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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Newman (t/a Mantella Publishing) v Modern Bookbinders Ltd [2000] EWCA Civ 2 (20 January 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/2.html
Cite as: [2000] EWCA Civ 2
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Case No: CCRTF 1999/0650/B2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Mr. JUSTICE JOHNSON
SITTING AT MILTON KEYNES COUNTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday, 20th January 2000
LORD JUSTICE BROOKE
LORD JUSTICE ROBERT WALKER
and
LORD JUSTICE SEDLEY
- - - - - - - - - - - - - - - - - - - - -
CHRISTOPHER
NEWMAN |
Appellant | |
- and - |
||
MODERN BOOKBINDERS LTD. |
Respondent |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Miss Claire Miskin (instructed by Jay Benning & Peltz for theAppellant)
Mr. Paul Kilcoyne [Miss A Issa 20.1.2000] (appeared for LCD Intervening)
Judgment
As Approved by the Court
Crown Copyright ©
Thursday, 20th January 2000
LORD JUSTICE SEDLEY:
1. This is an appeal, by permission of the full court, against the committal of Christopher Newman to prison for one month by Johnson J sitting at Milton Keynes County Court on 15 June 1999. When it gave permission to appeal on 25 June 1999 this court admitted the appellant to bail with a condition of surrender on the day set for hearing. At the conclusion of the hearing on 3 December 1999 the court allowed the appeal, reserving its reasons.
The law
2. Section 92 of the County Courts Act 1984 provides:
Penalty for rescuing goods seized
(1) If any person rescues or attempts to rescue any goods seized in execution
under process of a county court, he shall be liable
(a) on summary conviction, to imprisonment for a term not exceeding one month
or to a fine of an amount not exceeding level 4 on the standard scale, or both;
or
(b) on an order made by a judge in that behalf, to be committed for a specified
period not exceeding one month to prison or to a fine of an amount not
exceeding level 4 on the standard scale, or to be so committed and to such a
fine,
and a bailiff of the court may take the offender into custody, with or without
warrant, and bring him before the judge.
(2) The judge may at any time revoke an order committing a person to prison
under this section and, if he is already in custody, order his discharge.
Section 101 provides:
Interpleader by district judge
(1) If a claim is made to or in respect of any goods seized in execution under
process of a county court, or in respect of the proceeds or value of any such
goods, the district judge may, as well before as after any action brought
against him, issue a summons calling before the court the party at whose
instance the process issued and the party making the claim.
(2) Upon the issue of the summons, any action brought in any county court or
other court in respect of the claim or of any damage arising out of the
execution of the warrant shall be stayed.
(3) On the hearing of the summons, the judge shall adjudicate upon the claim,
and shall also adjudicate between the parties or either of them and the
district judge upon any claim to damages arising or capable of arising out of
the execution of the warrant by the district judge, and shall make such order
in respect of any such claim and the costs of the proceedings as he thinks
fit.
Section 29 of the Legal Aid Act 1988 provides:
Representation in contempt proceedings
(1) This section applies to any proceedings where a person is liable to be
committed or fined -
(a) by a magistrates' court under section 12 of the Contempt of Court Act
1981;
(b) by a county court under section 14, 92 or 118 of the County Courts Act
1984;
(c) by any superior court for contempt in the face of that or any other
court;
and in this Act "proceedings for contempt" means so much of any proceedings as
relates to dealing with a person as mentioned in paragraph (a), (b) or (c)
above.
(2) In any proceedings for contempt against a person the court may order that
he be granted representation under this section for the purposes of the
proceedings if it appears to the court to be desirable to do so in the
interests of justice.
