Badger accepts that Mr Amin referred the person concerned to Begbies Traynor and explained that Canapeum Ltd had been placed in administration on 9 February. It seems that enquiries were made of Begbies Traynor on 22 May 2009, but the relevant person said that they had no record of dealing with the affairs of a company called Canapeum Ltd. This may be explicable on the basis that, strictly speaking, Begbies Traynor had been appointed administrators of NJ Catering Ltd, the parent company to Canapeum.
- The background to DSI's involvement at Unit 5 and Unit 6 is dealt with in the evidence of Mr Deepak Manghnani, who is a partner in the firm of Evans Dodd, DSI's solicitors:
"The business of the Company is the production of in flight food for delivery to airlines. The lease of the premises and assets of the business were acquired on or about 9 February 2009 from the Administrators of NJ Catering Ltd (previously known as The Production Kitchen Ltd). A copy of the title for the premises and the agreement for purchase appears [in the bundle]. It will be noted from the agreement that the Company acquired all fixtures, fittings, machinery, plant and equipment at the property, the business name 'The Production Kitchen' and 'Canapeum'. There was specifically excluded from the sale all trade creditors."
It is thus clear that anyone who read the agreement would understand how the business name "Canapeum" might come to be displayed at DSI's premises.
- The events of 29 May were also described by Mr Manghnani in his witness statement at paragraph 5:
"On Friday 29 May 2008 [sic] Mr Scott Hinds, an enforcement office[r] attended with two colleagues at the Company's premises. They said that they were bailiffs and were going to take goods from the premises in settlement of a judgment. Following a demand, they produced a copy of their writ. They were informed that Capaneum Ltd did not trade from these premises and were advised that the writ referred to Unit 8 and not the premises [i.e. Units 5 and 6]. It was explained to them that Canapeum Ltd was a trading name that was acquired from the Administrators of NJ Catering Ltd. They refused to accept the explanation. The Company's accountant, Mr [Minesh] Dilip Amin, spoke to them and verified and confirmed the same. I was involved on that conference call. They again refused to accept his explanation. I e-mailed a copy of the title of the premises and the purchase agreement to Mr Amin who showed him copies. He ignored these documents and forcefully insisted that he and his colleagues intended to take the Company's machinery. The police were called but said that unless there was a breach of peace they would not attend. Mr Hinds was informed that he was trespassing on the premises as the writ referred to Unit 8 and not Unit 5. Notwithstanding this he and his colleagues threatened and forcefully removed from the premises all staff. He said he intended to shut down machinery. They were told that there would be damage to the machinery and they could not enter the production area without proper precautions being taken. Notwithstanding that they walked into the production area without protective clothing, headgear and footwear. As a result food was contaminated."
- Reference was also made to these events in the witness statement of Mr Minesh Amin at paragraphs 6-11:
"In these circumstances the Enforcement Officers adopted the simple stance that either the Company paid up the Judgment debt plus costs and charges otherwise the Enforcement Officers would be seizing goods.
Having been called when the Enforcement Officers first arrived to come to the Premises, on my arrival I personally took them through the position of the Company, explaining how the Company had acquired the lease of the Premises and the assets and business from the Administrators of NJ Catering Ltd and that, accordingly, the Judgment Debtor had nothing to do with the Company. I also drew the Enforcement Officers' attention to the fact that the Writ of Fieri Facias had been issued in respect of premises (Unit 8) in respect of which the Company had no association.
Whilst the Enforcement Officers were in attendance, we contacted Begbies Traynors but the Enforcement Officers refused to speak to them. We further provided to the Enforcement Officers documentary evidence that the debt that formed the basis of the Judgment was included in the list of debtors for NJ Catering Ltd. Again the Enforcement Officers refused to look at this documentary evidence.
I advised the Enforcement Officers that they would not be allowed through the doors to the offices at which point Mr Hinds made arrangements for the attendance of a locksmith advising that this would only add to the final bill and, further, that their charges were increasing every 30 minutes.
I called the Police to advise them of the situation but they stated they would not attend as there was no disturbance.
