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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Alenezy v Shergroup Ltd [2022] EWHC 777 (QB) (01 April 2022) URL: https://www.bailii.org/ew/cases/EWHC/QB/2022/777.html Cite as: [2022] EWHC 777 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
(sitting as a Deputy Judge of the High Court)
____________________
MESHARY ALENEZY |
Claimant |
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- and - |
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(1) SHERGROUP LIMITED (2) MR MARK WILLSHER |
Defendants |
____________________
Chris Royle of St. Philips Chambers (instructed by Feltons Law) for the Defendants
Hearing date: 7 March 2022
____________________
Crown Copyright ©
This judgment was handed down remotely by circulation to the parties' representatives by email and release to BAILII. The date for hand-down is deemed to be on 1 April 2022.
Simon Tinkler sitting as a Deputy Judge of the High Court:
Background
i) The type of vehicle and its registration number;
ii) The name and address of the person who was writing to them (or possibly the name and address of the Claimant; the email is unclear)
iii) The grounds of the claim and supporting evidence
i) Denied that the Claimant had claimed the vehicle belonged to him;
ii) Denied that the Claimant had shown them adequate documents to evidence his ownership of the Vehicle and asserted that "at all times [the Defendants] reasonably believed that the Vehicle was the property of [B]".
iii) Claimed that B had told the Second Defendant that B was the owner of the vehicle;
iv) Asserted that it was "inappropriate for the vehicle to be delivered up", notwithstanding the court order requiring them to do so. They offered to agree not to sell the vehicle if the Claimant paid the full value of the Vehicle into court; and
v) Asserted that the claim should have been made under CPR Part 85 and referred to the "requirement" to pay the value of the car into court.
Relevant Legislation
"(1) Schedule 12 applies where an enactment, writ or warrant confers power to use the procedure in that Schedule (taking control of goods and selling them to recover a sum of money); and
(2) The power conferred by a writ or warrant of control to recover a sum of money, and any power conferred by a writ or warrant of possession or delivery to take control of goods and sell them to recover a sum of money, is exercisable only by using that procedure."
Legal arguments
"control" (except in Paragraph 5(4)(a)) means control under an enforcement power;
"controlled goods" means goods taken control of that—
(a) have not been sold or abandoned,
(b) if they have been removed, have not been returned to the debtor (unless subject to a controlled goods agreement), and
(c) if they are goods of another person, have not been returned to that person;
CPR Part 85
i) the Defendants took no steps to check the ownership of the Vehicle;
ii) the Defendants took control of the Vehicle despite clear evidence presented to the Second Defendant that it belonged to the Claimant, and little or no evidence it belonged to B;
iii) the Defendants had failed to return the Vehicle as the pre-action rules in Part 85 clearly envisage when there was no genuine dispute.
iv) The Defendants had failed to return the Vehicle as the pre-action rules in Part 85 clearly envisage when there was no genuine dispute.
i) the Defendants had taken control of the Vehicle despite little or no evidence that it belonged to B, and plentiful and strong evidence that it belonged to the Claimant; in my view there could not have been a genuine belief held by the Defendants that the Vehicle belonged to anyone except the Claimant.
ii) having taken control of the Vehicle the Defendants served a Notice of Intended Sale;
iii) the Claimant had complied in substance with all the pre-action requirements of Part 85;
iv) The Defendants had not complied with the pre-action requirements in Part 85.4(2) requiring them to ask the creditor if the creditor had a claim to the goods (and in relation to which the creditor would have confirmed that he had no claim on the goods);
v) there was no bona fide dispute as to ownership of the Vehicle and the Defendant should have returned it as (a) there was no genuine dispute to which paragraph could have 85.4(4) could have applied and thus paragraph 85.6 requiring return of the Vehicle applied and (b) as a matter of general law it had no right to the Vehicle;
vi) the Defendants had not engaged with the Claimant's request to return the Vehicle, nor confirmed that if the Vehicle did belong to the Claimant they would return it
vii) Part 85.3 specifically requires any claim under Part 85 to be made by an application in accordance with Part 23, which it seems to have been; and
viii) Part 85.10(1)(g) permits the court to make any order that the court considers appropriate, which would include the order the court actually made.
Costs consequences
i) the Defendants were served with an injunction returning the Vehicle and giving permission to apply to vary the injunction if the Defendants wished;
ii) the Defendants did not apply to vary the Injunction;
iii) the Defendants' solicitor wrote asserting that his clients would only comply with the Injunction if the Claimant waived any claim to costs;
iv) the Defendants failed to comply with the Injunction and did not return the Vehicle by the time ordered by the Court;
v) The Claimant's solicitors wrote to the Defendants saying they would institute committal proceedings for contempt of court;
vi) the Defendants then applied to vary the Injunction, which of course still remained in full force and binding on the Defendants; and
vii) in correspondence the Second Defendant falsely asserted, through his solicitor, that the Claimant had not claimed the vehicle was his.
"A Writ of Control is not to be regarded as a kind of blank cheque or a licence to act with impunity....it is astonishing and concerning that [the Defendants], a body and an individual acting under statutory licence, should have done so. Taken together with the multiple breaches of procedure and the absence of proper records that I have referred to, the apparent lack of recognition or insight on the part of the persons concerned, the lackadaisical and dismissive attitude of [the Defendant] to these proceedings and the fact that what oversight the third defendant exercised with respect to [the Defendant] was and is apparently rendered from Florida, there are grounds to consider terminating the third defendant's authorisation to act as an enforcement officer under Regulation 12 of The High Court Enforcement Officers Regulations 2004. I will refer the case to the Senior Master for consideration of that course."
"Any person who knows of this order and does anything which helps or permits the respondents to breach the terms of this order may also be held in contempt of court and maybe imprisoned, fined or have their assets seized."