History
3. Mr Newman ran a small publishing business, Mantella Publishing, with his
partner Jan Burgess and her husband Tom Burgess. The enterprise was dependant,
as practically all such businesses now are, on computers. They published a
magazine about reptiles: one guesses that it had a modest circulation, but it
had been going since 1993. Mr Newman is dyslexic - a characteristic which the
bailiff understandably enough considered unusual in a publisher. Mr Burgess is
a computer specialist: his proper job is as a senior systems engineer with a
national company; but his written evidence before this court is that two of
Mantella's three computers, the Mesh and the Olivetti, had been bought by him
and were still being paid for by him, bar some £200 contributed by Mr
Newman. The third, he deposes, had no name because he had built it himself.
4. Mr Newman found himself sued to judgment in the Aylesbury County Court for a debt of £470.31. His attempts to have the judgment set aside, which there is no need to detail, had failed by October 1998. The judgment creditors, Modern Bookbinders Ltd, finally instructed the court bailiff to levy execution on his goods.
4. There is substantial, though not complete, agreement between Mr Newman and
James Dickins, the court bailiff, about what then happened. The warrant of
execution was issued on 8 February 1999. Ten days later Mr Dickins made a first
visit to the house at 191 Meadowcroft, Aylesbury, where Mr Newman lived and had
his publishing office. When on 23 February he finally found Mr Newman at home,
the latter told him that he did not owe the money. Mr Dickins gave him some
advice about applying to set the judgment aside. There followed a series of
further visits until on 23 March Mr Newman's renewed application was dismissed
with a bar on the making of any more applications without leave.
5. Six days later Mr Dickins came round again. He gave Mr Newman the option of
having his goods taken there and then or signing a walking possession form
which would leave them on the premises for the time being. Mr Newman responded
that he did not own the computers. This, Mr Dickins credibly deposes, "is not
an uncommon statement for any defendant to make to a bailiff and I confirmed to
him that if this was the case the third party would have to take the necessary
steps to prove that they owned the goods, since I was entitled to levy on those
which appeared to be the defendant's, as these items did."
6. The material part of the form, N. 42, begins: "Please do not take my goods
listed here..." . The bailiff has listed the Olivetti computer, the Mesh
computer and "One computer no name", each with its screen and keyboard,
together with a Brother fax machine. The form goes on to say:
"I agree that until payment is made or the warrant withdrawn I will:
* not remove or damage the goods or allow anyone else to do so;
* show this form to anyone who calls and tries to take these goods and I will
tell you that they called; and
* allow you to re-enter the premises at any time (and as often as you want) to
see the goods or to complete the enforcement of this warrant."
Mr Newman says that, being (as he told the bailiff) dyslexic, he did not
realise that what he was signing included an admission that the goods were his.
In the event it may not matter, since it is common ground that he had already
told Mr Dickins that they were not. For the rest, it is clear that Mr Dickins
fairly described the effect of the agreement to Mr Newman.
7. On 3 June Mr Dickins returned with a colleague to take the computers. Mr
Newman told him again that they were not his. He also says, and Mr Dickins does
not contest it, that he told the bailiff that the data they held were needed to
run the business. Later that day the bailiffs returned to find that Mr Newman
had removed the computers from the office. They had simply been moved,
according to Mr Newman, into the adjacent living room; but Mr Newman admits
that he did not volunteer this when asked, and Mr Dickins says that he asserted
that Tom Burgess had taken them. Whichever it was, this was a breach of the
walking possession agreement and a contempt of court.
8. Next day Mr Newman got Mr Burgess to provide a statement and some
documentation showing that the computers were his (or more accurately in the
case of two of them, a finance company's) and faxed these to Mr Dickins. The
statement reads:
"Declaration of computers and accessories.
I hereby certify that the following computers and peripherals are owned
solely by myself and currently on loan to Mrs J Burgess at 191 Meadowcroft,
Aylesbury, Buckinghamshire.
