England and Wales Court of Appeal (Civil Division) Decisions

Hughes & Ors v HM Customs & Excise [2002] EWCA Civ 670 (20th May, 2002)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION (ADMINISTRATIVE COURT)
(Mr Justice Hooper) QBACF/2002/0013 & QBACF/2002/0025
(Mr Justice Collins) QBACF/2002/0573

		Royal Courts of Justice Strand, London, WC2A 2LL
		20th May 2002

 


Lord Justice Simon Brown:

1. Receivers appointed by the court pursuant to section 37 of the Supreme Court Act 1981 and RSC Order 30 must look for their remuneration and expenses to the assets within their receivership. Such is the clearly established position at common law. What, however, is the position with regard to receivers appointed under Part VI of the Criminal Justice Act 1988 (“the CJA”) and the Drug Trafficking Act 1994 (“the DTA”), receivers appointed by the High Court with a view to conserving and realising the assets of a defendant in parallel criminal proceedings who may become subject to a confiscation order? How are these receivers to be remunerated and reimbursed? More particularly, is the defendant liable for these expenses irrespective of whether or not he is convicted and a confiscation order is made against him, or only upon the making of such an order? These fundamentally are the questions raised by these three conjoined appeals.
2. Two of the cases (which I shall refer to respectively as “Hughes” and as “R & Another”) were decided together by Hooper J at first instance. His conclusion, set out in a lengthy and thoughtful reserved judgment dated 21 December 2001, was that:

“98. The receiver may not use an unconvicted defendant’s assets to meet the costs of the receivership. Subject to an exception where there has been unreasonable behaviour on the part of the defendant (paragraph 59 above), costs of a receivership may only be met out of a convicted defendant’s assets and out of the amount ordered to be paid by the defendant under any confiscation order subsequently made against him. It follows that an acquitted defendant or a third party affected by a receivership order is not required to bear the receiver’s costs out of those of his assets of which the receiver has taken possession. … the costs of a receivership may only be recovered from the assets of a defendant in the circumstances set out in section 81(5) [of the CJA], namely out of any amount paid by the receiver to the justices’ clerk in satisfaction of a confiscation order.”

3. The third case (“Anderson”) was decided ex tempore by Collins J on 18 February 2002 when a somewhat different conclusion was arrived at. Collins J, whilst stating that he “would certainly follow Hooper J if [he] was dealing with an unconvicted defendant or in relation to third parties whose rights had not yet been determined”, pointed out that Anderson has been convicted, and held that although no confiscation order had yet been made against him, the receiver could recover his costs and remuneration but only insofar as they arose from managing, and only out of, certain specified assets which the defendant acknowledges to be his (and not other assets which the defendant contends are owned by third parties albeit no third party has yet so contended).
4. In all three cases the prosecution (HM Customs & Excise in Hughes and Anderson, the Crown Prosecution Service in R & Another) appeal with the permission of the judge below. It is the prosecution’s case that the receiver’s remuneration and expenses should come in the first place from the estate under his control and then, if a confiscation order is made, from any sums realised and remitted to the justices’ clerk under section 81(5); only if no funds are available from those sources should they come from the prosecutor under section 88(2) of the CJA (the prosecutor then having the possibility in certain cases of reimbursement under section 81(6)).
5. With that brief introduction let me turn next to summarise the essential statutory scheme insofar as it relates to receivers, which I shall do exclusively by reference to the provisions of the CJA, those of the DTA being in all material respects identical.

The Legislative Framework

6. Section 76 of the CJA provides that the High Court’s powers under sections 77 and 78 are exercisable where proceedings have been instituted against any person for a relevant offence or the court is satisfied that a person is to be charged with such an offence and in either case the court is also satisfied that a confiscation order may result.
7. Section 77 deals with restraint orders and provides that the High Court may by such an order “prohibit any person from dealing with any realisable property, subject to such conditions and exceptions as may be specified in the order”. “Realisable property” for these purposes is defined by section 74 to mean “any property held by the defendant” (a definition widened by section 102(7): “property is held by any person if he has any interest in it”) and “any property held by a person to whom the defendant has directly or indirectly made a [relevant] gift”. Section 77(6)(a) provides that a restraint order may be discharged or varied in relation to any property (section 77(7) providing that such an application may be made by any person affected by the order). Section 77(6)(b) provides that a restraint order shall be discharged on the conclusion of the relevant proceedings (“conclusion” being defined by section 102(12) to include the acquittal of a defendant and the satisfaction of any confiscation order made against him). Section 77(8) I must set out verbatim:

“77(8) Where the High Court has made a restraint order, the court may at any time appoint a receiver -

(a) to take possession of any realisable property; and

(b) in accordance with the court’s directions, to manage or otherwise deal with any property in respect of which he is appointed,

subject to such exceptions and conditions as may be specified by the court; and may require any person having possession of property in respect of which a receiver is appointed under this section to give possession of it to the receiver.”

8. Sections 78 and 79 deal with charging orders.
9. Section 80(1) provides that where a confiscation order is made or varied and the proceedings in question have not been concluded and the order or variation is not subject to appeal the High Court may, on an application by the prosecutor, exercise the powers conferred by subsections (2) to (6) of section 80. Those include:

“80(2) The court may appoint a receiver in respect of realisable property.”

The following subsections provide that the court may empower a receiver appointed under section 80(2) or under section 77 or in pursuance of a charging order inter alia to enforce any charge and may order any person to give up possession of realisable property to the receiver, and may empower the receiver to realise any realisable property and so forth (subsection (8) providing that a reasonable opportunity shall first have been given for persons holding any interest in the property to make representations to the court). Section 81 has loomed large in the argument and much of it I must now set out:

“Application of proceeds of realisation and other sums

81(1) Subject to subsection (2) below, the following sums in the hands of a receiver appointed under this Part of this Act or in pursuance of a charging order, that is -

(a) the proceeds of the enforcement of any charge imposed under section 78 above;

(b) the proceeds of the realisation, other than by the enforcement of such a charge, or any property under section 77 or 80 above; and

(c) any other sums, being property held by the defendant;

shall first be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under section 87(2) below and then shall, after such payments (if any) as the High Court may direct have been made out of those sums, be applied on the defendant’s behalf towards the satisfaction of the confiscation order.