Enforcement Officers then proceeded to remove goods from the Company's reception area and required the Company's staff (approximately 18) in number leave the production area downstairs. Unfortunately and despite being made aware of the fact, the Enforcement Officers had no respect for the environment and proceeded into the packing area of the Premises without white coats and hairnets. On being specifically requested to respect the area, the Enforcement Officers' response was to the effect that it did not matter as they were in any event removing all the equipment. Their action resulted in the contamination of food which we had no alternative other than to dispose of."
- Had Mr Hinds taken a moment to read the documents offered to him, he would immediately have understood (a) that DSI were entitled to carry on business at Units 5 and 6, (b) how it was that the business name "Canapeum" came to be on display, and (c) that DSI had not taken on any liabilities of the debtor. Mr Wilson has made the point, on behalf of the enforcement officer, that the documents did not say anything about the debtor company. But why should they? What Mr Amin was trying to get across, in the face of Mr Hinds' resistance, was the fact of DSI's entitlement to be carrying on business at the premises and its lawful acquisition of the equipment and machinery. It was clear from the documents produced that DSI was not the debtor.
- In the end Mr Amin managed to bring the execution process to an end by permitting a payment of £7,905.04 to be taken via his personal debit card.
- The Deputy Master indicated that he accepted the evidence served on behalf of DSI, which he described as "unchallenged", and he came to the conclusion that the enforcement officers had been "heavy handed".
- Some criticism has been levelled by Mr Wilson in respect of the procedure followed at the hearing before the Deputy Master. By way of background, it is necessary to have in mind that a directions hearing took place before Master Leslie on 27 July last year at which he made an order in the following terms:
"1. The Interpleader Claimant to serve any further evidence including that of Minesh Amin by the 14th August 2009.
2. The Judgment Creditor/Claimant and the High Court Enforcement Officer do file and serve upon the Interpleader Claimant any witness statement in response by 4.00 pm on the 4th September 2009.
3. The Interpleader Claimant do serve any evidence in reply by the 2nd October 2009.
4. Matter to be re-listed before Master Leslie for summary disposal on Thursday the 29th day of October 2009 at 2 o'clock, time estimate of 2 hours and 30 minutes, witnesses to attend for cross examination unless released by all other parties.
5. Liberty to restore.
6. No action against the High Court Enforcement Officer pending further order.
7. Costs in the case."
That timetable was not adhered to.
- The parties agreed to an extension of time for service and DSI served its evidence on 8 September last year. It was agreed that the Appellant would serve the witness statement of the enforcement officer on or before 29 September. In fact, the only evidence relied upon by her was the witness statement from Mr Christopher Badger, who is a litigation executive, and that was served on 27 October – only two days before the hearing itself. Since Mr Badger had not attended at the DSI premises on 29 May, and therefore had no first hand knowledge of the circumstances surrounding the execution of the warrant, he had to rely upon hearsay. That in itself would not, of course, necessarily be objectionable, but the problem was compounded by the fact that he did not even identify the source(s) of his information. It is quite plain, I should have thought, that Master Leslie had in contemplation, when he ordered that the witnesses should attend for cross-examination, that the surrounding circumstances of the execution on 29 May should be explored. As the Deputy Master apparently observed, there was not much point in submitting Mr Badger to cross-examination, since he had not been present at the material time. Master Leslie almost certainly intended that evidence should be produced from one or more eye witnesses and that they should themselves attend for cross-examination.
- The late service of Mr Badger's witness statement caused additional problems to DSI and its advisers. There was no real opportunity to reply to its contents before the hearing. I was told by Mr McMorrow that he announced to the Deputy Master, at the outset, that he was in difficulty in this respect and indicated that Mr Amin was available to give oral evidence to deal with the matters in Mr Badger's witness statement which needed to be challenged. There were two issues in particular which can be identified by reference to paragraphs 9 and 10 of Mr Badger's statement and of which no previous notice had been given:
"The employee who the Enforcement Officer spoke to initially advised that the debt would be paid within half an hour. …
A Mr Minash later arrived at the premises and informed the Enforcement Officer that the debt would not be paid as the Defendant Company were in administration. The Enforcement Officer requested a formal third party claim to the goods at the address on several occasions but unfortunately this was refused."