Two of these machines (Mesh and Olivetti) were purchased on credit and are
still being paid for by myself. Third machine has been built by myself,
invoices for components available
T.A.Burgess
(All software on all PCs is owned and registered to myself)"
Annexed were two apparently authentic copy documents, one a credit agreement for a loan of £4,500 dated March 1995, the other a credit sale agreement dated February 1998 for a multimedia PC at a price of £1,750.13 plus interest. But when Mr Newman followed up by telephone Mr Dickins said the documents proved nothing. Mr Dickins explains that he had consulted the court manager and they had agreed that the documents did not amount to an interpleader. The court manager for his part deposes that he showed the documents to District Judge Rhodes, who "directed that the material showed insufficient proof of ownership to commence the interpleader procedure". We have no statement from the District Judge himself.
9. There followed a further conversation on 7th June which amounted
to a stand-off, Mr Newman refusing now to tell the bailiff where the computers
were. Five days later, apparently without telling Mr Newman, Mr Burgess let
himself into the house to upgrade the Mesh computer, but finding that he had
left his toolbox at home, took the computer away with him, leaving a note to
say so.
10. On 15 June Mr Newman was arrested by the bailiffs. "We told him," Mr
Dickins deposes, "that he was under arrest for contempt of court for removing
levied goods". He was taken to Milton Keynes County Court where Johnson J
happened to be sitting as family liaison judge. The judge helpfully made a note
of his recollection of the hearing about a week later. We now have the benefit
of what we are told is a full transcript of both the hearing and his judgment;
but it may be incomplete, for it does not record what the judge says he was
told before he asked Mr Newman to tell him his side of the story.
The hearing
11. The transcript shows that from the start Mr Newman had the wrong end of the
stick. He thought that the problem was that he had signed the walking
possession agreement, and he came back repeatedly to his dyslexia and his
belief that he had been misled into signing something more onerous than he had
realised. The judge explained to him at an early stage that he was being asked
to fine him or commit him to prison. He offered Mr Newman a chance to go with
the bailiffs and show them where the equipment was. Mr Newman replied that the
bailiffs had seen it that morning. This Mr Dickins denied. He said to the
judge:
"I asked him [Mr Newman] whether or not the equipment was still there. It is my
understanding, from a letter from Mr Burgess, that the equipment has been
removed because it is owned by Mr Burgess. What he has done is in fact entered
as an interpleader. I spoke to District Judge Rhodes this morning and his view
was that it was not satisfactory, just a letter, but we were to go ahead and
arrest Mr Newman and bring him before you."
13. On the evidence before us the likelihood is that two computers, the
home-made one and the Olivetti, were back in Mr Newman's office on the day of
his arrest together with the fax machine, while the Mesh computer was at Mr
Burgess's home. By then, however, the bailiffs had orders to arrest him. Before
the judge, Mr Newman's second serious error was to decline the judge's repeated
invitation to go home and show the bailiffs what was there. Mr Newman's
evidence is that he was by now confused because he could not identify the
machines by name to the judge. When the judge finally proposed to the bailiffs
that they should go back with Mr Newman and recover whatever goods were there,
it was Mr Newman who said:
"I see little point in going back, because my point is that when I was asked to
sign that document Mr Dickins was well aware I was dyslexic. I was not informed
what I was signing .... I don't want to waste any more of the court's time by
going away and us coming back in two hours and saying Yes, there are two
computers and a fax machine, and we will be in exactly the same situation.... I
think I have been very unfairly treated in that I have been asked to sign a
document I am not aware of and without these computers the business cannot
function..."
14. It is unsurprising that the judge felt he could do no more. He expressed
his conclusion in this way:
"I am satisfied that Mr Newman has disregarded his obligation under the walking
possession agreement; that he has, in the words of section 92, rescued or
attempted to rescue the goods the subject of that agreement, that is to say put
them outside the capacity of the bailiffs to enforce the judgment. Accordingly
I hold that I have jurisdiction under the section to impose a penalty upon
him.
I sentence him to one month's imprisonment. I make it plain that if at any time
during the period that he is in prison he co-operates with the bailiffs so that
they are able to recover the equipment the subject of the walking possession
agreement, then it will be open to him to make an application for his early
release ..."