(2) If, after the amount payable under the confiscation order has been fully paid, any such sums remain in the hands of such a receiver, the receiver shall distribute them -

(a) among such of those who held property which has been realised under this Part of this Act, and

(b) in such proportions,

as the High Court may direct after giving a reasonable opportunity for such persons to make representations to the court.

(3) The receipt of any sum by a justices’ clerk on account of an amount payable under a confiscation order shall reduce the amount so payable, but the justices’ clerk shall apply the money so received for the purposes specified in this section and in the order so specified.

(4) The justices’ clerk shall first pay any expenses incurred by a person acting as an insolvency practitioner and payable under section 87(2) below but not already paid under subsection (1) above.

(5) If the money was paid to the justices’ clerk by a receiver appointed under this Part of this Act or in pursuance of a charging order, the justices’ clerk shall next pay the receiver’s remuneration and expenses.

(6) After making -

(a) any payment required by subsection (4) above, and

(b) in a case to which subsection (5) above applies, any payment required by that subsection,

the justices’ clerk shall reimburse any amount paid under section 88(2) below.

(7) The justices’ clerk shall finally pay any compensation directed to be paid out of any sums recovered under the compensation order under section 72(7) above.

(8) Any balance in the hands of the justices’ clerk after he had made all payments required by the foregoing provisions of this section shall be treated for the purposes of section 61 of the Justices of the Peace Act 1979 (application of fines, etc) as if it were a fine imposed by a magistrates’ court.” (Any balance goes in short into the Consolidated Fund and not to the prosecutor.)

I need not set out subsections (9) and (10).

10. Section 82(2) provides that the High Court’s powers under sections 77 to 81 “shall be exercised with a view to making available for satisfying the confiscation order … the value for the time being of realisable property held by any person by the realisation of such property”. Section 82(4) provides that such powers “shall be exercised with a view to allowing any person other than the defendant or the recipient of any [relevant] gift to retain or recover the value of any property held by him”.
11. I can move now to section 88:

“Receivers: supplementary provisions

88(1) Where a receiver appointed under this Part of this Act or in pursuance of a charging order takes any action -

(a) in relation to property which is not realisable property, being action which he would be entitled to take if it were such property;

(b) believing, and having reasonable grounds for believing, that he is entitled to take that action in relation to that property,

he shall not be liable to any person in respect of any loss or damage resulting from his action except insofar as the loss or damage is caused by his negligence.

(2) Any amount due in respect of the remuneration and expenses of a receiver so appointed shall, if no sum is available to be applied in payment of it under section 81(5) above, be paid by the prosecutor or, in a case where proceedings for an offence to which this Part of this Act applies are no instituted, by the person on whose application the receiver was appointed.”

12. I must refer finally to section 89:

“Compensation

89(1) If proceedings are instituted against a person for an offence or offences to which this Part of this Act applies and either -

(a) the proceedings do not result in his conviction for any such offence, or

(b) where he is convicted of one or more such offences -

(i) the conviction or convictions concerned are quashed, or

(ii) he is pardoned by Her Majesty in respect of the conviction or convictions concerned,

the High Court may, on an application by a person who held property which was realisable property, order compensation to be paid to the applicant if, having regard to all the circumstances, it considers it appropriate to make such an order.

(2) The High Court shall not order compensation to be paid in any case unless the court is satisfied -

(a) that there has been some serious fault on the part of the person concerned in the investigation or prosecution of the offence concerned, being a person mentioned in subsection (5) below; and

(b) that the applicant has suffered loss in consequence of anything done in relation to the property by or in pursuance of an order under this Part of this Act.

…”

(Subsection (5) names various persons involved in the investigation and prosecution of offences.)

13. RSC Order 115 sets out the rules for the exercise by the High Court of its jurisdiction in proceedings under the CJA and the DTA. (Part I of the Order applies expressly to the DTA and by rule 23 is applied also to the CJA.) Rule 3 provides for an application for a restraint order or a charging order (to either of which may be joined an application for the appointment of a receiver) to be made by the prosecutor. Rule 4(1) provides:

“4(1) A restraint order may be made subject to conditions and exceptions, including but not limited to conditions relating to the indemnifying of third parties against expenses incurred in complying with the order, and exceptions relating to living expenses and legal expenses of the defendant, but the prosecutor shall not be required to give an undertaking to abide by an order as to damages sustained by the defendant as a result of the restraint order.”

14. Under the heading “Receivers”, rule 8(1)provides:

“8(1) Subject to the provisions of this rule, the provisions of Order 30, rules 2 to 8 shall apply where a receiver is appointed in pursuance of a charging order or under sections 26 or 29 [of the DTA, these being mirrored by sections 77 and 80 of the CJA].”

15. RSC Order 30 makes provision for receivers. Rule 3 provides:

“3(1) A person appointed receiver shall be allowed such proper remuneration, if any, as may be authorised by the court.

(2) the court may direct that such remuneration shall be-

(a) fixed by reference to such scales or rates of professional charges as it thinks fit; or

(b) assessed by a costs judge or a district judge.”

16. Rule 5 makes provision for receivers’ accounts:

“5(1) A receiver shall submit such accounts to such parties at such intervals or on such dates as the court may direct.

…

(3) Any party who is dissatisfied with the accounts of the receiver may give notice specifying the item or items to which exception is taken and requiring the receiver within not less than 14 days to file his accounts with the court …

(4) Following an examination by or on behalf of the court of an item or items in an account to which objection is taken the result of such examination must be certified by [the relevant court] and an order may thereupon be made as to the incidence of any costs or expenses incurred.”