This reference to a "formal third party claim" was repeated several times in Mr Badger's witness statement. He was referring, I understand, to the terms of RSC Ord 17 r.2(1), which provide that a person who intends to make a claim in respect of goods taken in execution must give notice of his claim to the enforcement officer. It would appear that this would have to be written notice, since there is a requirement that the notice must include an address for service. Had such a formal written notice in fact been given on DSI's behalf, it appears that the enforcement proceedings would have come to an end forthwith. The matter would then have been investigated.
- The problem confronting Mr McMorrow was that two aspects of Mr Badger's evidence would have to be challenged by Mr Amin, but they had had no prior notice that these matters were to be raised.
- First, it was denied by DSI that anyone said to the enforcement officer that the debt would be paid within half an hour. It is clear that this was highly unlikely, since the position of DSI has always been that the debt was not that of the company. The allegation is, therefore, inherently improbable. Yet the source has not been identified at any stage. It may be Mr Scott Hinds, but that remains a matter of speculation. There was no way in which Mr Badger could usefully be challenged at the hearing on 29 October, since he would have no direct knowledge himself.
- Secondly, DSI denied that the enforcement officer made any reference to a formal claim in writing – let alone several. As has been pointed out by Mr Amin, through Mr McMorrow, if that easy route had been available to him at the time, there is no conceivable reason why he would not have taken it. It would have prevented the disruption and unnecessary cost of the enforcement process.
- Nevertheless, even though the offer was made by Mr McMorrow that Mr Amin should give evidence on these two matters and, if thought appropriate, be cross-examined, the Deputy Master rejected the idea and said there was no point in having Mr Badger cross-examined because he would be unable to give any direct evidence.
- I can understand the Deputy Master's view that there would be no point in having cross-examination of Mr Badger on either of these issues, but it would not be appropriate to take for granted what Mr Amin was going to say about them. Mr McMorrow indicated that the two points were challenged, but the Deputy Master appears not only to have discouraged cross-examination of Mr Badger but also oral evidence in chief from Mr Amin.
- On the other hand, the Deputy Master was entitled to accept the evidence in the witness statements served on behalf of DSI, as he appears to have done, and to reject the evidence of Mr Badger. Obviously, it would not be a sufficient reason that it was hearsay, since hearsay is regularly admitted in civil proceedings nowadays. Nonetheless, he would be entitled to take the view that eye witnesses should have given evidence from their own direct knowledge of what had taken place on 29 May last year and that they should have attended for cross-examination (in accordance with Master Leslie's intention). He would thus be entitled to attach little or no weight to Mr Badger's untested account. Furthermore, the Deputy Master would be entitled to come to the view that Mr Badger's account was in certain respects contrary to the balance of probabilities.
- The Deputy Master seems also to have concluded that the evidence relied upon by DSI should be accepted as truthful. He described it as either "uncontested" or "undisputed" (depending on which note of the judgment is used). This was accurate, in the sense that no request was made by Mr Badger to cross-examine any of the relevant witnesses. They were available for that purpose, in accordance with Master Leslie's order of 27 July. It was faintly suggested in argument by Mr Wilson that the Deputy Master was wrong in this respect. He argued that the evidence could not be regarded as "uncontested", since Mr Badger's evidence was inconsistent with it in a number of respects. I take the Deputy Master, however, to have been using the word in its usual sense; that is to say, that the evidence was not challenged in cross-examination. He was thus entitled to accept it.
- In the light of the evidence before him, and in particular the passages I have cited above from the witness statements of Mr Manghnani and Mr Amin, it seems to me that the Deputy Master was entitled to conclude that DSI had a real and substantial grievance in respect of the attitude and conduct of the enforcement officers on 29 May. I agree that the phrase "heavy handed" is not reflected in any of the authorities to which reference was made in the course of argument, but it is not qualitatively different from the concept of "oppression", as used by Brett MR in 1885. I certainly would not conclude from the use of that phrase that the Deputy Master had misdirected himself in law.