15. The warrant of committal recites simply that the sentence follows proof to
the satisfaction of the court that Mr Newman "on the 7 June 1999 rescued or
attempted to rescue certain goods seized under the process of this court."
Submissions
16. On Mr Newman's behalf Ms Miskin, in a clear and economical argument,
submits that the committal was bad in law; or if not, then excessive in
duration. Her grounds, though not in quite this order, are these. First, that
the goods were not Mr Newman's and so not open to distraint. Second, that as
the tools of his trade they were exempt from seizure under what is now s. 89(1)
of the Act but was for centuries the common law. Third, that if these are not
facts upon which this court is able to proceed, they are issues which the judge
should have tried out or made arrangements to have tried out. Fourth, that the
documents furnished to the bailiff were sufficient to constitute an
interpleader and should have been treated accordingly. Fifth, that
notwithstanding the absence of any prescribed procedures under s. 92, Mr Newman
was entitled to written notice of the charge and its factual basis, and to an
adequate opportunity to prepare a defence and seek legal advice and
representation, if appropriate on legal aid. Lastly, if all else fails, Ms
Miskin submits that a month's imprisonment - the statutory maximum - was
unwarranted.
17. When permission to appeal was granted, and in the correct anticipation that
the judgment creditor would be taking no interest in the appeal, Her Majesty's
Attorney-General was invited by the court to consider instructing an amicus.
The Attorney-General suggested that it might be more helpful to the court if
counsel were instructed directly on behalf of the Lord Chancellor's Department.
This was accepted, and we have in consequence had the assistance, for which we
are grateful, of Mr Kilcoyne for the Department.
Conclusions
18. The conclusions which we have reached, and which are sufficient to dispose of the appeal, are these. First, it was a denial of justice not to give Mr Newman adequate details of what he was accused of doing and an opportunity to apply for legal aid as soon as the possibility of imprisonment became apparent. Secondly, sufficient was known to the county court to make it possible that the computers were wholly or partly owned by someone other than Mr Newman, with the result that to proceed with enforcement before the determination of an interpleader was an error of law.
19. These conclusions make it unnecessary to consider whether the computers
were immune from seizure under section 89(1)(a) as "equipment ... necessary to
[the debtor] for use personally by him in his employment, business or
vocation", and whether the imposition of the statutory maximum sentence was
excessive. As to seizure of personal equipment and household essentials,
however, we would record our view that Mr Kilcoyne was right to resile from his
initial stance that it was for the debtor to retrieve such goods if they were
distrained upon. Such goods are by statute exempt from seizure and are taken at
the bailiff's peril. We do not have to decide, however, whether the computers
fall into this class.
(1) Committal
20. Section 92, as can be seen, offers two alternative bases for punishing
people who rescue goods subject to distraint: a summary offence created by
subsection (1)(a), and committal - manifestly for contempt of court - under
subsection (1)(b). What matters, especially in a legal system which is about to
be required to accommodate the standards of the European Convention on Human
Rights, is that this is a penal process. Whether it takes the summary or the
contempt path, a charge of rescue of goods contrary to section 92 is for
Convention purposes a criminal charge: see Benham v United Kingdom
(1996) 22 EHRR 293. As such it carries a number of basic procedural rights.