17. The point at issue here being one of general application and not dependent upon the facts of any particular case, it is unnecessary to set out in detail the circumstances of these individual cases. A brief account, however, serves to illustrate the sort of situation which arises in practice and to highlight, not least by reference to the substantial sums involved, the obvious importance of the appeals.

Hughes

18. Two of the respondents in Hughes, Nicholas Hughes (“Nicholas”) and C were charged on 12 April 2000 with having conspired to cheat HM Customs & Excise of VAT by dishonestly causing to be made taxable supplies of mobile telephones, receiving payment including VAT, and failing to pay the VAT to the Commissioners. Nicholas was a 50% shareholder in Fones 2 Go (Supplies) Ltd (“the company”), the other 50% shareholder being his brother, Timothy, who was never charged. C was an employee of the company.
19. On 3 May 2000 Sullivan J made a restraint order preventing Nicholas from dealing with his assets, including “shares in, the undertaking and assets held in the name of [the company]”, and preventing the company from dealing in any way with its assets. At the same time Sullivan J appointed Ms Dayman of BDO Stoy Hayward as receiver and she assumed control of the company’s assets. The order included what have become standard provisions in these cases:

“11. The costs of the Receivership shall be paid out of the assets received or managed by the Receiver and in priority to any other payment required or provided for by this Order (other than the costs of realisation provided by paragraph 8(f) above [which gave the receiver power to discharge from the proceeds of the realisation of the defendant’s assets the costs of and incidental to such realisation]) but if no assets or insufficient assets are so received or so managed the costs of the Receivership to the extent of the deficiency shall be paid by HM Customs & Excise.

12. The Receiver shall act in accordance with the letter of agreement [exhibited] and the Receiver shall supply to the defendant copies of any accounts and reports supplied to HM Customs & Excise in accordance with the said letter of agreement.”

20. Paragraph 6 of the letter of agreement (again in common form) reads:

“REMUNERATION

It is proposed to seek an order from the Court that your costs in this matter should be costs in the receivership; that is to say that your costs shall be paid out of the monies you bring in during the course of this receivership. Before drawing any remuneration you shall obtain the written approval of HM Customs & Excise to the payment being made and in default of agreement your remuneration shall be determined by the High Court. In all cases HM Customs & Excise reserves the right to insist upon taxation of all your costs and the costs of any solicitors instructed by you. You will be allowed to draw such remuneration and pay any disbursements from any realisations every two calendar months provided that accounts have been submitted to and approved by HM Customs & Excise.

Should your remuneration and expenses exceed the sum realised, HM Customs & Excise is prepared to indemnify you to the extent of the sum inclusive of your remuneration, costs expenses and disbursements although exclusive of VAT less any sums available to you from the property under your management. …”

21. Timothy made an application to vary that Order but on 8 May 2001, before his application came to be heard, the judge at Cardiff Crown Court directed that not guilty verdicts be entered against Nicholas and C in relation to all counts; following a public interest immunity hearing the Crown had decided to offer no evidence against them. On the following day, 9 May 2001, Moses J discharged the restraint and receivership order, save as against C who on 30 November 2000 had been charged with an unconnected offence.
22. Hooper J’s judgment records:

“12. At the time of the receivership [the company] had a cash balance in its account of some £160,000. [The company] was, so the applicants say, trading healthily and making a profit. With the arrest and subsequent remand in custody of the applicants [the company] ceased trading. The costs of the receivership are some £40,500. The substantial portion of those costs was incurred in following up and bringing into the receivership other assets of Nicholas, said by the receiver not to have co-operated as fully as he might. This is challenged.

…

16. Insofar as C is concerned, a man of modest means and very aggrieved by what has happened (so I am told), the costs of the receivership order incurred in the period from April 2000 to 30 November 2000 [ie between the receivership order and C being charged with an unconnected offence] amounted to some £34,000. Those costs were apparently incurred in tracing down his assets.”

23. Upon the respondents’ application that they should not in the event be held liable for the receiver’s cost, Hooper J deleted those paragraphs in the Order which had permitted the receiver to use the respondents’ assets to meet the costs, indicating finally that:

“Should there be an issue as to unreasonable obstructive behaviour which the [prosecutors] wish to have decided, I shall do so at some appropriate time.”

R & Another

24. On 29 February 2000 both respondents were charged with defrauding a public body. They now face two trials at the Central Criminal Court the first of which, estimated to last six months, is unlikely to begin for many months yet: we are told that some 16 million documents are being examined. On 3 March 2000 Moses J made restraint and receivership orders in what I may call the usual terms, Ms Dayman again being appointed to act the receiver and manager of the respondents’ assets. The restraint order lifted the corporate veil of the respondents’ company and vested its assets in the receiver, the allegation being that the company had been used as a vehicle to carry out the offences. In July 2000 the respondents applied to discharge the orders on the grounds that “the receivership is not necessary and for it to continue will be to the detriment of the defendants and the public interest”. It is not, I think, disputed that the company is well-managed and continues to trade successfully with an annual turnover of some £12.5 million. It engages in a highly specialised business and the receiver contributes little to it. Her essential concern, of course, is to ensure that assets are not removed outside the jurisdiction so as to frustrate any future confiscation order. Her role is restricted essentially to supervising and in effect auditing what is already a professionally audited company.
25. Langley J refused the discharge application on the basis that the court was bound to take a prudential view of the case. Following the failure of that application the respondents by solicitor’s letter dated 27 June 2001 sought undertakings from the prosecution (further to standard undertakings already given, including one to “pay the reasonable costs of anyone other than [the two respondents and their company] which have been incurred as a result of compliance with this order …”) as follows:

“4. In the event of the discharge of this order and the acquittal of the respondent in the criminal proceedings against him, the CPS will pay to the respondent the costs paid by him to the receiver under this order.

5. If the court later finds that this order has caused other loss to the respondent, and decides that the respondent should be compensated for that loss, the CPS will comply with any order the court may make.”