- Mr Wilson argues that the enforcement officers behaved entirely correctly and were entitled to be sceptical about the documents presented to them for the purpose of explaining DSI's right to be in the premises and its title to the equipment concerned (even though they chose not to read them). All I need to decide for present purposes is whether the Deputy Master had material before him which entitled him to come to the conclusion that the circumstances justified refusing relief under RSC Ord 17. I am quite satisfied that in all the circumstances he did have such evidence. He was required to look at what Lane LJ described in Neumann as the "quality" of the enforcement officers' conduct in carrying out their duties. Did it aggravate the inconvenience that would be in any event caused to DSI by the bare fact of the admitted illegality? He was entitled to answer that question in the affirmative.
- It is to be noted also that DSI claims to have suffered financial loss as a result of the interruption to business and the need to destroy the food which was being processed at the material time. Just as a real and substantial grievance can arise through the sale of goods at an undervalue, so too it seems to me that such a grievance can arise through the "heavy handed" discharge of the enforcement officers' duties in such a way as, unnecessarily, to cause disruption to an interpleader claimant's business and consequential loss. That was a factor the Deputy Master was entitled to have in mind.
- Mr McMorrow has summarised his client's case on "substantial grievance" as follows; namely, that the enforcement officer decided to enter DSI's premises to execute a writ that had no relevance to DSI and, in doing so, then:
"i) Refused to consider any of the oral and documentary evidence presented by the Respondent and its solicitors on the day of execution that they were not the judgment debtor, that the premises did not belong to the judgment debtor and there were no assets belonging to the judgment debtor on the premises; and
ii) Ignored the Respondent's warning that the food preparation area was a protected zone and that it was prohibited to enter the protected zone without the appropriate protective clothing and headgear; and
iii) Entered the protected zone and caused the entire food production for that shift to be contaminated and consequently to be destroyed; and
iv) Acted in a high-handed and completely unprofessional manner."
- Finally, I return to the question of whether or not the address appearing on the writ confined the enforcement officer's authority to carry out enforcement at Unit 8. Should it be treated as a direction to execute there and only there? There is little direct authority to assist on this point. Traditionally, the writ of fi fa has been treated as authorising the high sheriff (now the enforcement officer) to execute in respect of any goods belonging to the debtor within his or her bailiwick or district. It would be absurd, argued Mr Wilson, if the enforcement officer were to appear at the premises identified on the writ and, having spotted that the debtor's goods were located somewhere in the vicinity, he was not entitled to execute – but would rather have to return and seek additional authority by an amendment to the writ.
- Sometimes, information was to be found on a writ to give guidance to the enforcement officer, such as to the effect (say) that the debtor lives in the Goldhawk Road and carries on business as a pawnbroker. That could not be described as part of the command or be taken as in any way limiting the powers of the enforcement officer. Mr Wilson argues that it is no different if the information happens to be more precise, as for example in this case by the provision of a specific address in a box on the form. That cannot, he says, cut down the jurisdiction of the enforcement officer. At the hearing, Mr McMorrow took a contrary position, but both counsel thought the point required further consideration.
- I am grateful to Mr Wilson and Mr McMorrow for their supplemental research, after the hearing, in order to throw further light on this point. Interestingly, Mr Wilson referred to a modern work on the subject, to which his client Mrs Sandbrook happens to be a contributor: The Execution of Sheriffs' Warrants (2nd edn, 1996), at pp.22-23. Chapter 3 deals with The Writ of Fieri Facias and contains the following passages:
The writ will show, as an endorsement (which does not form part of the writ), the address at which execution should take place. The direction is often altered by a letter of instruction from the issuing solicitor. It is the duty of the Sheriff to levy upon the debtor's goods wherever they are found within his bailiwick. From this one could assume that the Officer should attend at any address at which he has reason to believe there are goods of the debtor. However, if the Officer attempts to levy at an address he has discovered personally and it is found that the debtor has nothing there, the Sheriff may be liable in an action for trespass.