21. One such right, which has long been part of our common law (see Christie
v Leachinsky [1947] AC 573, now codified in the Police and Criminal
Evidence Act 1984, section 28) is the right to be told in broad but clear terms
why one is being arrested. How much detail is required will depend on the
circumstances. Thus in R v Telfer [1976] Crim LR 590 it was held
insufficient for a constable to tell a citizen that he was being arrested for
burglary: it was necessary to say when and where the burglary had occurred. Mr
Newman was told when he was arrested on 15 June that it was "for removing
levied goods". This might have been sufficient if the arrest had related to the
situation obtaining that day, as both Mr Newman and the judge evidently thought
it did. It now appears, however, that it was a week earlier that Mr Dickins had
received instructions from the supervising bailiff, Mr Jacklin, to arrest Mr
Newman, but that the arrest was delayed because the latter was not due to come
to Aylesbury for some days. It was not until the warrant of committal was drawn
up that it could be seen that the charge on which Mr Newman was eventually
taken into custody related to the rescue of goods eight days earlier. We did
not hear full argument on the point, but our present view is that if the arrest
was to be lawful the bailiffs should probably have told Mr Newman that the
charge related to his having removed goods subject to distraint on or shortly
before 7 June.
22. Next, however, the hearing of a charge of this kind carries a common law right to adequate notice of what is being alleged. Nothing in section 92 cuts this down. Applying it, it seems to us that the minimum to which Mr Newman was entitled following his arrest and before being tried was to be told in detail what goods he was alleged to have rescued and when and from where. In our judgment good practice, if nothing else, demands that the charge should be put in writing and read over to the defendant (unless it is clear that he has already read and understood it) at the outset of the hearing in order to eliminate any possibility that he does not know the case he has to answer. We do not need to go further, since we have no evidence that Mr Newman was even given adequate oral details of the charge he faced; but it should be appreciated that even before the Human Rights Act 1998 comes into force a failure to put a charge of this kind in writing may leave an appellate court in doubt whether adequate notice has been given. When the Human Rights Act comes into force, a charge such as this will rank as a criminal charge attracting the provisions of Article 6(3): direct effect will have to be given to Article 6(3)(a) which entitles a defendant to be informed promptly and in detail of the nature and cause of the accusation against him, and to Article 6(3)(b) which requires him "to have adequate time and facilities for the preparation of his defence".
23. Next, regardless of whether Mr Newman asked for an adjournment to seek
legal advice or representation, he was entitled under s.29 of the Legal Aid Act
1988 (see paragraph 2 above) to apply for legal aid. In relation to committal
for rescue of goods, this provision closes the gap in the availability of legal
aid revealed in Benham v United Kingdom (above) in relation to committal
for non-payment of the community charge (see R v Clerk to the South Cheshire
Justices, ex parte Bold (9 July 1996, C.A.)). It means that in this regard
the United Kingdom's law complies with the Convention.
24. In our judgment it follows from s. 29 that a court exercising any of the
powers spelt out in subsection (1) must
(a) have in mind its power to grant the alleged contemnor representation on
legal aid;
(b) accordingly ask any unrepresented defendant, as soon as it appears that
there is an appreciable risk of imprisonment, whether he or she wishes to be
represented, and
(c) if the answer is Yes, consider whether it is desirable in the interests of
justice that they should be granted representation on legal aid.
It is at stage (c) that it is necessary to bear in mind the principle,
underscored by Article 6(3)(c) of the European Convention on Human Rights, that
a person facing possible imprisonment who wants legal representation should
have it if the interests of justice so require. As Lord Woolf M.R. pointed out
in Read v King (18 November 1996, transcript 96 1654, p. 10-11), holding
that "at its lowest, the [contemnor] should have been informed ... of his
entitlement to legal aid":
"a truculent person, such as the appellant, will often benefit from legal
advice over and above the benefit which is normally obtained because it would
include advice about the inappropriateness of the conduct with which he was
involved."
25. The importance of not letting speed degenerate into haste in summary
contempt procedures in the county court was spelt out by Bingham LJ in
Bailiffs of Shoreditch County Court v de Medeiros (22 February 1998,
C.A., p. 3):
"... this was an incident which occurred at about half past eight ... and the
matter came before the learned judge in the middle of the morning. The
appellant therefore had had very little opportunity to reflect on his position,
since he had been arrested and taken almost directly to the court, and very
little opportunity to consider whether he wished to have the benefit of legal
advice or not.... [I]t does seem to me to be generally desirable that an
alleged contemnor, when invited to consider whether he wishes to be legally
represented, should receive some warning, preferably from the judge himself, as
to the possible penalty that he may face if the complaint against him is
established."