The letter ended:

“We consider that the onerous nature of the restraint orders and the time and expense demanded of our clients in complying with them are such that they ought properly to be reflected in undertakings to compensate the respondents in the event of the prosecution failing. Given the court’s inability to impose such terms upon you without your consent, you will note that, if we do not receive a positive response from you within 14 days, we propose to apply to the court for the discharge of the orders.”

26. Upon the CPS’s refusal (expressly based upon In re Andrews [1999] 1 WLR 1236, to which I shall shortly come) to give such undertakings, the respondents made the further application which became linked to the similar application in Hughes and was ultimately heard by Hooper J. Hooper J’s judgment records:

“21. The receiver has so far invoiced some £376,000 [we are told that this has now increased to some £440,000] in respect of her costs including VAT. All the receiver’s costs, whether incurred in the management of [the company] or otherwise, are being paid by the company. The total bill is expected to be in the region of some £500,000 by the end of the criminal proceedings.”

27. The same order was made below as in Hughes, ie the court deleted from the orders the paragraphs which permit the receiver to use the assets under her control to meet the costs of the receivership.

Anderson

28. On 21 May 2000 the respondent was charged with a large-scale conspiracy to import cocaine and on 21 June 2000 Forbes J made a restraint order against him. On 2 March 2001 the respondent was convicted at Canterbury Crown Court and he was subsequently sentenced to 25 years’ imprisonment. His application for leave to appeal against conviction was refused by the single judge in January 2002; his renewed application to the full court remains outstanding. Confiscation proceedings were, and remain, adjourned; an order is contemplated in the eventual sum of (very approximately) £19 million.
29. On 5 February 2002 a management receivership order was made by consent by Maurice Kay J, the issue of the receiver’s remuneration (before any confiscation order is made) being adjourned in the light of Hooper J’s prior decision in Hughes. That issue came before Collins J on 18 February 2002 with the result already sufficiently indicated in paragraph 3 above.
30. So much for the facts. Anyone interested in their further exposition is referred to the respective judgments below.
31. Having set out the legislative provisions substantially as I have done above, Hooper J next considered in detail this court’s decision in In re Andrews [1999] 1 WLR 1236 upon which the prosecutors place considerable reliance. Andrews, the appellant, was an acquitted defendant. Following his acquittal (with an order that his costs be paid out of central funds) and the discharge of the restraint order made in respect of his realisable property, the receiver released to him the assets taken save for some £10,000 to cover the expenses of the receivership. The appellant thereupon sought against the prosecution (HM Customs & Excise) an order for costs in the civil proceedings (in which the restraint order had been made and the receiver appointed), such costs to include the £10,000 retained by the receiver. The order was sought under section 51 of the Supreme Court Act 1981 which provides that:

“(1) … the costs of and incidental to all proceedings … in the High Court … shall be in the discretion of the court.

(2) … rules of court … may make provision for regulating matters relating to the costs of those proceedings … [it being provided by rule 43.2 that ‘“costs” includes fees, charges, disbursements, expenses, remuneration …’].”

32. Ward LJ, giving the leading judgment in the Court of Appeal, concluded:

“I am, with unfeigned reluctance, compelled to conclude that, even if the expenses of the receivership are within the definition of costs, they are not costs ‘of and incidental to [the] proceedings’. They must lie where they fall.”

33. He then observed that the court had not been addressed upon Article 1 of the First Protocol to the ECHR (the appeal having been heard before the Human Rights Act came into force).
34. Earlier in his judgment Ward LJ had said:

“The case therefore boils down to this. A receiver and manager properly appointed properly recoups her properly incurred costs of the receivership from an asset she has received. Now that the receivership order has been (or is treated by the parties as having been) discharged, should those costs of the receivership lie where they fall?”

35. Having then referred to a number of common law authorities on receivers - notably Gardner -v- London Chatham & Dover Railway Co (No 1) (1867) LR 2 Ch App 201, Boehm -v- Goodall [1911] 1 Ch 155, Evans -v- Clayhope Properties Limited [1988] 1 WLR 358 and finally Mellor -v- Mellor [1992] 1 WLR 517 which “held that the receiver’s lien over the assets gave him a continuing right to possession even after the discharge of the receivership order and accordingly he was entitled to an order charging all the assets available to him during the currency of his receivership with the amount of his costs and remuneration” - Ward LJ continued:

“So much appears to be settled. The ordinary rule is that receivers should not accept their appointment unless satisfied that the receivable assets shall be sufficient to meet their claim for costs and for remuneration or that they would be otherwise indemnified, by contract or by order of the court, by the party responsible for their appointment. In this case there was an agreement between the receiver and HM Customs and Excise that Customs and Excise would indemnify the receiver if she were unable to bring in sufficient assets to meet her costs. That did no more than replicate the statutory provision [under section 88(2) of the CJA] …” (p1243)

36. In short, it appears to have been the common assumption in Andrews that the appellant’s only prospect of recovering the receiver’s expenses was by way of a section 51 order. As to that, Ward LJ would plainly have liked to find for the appellant. His judgment, besides his concluding expression of “unfeigned reluctance”, includes the following passages:

“Though the receivership proceedings were not part of the criminal trial as such, they were incidental to it and my sense of fairness dictates to me that he should be indemnified in respect of any loss he has suffered through these ancillary proceedings. If I had any discretion to exercise, I would unhesitatingly exercise it in the appellant’s favour. [p1244]

… the unfairness to the appellant is manifest to me … I find it intrinsically unfair that the appellant should be indemnified in the Crown Court but not in the Queen’s Bench Division where the proceedings should stand or fall with the criminal proceedings.” (p1245)

37. Having reached, without any expression of regret, the same conclusion that “the remuneration of the receiver is an expense of the receivership not costs incidental to the proceedings in which he is appointed”, Aldous LJ continued:

“I would add that in my judgment Mr Mitchell was right in his submission that this really was a claim for compensation dressed up as an application for an award of costs; and it is therefore most significant that by section 89 Parliament laid down a carefully regulated code for such a claim. Consequently, in my judgment, section 89 is the proper avenue for a compensation claim of this kind, provided of course the claimant can bring himself within the rather strict requirements of the section. I should add as a footnote that RSC Ord 115, r 4(1) specifically stipulates that ‘the prosecutor shall not be required to give an undertaking to abide by an order as to damages sustained by the defendant as a result of the restraint order.’”