If the Sheriff is given inaccurate information by the creditor or by his solicitor, the party instructing him may be liable for any trespass (Morris v. Salberg (1899) 22 QB 614; Rowles v. Senior (1846) 8 QB 677). In practice, the Officer should only attend at the address given and should not attend at an address of his own discovery until instructed to do so by the creditor. To ensure fullest protection for the Officer, such instructions should be in writing. In any event, the location of the address should be checked in advance; the Sheriff may not levy outside his shrievalty. His authority ends at his boundary."
Ironically, Mr Wilson invited me to disregard the practical recommendation to the effect that an officer should not attend at an address of his own discovery until instructed to do so by the creditor. That is because it did not represent the law (and, to be fair, did not purport to do so). The suggestion may have been a wise one for officers to adopt: indeed, it might be said that the facts of this case provide a good illustration of why they should. Nevertheless, Mr Wilson emphasised that the basic scheme of the 2003 Act was to invest enforcement officers with the same duties and powers as those traditionally attaching to sheriffs. The duty would thus appear to extend to any goods of the debtor within the relevant geographical area (i.e. the bailiwick or modern "district").
- It will have been noted that the second edition of the text book pre-dated the new Act. It is thus significantly out of date. In his further written submissions, Mr McMorrow draws attention to changes since the 2003 Act in the wording of Form 53 (which corresponds to the writ of fi fa). The previous format commanded the sheriff to seize the debtor's goods "in your county". The form included a separate statement to the effect that:
"The Defendant resides (or as the case may be) at … in the county of … "
That was no doubt intended to be helpful information but it is clear that the command itself was not, at that time, geographically confined to the specified address. Mr McMorrow also made reference to the form contained in Mather on Sheriff and Execution Law (1935), which was in similar terms – save for the use of "bailiwick" instead of "county".
- In these respects, Mr McMorrow points out that the current Form 53 is different. The command contains no corresponding instruction as to geographical area (whether by reference to bailiwick or county). Nor does the modern writ contain an old style endorsement of the debtor's address (i.e. for information). The new provision gives a specified "address for enforcement". Mr McMorrow, therefore, submits that the enforcement officer's duty must now be confined to enforcement at the particular address (or addresses) contained in the relevant box. He argues that the adoption of the wording "address for enforcement" must have been deliberate. The natural construction would be that it was indeed intended to define the scope of the enforcement officer's duty – so that it would no longer be right to regard it as a "roving commission".
- This approach is to some extent borne out by Regulation 7 of the 2004 Regulations to which I have referred. This provides that an enforcement officer, once assigned to a particular district, or number of districts, must undertake enforcement in respect of all writs of execution received "which are to be executed at addresses which fall within his assigned district". Accordingly, the wording both of Form 53 itself and of Regulation 7 would appear to indicate an intention, from the time they came into effect, that the duty of enforcement was to be defined in terms of a specific address or addresses rather than by reference merely to a wide geographical jurisdiction. It would thus seem that the wise recommendation for specificity contained in the 1996 text book has, in effect, been adopted in the 2003 reforms (whether consciously or otherwise) and given the force of law.
- This is not determinative of the appeal, since Mr McMorrow had not placed reliance on the "wrong address" point as the only ground of "substantial grievance". It is simply one aspect of the overall circumstances.
- Even if Mr McMorrow's strict interpretation were incorrect (and the address is still to be regarded as purely for information), I would still take the view that the Deputy Master was entitled, in assessing the overall circumstances, to take into account the fact that the officers on this occasion did go to the "wrong address". (It may legitimately be thought, for example, that Mr Hinds should have been readier to rein in his scepticism when told that DSI was unconnected with the debtor – for the very reason that he had chosen to go to a different address from that on the writ.) Yet it is only one of a number of factors he was entitled to have in mind.
- I have come to the conclusion that the Deputy Master reached a decision which was open to him on the evidence, and in particular having accepted the contents of the witness statements served on behalf of DSI. Moreover, there was no procedural irregularity such as to undermine his decision.
- Accordingly the appeal is dismissed.
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