26. If representation on legal aid is granted, an adjournment will necessarily
follow. But whether it is granted or not, an alleged contemnor is still
entitled to an adequate statement of what it is that he or she is alleged to
have done in contravention of the law. The entitlement set out in Article
6(3)(a) of the Convention "to be informed promptly, in a language which he
understands and in detail, of the true nature and cause of the accusation
against him" is one of the rights known longest to the law of England - since,
at least, the moment 350 years ago when John Lilburne demanded and finally
obtained a sight of the indictment on which he was to be tried (Stephen,
History of Criminal Law, I.367). If the information is not given in writing, as
a matter of practicality any adjournment for advice may well be pointless,
since the odds are that the defendant will be unable to give the adviser an
adequate account of the problem. Certainly where legal aid is granted under
section 29, the want of a written charge is likely to frustrate the statutory
purpose.
27. There is a further reason in contempt cases why the offence needs to be
spelt out with particularity. If committal follows, the contemnor is ordinarily
free to purge his contempt and seek release or mitigation of sentence as
envisaged in s. 92(2). Unless the warrant of committal spells out precisely why
he is in prison, he may be unable to do this: see Chiltern District Council
v Keane [1985] 1 WLR 619, C.A. It follows, since the warrant of committal
must reflect all or part of the charge, that the charge must be spelt out with
commensurate particularity.
28. None of these things was done. It appears from what we have been told that
it is not the practice to do them. If so, aspects of the practice may well be
unlawful. The want of prescribed procedures does not mean that no procedures
are necessary if the process is to be fair. It means simply that there is no
express inhibition on resort to what Byles J classically called the justice of
the common law (Cooper v Wandsworth Board of Works (1863) CB (NS) 180);
and it has not been suggested that there is any implicit inhibition on doing
so. The legal position will be beyond doubt when the Human Rights Act 1998
comes into force, and it would be prudent if corrective steps were taken, with
due consultation, before that date. In the meantime, for the reasons we have
given, the practice of putting charges of this kind in writing in advance of
the hearing should be adopted without delay. For the rest, we limit ourselves
to holding that there were two denials of justice sufficient to vitiate the
committal of Mr Newman to prison: the failure to make clear to him at the
outset of the hearing exactly what he was charged with, and the failure to tell
him he could apply for legal aid as soon as it appeared that he could be facing
imprisonment.
29. It is worth observing that this was in our judgment a paradigm case of need
for advice and representation. Whether Mr Newman was (as he insists) confused
or (as we strongly suspect) stalling, the intervention of a lawyer on his
behalf would have ensured that the judge was presented not with an irrelevant
plea that he had not understood what he was signing or the disastrous response
that there was now no point in going back to the house with the bailiffs, but
with an admission that on 7 June the computers had been moved into the next
room and an assurance that, apart from one which Mr Burgess had without his
knowledge taken away for repairs, they were back where they had been and open
to distraint. We cannot conceive that in such a situation, at least if it was
marked by an apology, Johnson J would have committed Mr Newman to prison.
(2) Interpleader
30. So far we have treated the issue as if it concerned the debtor alone. But
others were at least potentially interested in the goods distrained on.
31. Section 85 of the County Courts Act 1984 authorises recovery of judgment
debts "by execution against the goods of the party against whom the judgment
... was obtained". For the bailiff this poses an immediate problem: what, in
law, are the goods of the debtor? The bailiff cannot conduct a formal
inquiry into title. He is (as Mr Kilcoyne was, we think, ultimately disposed to
accept) entitled to treat any goods in the debtor's possession as the debtor's
goods, provided (for present purposes) that
(a) they are not exempted goods under s. 89(1)(a) - that is to say, tools of
the debtor's trade or household essentials;
(b) they are not manifestly somebody else's - for example because a credible
document, such as a hire purchase agreement, is produced; and
(c) the proceeds of sale of jointly owned goods are accounted for to the joint
owner in due proportion.