38. Hirst LJ merely agreed that the appeal should be dismissed.
39. The respondents’ principal argument with regard to Andrews is that it proceeded upon a false basis, everyone there having wrongly assumed that the receiver had been entitled during the course of the receivership to deduct her expenses from the value of the estate. That argument prevailed before Hooper J and is now maintained before us. The respondents contend, and Hooper J found: (a) that the legislation on its true construction unambiguously provides that the prosecution shall pay the receiver’s remuneration and expenses unless and until a confiscation order is made against the defendant; alternatively (b) that such is the construction to be given to the legislation in the light of section 3 of the Human Rights Act, 1998 to ensure its compliance with the respondents’ rights under Article 1 of the First Protocol. Only secondarily do the respondents (through Mr Newman QC) advance the alternative argument that, to give effect to the respondents’ Convention rights, section 51 could and should be construed more widely now than the Court of Appeal in Andrews, without the benefit of the Human Rights Act, felt able to construe it.
40. The respondents recognise that ever since this statutory scheme was first introduced (in the Drug Trafficking Offences Act 1986) the legislation has been applied as if statutory receivers (as I shall call them) are entitled to recover their expenses from the assets under their control just like their common law counterparts. As Hooper J recorded, “The [respondents] agree that what they describe as the ‘clear and unambiguous scheme’ of the Act has not been followed. ‘The departure from that scheme has been a wholesale one since the commencement of the Act’”. As against that, however, the respondents cite with relish from Mitchell, Taylor & Talbot’s work Confiscation and the Proceeds of Crime, 2^nd Edition (January 1997), paragraph 3-112, under the heading “Remuneration of Receivers”:

“… the scheme of the legislation is that the receiver’s costs should be met by the prosecutor and then if the defendant is convicted and a confiscation order is made the prosecutor will be reimbursed from the sums paid in satisfaction of the compensation order.”

41. Plainly, however, the true construction of the legislation can turn neither on the way it has been applied down the years nor on the views expressed by legal commentators. It is time rather to consider the language of the statute itself.
42. The respondents’ argument on the statute focuses mainly on sections 81(5) and 88(2) which alone actually refer to the receiver’s “remuneration and expenses”. As has been seen, section 81(5) provides that (after paying any insolvency practitioner’s expenses) “the justices’ clerk shall next pay the receiver’s remuneration and expenses”, providing only that the clerk was paid the money by the receiver (or in pursuance of a charging order) in the first place. Section 88(2) provides that, if the receiver is not paid under section 81(5), “[A]ny amount due in respect of [his] remuneration and expenses” shall be paid by the prosecutor (with the prosecutor then having a right to be reimbursed under section 81(6) if, say, the justices’ clerk has received monies from other sources). Unless a confiscation order has been made, runs the argument, no money will have been paid to the justices’ clerk out of which the receiver can recover his remuneration and expenses under section 81(5). Accordingly, he must in those circumstances look to the prosecutor alone for payment. That, indeed, is precisely what section 88(2) appears to require. Nor, submit the respondents, is this in the least surprising: fairness dictates that only in the event of the defendant being convicted and a confiscation order made against him should he bear the costs of the receivership. Ward LJ expressed himself strongly of that view in Andrews, and some years earlier Schiemann J in In re W (The Times, 13 October 1994), had adopted the same approach in requiring the prosecutor to pay the costs of restraint proceedings upon the defendant’s acquittal:

“If he is acquitted, [the accused person’s] assets are unfrozen. The question essentially is: should the innocent individual pay the costs of taking part in proceedings initiated by the Commissioners of Customs & Excise or should the public at large? In my judgment it should be the public at large. Prosecutions are launched on our behalf, and if someone is acquitted by the verdict of the jury, them one can see in retrospect that he should not have been troubled in the matter. There is no blame to be attached to Customs & Excise, but it seems right to me that in principle the public should pay.”

43. The respondents urge that that reasoning with regard to the costs of restraint proceedings applies with equal force to the remuneration of receivers.
44. The first argument against the respondents’ approach is this: a receiver’s expenses may well include all sorts of outgoings which on their face plainly ought to be borne out of the estate under his management. Take just a few examples. The receiver may insure or repair the defendant’s property. He may spend considerable time and incur all sorts of expenses (travelling costs and the like) managing what might otherwise be inadequately managed property or business activities. The defendant may be in custody on remand, perhaps for a substantial period, and the receiver may have to conduct his entire business. He will, after all, be responsible for it as a principal. If, say, the defendant were running a hotel, the receiver would have to engage and pay staff and incur all the manifold other expenses of such an enterprise. Sections 81(5) and 88(2) refer to the receiver’s expenses as well as his remuneration. Although at one point in the argument the respondents sought to distinguish between different kinds of expenses - to allow the receiver, for example, to charge upon the estate for a replaced boiler - no such distinction is in truth available. As certainly Mr Purnell QC acknowledged, if the respondents’ argument be right, the prosecution would ultimately have to bear all these expenses unless ultimately a confiscation order were made. But that, he submits, unfortunate for the prosecution though it is, is the price to be paid for badly drafted legislation - for trying to bolt onto a new statutory restraint scheme certain features of the common law jurisdiction. The argument sits a little uneasily alongside Mr Brodie’s submission that this legislation provides a “plain, comprehensive, sensible and fair statutory scheme”, but let that pass: the real question is whether Parliament could have intended to leave the prosecution liable for all the expenses of a receivership unless only a confiscation order were made, and whether, in particular, sections 81(5) and 88(2) compel such a result.
45. Mr Mitchell QC’s central argument to the contrary focuses first on the use of the word “receiver” to describe the person being appointed under this legislation to conserve, manage and realise assets. A receiver is a recognisable creature of the common law, an officer of the court, someone whose essential rights, powers and duties have been established down the years. It is not apparently disputed that a receiver appointed under the CJA - despite the statute’s silence on the matter - will have the right, for example, to bring an action or to sell property. Why then, unless the statute expressly so provides, should he be denied the other ordinary consequences of his receivership, including not least the right (indeed the requirement) to recover the costs of the receivership from the assets under his control? Take a receiver appointed under section 77(8) (who for convenience can be called a management receiver, in contrast to an enforcement receiver appointed under section 80(2) to realise the defendant’s assets once a confiscation order has been made). A management receiver will manifestly have to be paid his remuneration and expenses on an interim basis during the (often protracted) course of his receivership; so much is recognised on all sides. In any ordinary receivership these costs would be met out of the managed assets and that, certainly, is how payment has always been made under the CJA and DTA - generally, indeed, by specific orders of the court made on the receiver’s appointment. Do sections 81(5) and 88(2) dictate to the contrary?
46. At first blush one of the respondents’ stronger arguments is that section 81(5) really makes little sense if the receiver can in any event deduct his costs from the assets under his control. Why, they ask rhetorically, would he in those circumstances pay over to the justices’ clerk a gross sum of money so as to enable the clerk then to pay his remuneration and expenses? Inevitably, he would first deduct them. There is, however, an answer to this question and it provides, perhaps, the key to a proper understanding of the remuneration provisions of the statute. The reason why it is necessary, once a confiscation order has been made, for a receiver (whether appointed initially as a management receiver or only later as an enforcement receiver) thereafter to pay over any sum to the justices’ clerk gross of his remuneration and expenses is because, as provided by section 81(3), that sum operates to reduce the amount payable under the confiscation order. In the great majority of cases the amount of the confiscation order is determined not by reference to the calculated benefit of the defendant’s criminality, but rather by reference to the substantially lesser value of his realisable property. Once the latter has been established and the confiscation order made, it would clearly be wrong to deplete the value of the defendant’s assets by deducting the receiver’s costs until such assets have been paid to the justices’ clerk and thus reduced the amount payable under the order.
47. That is not to say, however, that before any confiscation order is made the receiver cannot in the usual way recover his remuneration and expenses from the assets, and nor is that precluded by section 88(2). Section 88(2) is simply one of two “supplementary provisions” for receivers and its effect is merely to ensure that if in any case (including where no proceedings have been instituted - see the concluding part of the sub-section) the receiver has not been paid in full, he shall be paid by the prosecutor or whoever else was responsible for his appointment. I have no difficulty in construing the words “[a]ny amount due in respect of the remuneration and expenses” as meaning any such amount outstanding irrespective of whatever may have been paid in the past. Indeed, the words “any amount due in respect of” at the beginning of subsection (2) may be thought strictly superfluous were the subsection to be referring to the whole of the remuneration and expenses since appointment. Similarly “the receiver’s remuneration and expenses” in section 81(5) can refer equally to any outstanding such amounts as to their entirety during the whole course of the receivership.
48. There is a further difficulty in the respondents’ approach. It arises with regard to defendants who fail to cooperate in the receivership. As will have been seen from paragraph 98 of Hooper J’s judgment (see paragraph 2 above), he held that if the defendant increases the costs of the receivership by unreasonable obstructive behaviour - a factual issue left outstanding in Hughes (see paragraph 23 above) - an exception arises to the general rule. In paragraph 59 of his judgment, Hooper J had said that:

“… should a defendant increase the costs of the receivership by unreasonable obstructive behaviour, the receiver could have a remedy against a convicted defendant against whom a confiscation order has been made, by seeking payment of the increased amount under section 81(1) and could have a remedy against an acquitted or convicted defendant under section 51 [of the Supreme Court Act, 1981].”

(Hooper J added in paragraph 60 that “the receiver could also, of course, seek an order from this court preventing the obstructive behaviour”)

49. This seems to me an unsatisfactory conclusion. In the first place it weakens the respondents’ central argument and, indeed, the judge’s central holding as to the true construction of the statute (as, of course, does Collins J’s substantially more flexible view as to how the statute operates in a case like Anderson). Secondly, however, the point at which non-cooperation becomes unreasonable obstructive behaviour will often be difficult to determine, as will the additional costs thereby occasioned. Given that the essential purpose of the receivership is to preserve the defendant’s assets (either because, through being in custody, he is unable to do so himself, or so as to safeguard them “from dissipation and secretion” - see In re P (Restraint Order: Sale of Assets) [2000] 1 WLR 473, 482), the question who is to bear the costs of the receivership should no more turn on the extent of the defendant’s cooperation than on the extent to which the receivership in fact benefits rather than depletes the estate.
50. In short, persuasive though at first blush the respondents’ arguments appeared, and readily though I acknowledge the principle urged by Mr Chawla QC that any doubt as to the proper construction of expropriatory legislation of this nature must be resolved in favour of the defendant, I have come to the clear conclusion that the respondents’ approach can be seen to misunderstand the scheme of the legislation and to be unsustainable. Statutory receivers are to be treated precisely as their common law counterparts save to the extent that the legislation expressly provides otherwise. The statute is not to be regarded as an entirely self-contained code incorporating nothing from the common law. The fact that, unusually (although not uniquely - consider such cases as Hoffman-la-Roche -v- Secretary of State for Trade & Industry [1975] AC 295 and Attorney-General -v- Wright [1988] 1 WLR 164), the prosecutor cannot be required to give a cross-undertaking in damages (see RSC Ord 115, r 4(1) above) does not constitute so fundamental a difference between statutory and common law receivers as to give rise to wholly discrete schemes for their remuneration.
51. What then of the human rights arguments? In particular, do the respondents enjoy rights under Article 1 of the First Protocol which require Part VI of the CJA (or, failing that, section 51 of the Supreme Court Act) to be construed differently from how, as already indicated, in my judgment it otherwise falls to be construed? Article 1 provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No-one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of the State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