32. That a seizure made in reliance on simple possession is not in itself
unlawful follows plainly enough from the statutory provision for interpleader,
which would be unnecessary if any accidental distraint on the goods of someone
other than the debtor were tortious. It corresponds with the protection
accorded by section 98 to the sale of goods in the debtor's possession to which
no claim has been made or is apparent. It corresponds, too, with the provisions
of section 99 which, in short, make the debtor's general property in his goods,
but "not merely a special property" in them, subject to the warrant from the
moment the warrant is applied for; so that, for example, property held by a
temporary bailee or holder of a lien is not open to distraint.
33. It is evident from section 101, which is set out at the beginning of this
judgment, that no particular formality is required for a claim. It is the
district judge whose summons, if he issues one on receiving such a claim, must
be in proper form. The phrase "a claim ... to or in respect of any goods
seized" in subsection (1) is apt to include notice to the district judge
either that the person giving the notice claims a title superior to the
debtor's possessory title in the goods or that a fourth party -
typically a finance company - has such a title.
34. The information known to the court through the bailiff or directly was
that
(a) the goods were those of an unincorporated business in which others had a
stake;
(b) both Mr Newman and Mr Burgess were asserting that the computers were the
latter's;
(c) Mr Burgess had produced documents which purported to show that at least one
of the computers was neither Mr Newman's nor his but a finance company's
property.
This was in our judgment fully enough to require the district judge to issue an
interpleader summons under section 101. In R v Chilton (1850) 15 QB 220
the Court of Queen's Bench held that to constitute a valid interpleader under
the 1846 County Courts Act and Rules, particulars both of the goods and of the
grounds of the claim must be given. Lord Campbell CJ pointed out that the
applicant had failed wholly to give the latter; but Patteson J added:
"It is not, of course, necessary to set out the whole particulars of the title
in all respects."
35. Mr Kilcoyne submitted that the use in section 101(1) of the verb "may"
gives the district judge a residual discretion to issue or withhold a summons.
We cannot accept this reading of a provision which has to do with the
ascertainment of property rights of potential importance to those concerned.
This is in our judgment a subsection which creates a power not otherwise
available to the court, and like all such powers it is to be exercised in all
appropriate cases. What the district judge undoubtedly does have is the
obligation to consider whether the claim is on the face of it sufficient in
detail and credible in substance, and a corresponding area of judgment; but
once a claim meets these elementary tests, it appears to us that the district
judge will have no option but to issue an interpleader summons.
36. Until an interpleader summons was issued and disposed of it was not
possible to know whether the distress was well levied. To the extent that it
was not, no question of unlawful rescue could arise. All of this went by the
board before Johnson J because he was told, correctly, that the district judge
had declined to treat the faxed materials as grounds for interpleading. We do
not know the district judge's side of the story. The Lord Chancellor's
Department has put before us only the evidence of the court manager, and we
therefore have only on hearsay the reasons why the district judge considered it
inappropriate to issue a summons. On the evidence before us, however, a summons
should have been issued, and the failure to do so was an error which unravels
the entire process of arrest and committal which followed it.
(3)Summary
37. For each of the above reasons we consider that the committal of Mr Newman
to prison for rescuing goods of which the bailiff was in walking possession was
contrary to law.
38. We therefore direct that the case be remitted to the county court so that
an interpleader summons may be issued and determined before any further steps
are taken by the bailiff.
Order: Appeal allowed; no order as to costs save legal aid taxation; case
remitted to the county court so that an interpleader summons may be issued and
determined before any further steps are taken by the bailiff. Order does not
form part of approved judgment.