52. It is common ground that the regime of restraint and receivership orders is not contrary to Article 1 - see Raimondo -v- Italy (1994) 18 EHRR 237. There is a significant public interest in ensuring that criminals do not profit from their crimes and that the proceeds of crime are confiscated in the event of conviction. It is acknowledged also that this public interest extends to preventing the dissipation of assets prior to trial to ensure that any confiscation order made will not be thwarted.
53. The respondents submit, however, that it by no means follows that the costs of such a regime should fall onto an unconvicted or acquitted defendant. Where, as here, competing rights have to be considered, questions arise as to whether the measures taken are (i) in the public interest, (ii) appropriate for achieving its aim, (iii) proportionate, and (iv) achieve a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s right - see, for example Sporrong & Lonroth -v Sweden (1982) 5 EHRR 35 and Lithgow -v- United Kingdom (1986) 8 EHRR 329. In pursuit of the common cause an excessive burden should not be imposed upon any individual. Accordingly, an unconvicted or acquitted defendant (and still more obviously an innocent third party) should not be deprived of his property (or, if he is, he should thereafter be compensated for it).
54. Hooper J accepted this argument below:

“96. In my judgment to deprive an unconvicted defendant of his assets or to deprive a third party of his share of lawfully obtained assets which he jointly owns with a defendant (whether unconvicted, convicted or acquitted) to pay for the costs of receivership is a disproportionate measure in the fight against crime and thus a breach of Article 1 of the First Protocol. It would upset the fair balance which should be struck between the protection of property and the general interest.”

55. I entirely accept that an acquitted (or indeed unconvicted) defendant must for these purposes be treated as an innocent person - see particularly Minelli -v- Switzerland (1983) 5 EHRR 554 and Sekanina -v- Austria (1994) 17 EHRR 221 (I did not understand Mr Newman’s reliance on Article 6 of the Convention, essentially for the presumption of innocence under Article 6(2), to extend beyond this proposition.). I cannot accept, however, that for this reason it must be regarded as disproportionate, still less arbitrary (another contention advanced by the respondents), to leave the defendant against whom restraint and receivership orders have been made uncompensated for such loss as they may have caused him - unless, of course, by establishing “some serious fault” on the prosecutor’s part he can bring himself within the strict requirements of Section 89.
56. It is common ground that acquitted defendants are not, save in the most exceptional circumstances, entitled to compensation for being deprived of their liberty whilst on remand or indeed for any other heads of loss suffered through being prosecuted. In my judgment it is no more unfair, disproportionate or arbitrary that they should be uncompensated too for any adverse effects that restraint and receivership orders may have had upon their assets. I simply cannot recognise in this legislative scheme objections of the sort identified by Sir Andrew Morritt VC respectively in Wilson -v- First County Trust [2001] All ER 229 (with regard to consumer credit agreements) and in Aston Cantlow PCC -v Wallbank [2001] 3 All ER 393 (condemning as arbitrary the historical form of taxation constituted by the liability for chancel repairs of former rectorial glebe land) both relied on by Mr Purnell.
57. Legal costs (construing this terms as widely as required by Rule 43.2 - see paragraph 31 above) are one thing; the losses consequent on prosecution - and any restraint and receivership proceedings ancillary to such prosecution - are another. Whilst, therefore, I agree with Schiemann J’s judgment in In re W that the costs of restraint proceedings, upon an acquittal, should indeed be borne by the public rather than by the acquitted defendant, I do not agree that such an approach carries across to the remuneration and expenses of any linked receivership. I respectfully share the view expressed by Aldous LJ in Andrews that what the respondents in these cases are really claiming is compensation and in my view this is so whether, as there, the claim was advanced under section 51 of the Supreme Court Act, or whether, as here, the argument is put principally in terms of reading down the CJA so as to preclude receivers from recovering their remuneration and expenses from unconvicted defendants’ assets in the first place.
58. I should say a word next about third parties, not least recognising that one of the respondents in the Hughes case, Timothy, is to be so regarded. The court should, in my judgment, be astute wherever possible to protect the rights and interests of third parties. As persons affected by a restraint order they have, of course, the right under section 77(7) to seek its variation or discharge - a right in fact exercised here by Timothy Hughes, although his application was in the event overtaken by the not-guilty verdicts entered against the other respondents. The court can if necessary expedite such an application. Quite why Timothy’s application here was not progressed is unclear. The court is required too under section 82(4) (see paragraph 10 above) to exercise its powers “with a view to allowing [an innocent third party] to retain or recover the value of any property held by him”. Note also the possibility in certain circumstances of compensating a third party under section 88(1) if the receiver has acted negligently in relation to non-realisable property. It is difficult to regard this legislation as riding roughshod over the rights of innocent third parties.
59. It follows from all this that in my judgment (i) the restraint and receivership legislation has been correctly understood and applied down the years to allow the receiver, unless and until a confiscation order is made, to recover his costs from the assets under his control, and (ii) that I do not regard its operation in this way, without compensation for the acquitted defendant (unless under section 89), as being in conflict with the human rights (in particular the property rights) of those affected. I would accordingly allow the respective prosecutors’ appeals in all three cases.
60. I would nevertheless add this. Given that restraint and receivership orders can, as perhaps these very cases show, bear heavily upon the individuals involved and may leave acquitted defendants with substantially depleted assets, the court should, in deciding whether initially to make, and whether thereafter to vary or discharge, such orders, weigh up the balance of competing interests with the greatest care. The Crown’s concern to safeguard an accused’s property against dissipation or removal abroad must always be weighed against the possibility that the price to be paid will fall upon an innocent man. It is important that this legislation continues to be operated to strip criminals of their ill-gotten gains. But it is important too that the court keeps a close control over those it appoints to act as receivers on its behalf and that costs are not too readily incurred, particularly before any confiscation order is made.
61. There is one final point to be made. Paragraph 6 of the letter of agreement in Hughes’ case (see paragraph 20 above), incorporated into the court’s restraint and receivership order by paragraph 11 of that order (see paragraph 19 above), both in common form, provides for the receiver’s remuneration to be agreed between the receiver and the Commissioners and only in default of that by the High Court. As we observed during the course of the hearing, this arrangement is difficult to reconcile with RSC Ord 30, r 3 (see paragraph 15 above). Although the issue is not strictly before us on these appeals, first instance judges who make these orders should be alerted to the need under rule 3 to retain control over the way the receiver’s remuneration is fixed.

Lord Justice Laws:

62. For the reasons set out by Simon Brown and Arden LJJ, I, too, would allow these appeals.

Lady Justice Arden:

63. I agree with Simon Brown LJ that this appeal must be allowed for the reasons which he gives. I would like to add some additional reasons and observations of my own.

The Statutory Construction issue

64. I agree that the receiver may be paid her remuneration out of the assets over which she is appointed. Further support for this conclusion can be found in other aspects of the statutory scheme in Part VI of the Criminal Justice Act 1988 (as amended). That scheme contains no provisions for the removal or retirement of a receiver or for the payment of remuneration to a former receiver. In the normal way, when a receiver vacates office, he continues to be entitled to his lien arising as a matter of law until all the costs of the receivership and his remuneration have been paid. Section 77(8) empowers the High Court to appoint the receiver “subject to such exceptions and conditions as may be specified by the court”. The absence of any express reference in Part VI to the receiver’s lien, and to what is to happen when a receiver vacates office gives rise, in my judgment, to the implication that Parliament left this matter to the High Court to be dealt with in the terms of the order made by it.
65. In addition, in section 87(1), where an insolvency practitioner (for example, a liquidator or trustee in bankruptcy) is appointed and by mistake realises realisable property which is subject to a restraint order, section 87(1) provides for him to receive his expenses and remuneration out of the assets and not from the prosecution. (Section 87(1) contains a specific reference to a lien because the insolvency practitioner is in the circumstances postulated a trespasser and therefore would not have a lien as a matter of law). In my judgment, it is difficult to see why an insolvency practitioner should have a lien in these circumstances if a receiver who was acting properly under the terms of the order of the court does not have such a lien.

The Convention point

66. The essential issue is whether the statutory scheme with which this appeal is concerned is reasonably proportionate. The starting point is that when the provisions of the statutory scheme are examined in detail it is clear that the Legislature took the view that it was in the public interest that restraint and receivership orders should be made in the restricted circumstances set out in Part VI of the Criminal Justice Act 1988 (as amended). It is unnecessary for me to describe the scheme comprehensively because the salient features of it have already been described by Simon Brown LJ. There are additional conditions for the protection of persons adversely affected in sections 76 and 77. For instance, the court cannot exercise the power to make a restraint order if there has been undue delay in bringing the proceedings or a prosecution is unlikely to be proceeded with (section 76(1A)). The court cannot appoint a receiver unless there is a restraint order in place (section 77(8)). Moreover, the court cannot make a restraint order where a person has not yet been charged unless the court is satisfied that the person is to be charged and that the making of the confiscation order may result from proceedings for that offence (section 76(2)). Further, if proceedings are not brought within a reasonable time, the court must discharge the restraint order (section 76(4)). Finally, there is an unqualified jurisdiction to vary or discharge a restraint order on the application of any person (section 77(7)).
67. In addition, the court is given power to award compensation to third parties whose assets are mistakenly seized (section 88(1)). Such compensation can also be awarded to defendants who are charged but not convicted (section 89(1)). This compensation could in an appropriate case include reimbursement of receivership costs and expenses, but under section 89(1) it is only available if there has been a serious default on the part of the prosecutor and the proceedings would not otherwise have been instituted. In my judgment, contrary to the view taken by the judge, the proportionality of a restriction of this nature on compensation for unconvicted defendants has to be viewed in the light of the Legislature’s view that restraint and receivership orders properly made are in the public interest. So viewed, in my judgment, the restriction is proportionate when viewed against the aim sought to be achieved.
68. However, a discrete issue arises about the absence of a right to compensation for defendants who were never charged and third parties who are affected by a receivership order where the defendant was never charged. Such persons have no right to compensation because section 89(1) only applies if proceedings have been instituted but the defendant has been acquitted (or pardoned). It is not clear why these third parties and defendants are excluded from section 89(1). The point has not been argued, but I would reserve for argument in a future case the question whether in a situation where there is a serious default by the prosecutor there would be a violation of Convention rights if compensation were not available for this group of persons.

Remuneration

69. I agree with what Simon Brown LJ has said about the terms of any order of the court as to the receiver’s remuneration. The practice of the Chancery Division is set out in the ‘Guide for Receivers in the Chancery Division’, referred to at paragraph 22.6 of the Chancery Guide (Civil Procedure, Vol 2 (2002) para. 1 – 139). This states that:-

“The receiver’s remuneration must be authorised by the court. Unless the court directs it to be fixed by reference to some fixed scale, or percentage of rents collected, it is assessed by the court, but in the first instance the receiver should submit his remuneration claim to the parties for approval. If the claim is accepted by the parties, the court should not normally be concerned to intervene, but it must at least formally authorise the remuneration.”

70. The commentary in the Civil Court Practice, 2002, Vol. 1, page 1219 is to the same effect. The annotation to RSC Order 30, r.3 in Civil Procedure, Vol.1 (2002) page 1281 contains a less full description of the practice set out in the passage quoted in the preceding paragraph and needs to be read with care as it makes no express reference to RSC Order 30, r.3(1) (summarised in the first sentence of that passage). RSC Order 30, r.3(1) is an important provision which should not be overlooked.
71. In the circumstances, I agree that these appeals should be allowed.
Order: Appeals allowed with costs here and below against the various unsuccessful respondents. Permission to appeal to the House of Lords refused, but provided a petition to appeal to the House of Lords is filed within 28 days and pursued with due expedition, there will be no assessment of costs until it is disposed of. Further orders made according to the draft provided by counsel as amended after the judgment was handed down. (Order does not form part of the approved judgment)