Neutral Citation Number: [2017] IECA 245
Finlay Geoghegan J.
Irvine J.
Hedigan J.2015/466
ACC LOAN MANAGEMENT LIMITED
PLAINTIFF/RESPONDENT
DEFENDANT/APPELLANT
DEFENDANT
JUDGMENT delivered on the 31st day of July 2017 by Ms. Justice Finlay Geoghegan
1. This appeal raises important questions in relation to the jurisdiction of the High Court pursuant to s. 28(8) of the Supreme Court of Judicature (Ireland) Act 1877 and s. 8(2) of the Courts (Supplemental Provisions) Act 1961 to appoint a receiver by way of equitable execution over property of a judgment debtor. Orders 50, r.6 and 45, r. 9 of the Rules of the Superior Courts apply to the exercise of the jurisdiction.
2. The factual background is that the plaintiff obtained judgment against the defendants on 25th February, 2011 in the sum of €1,064,747.66. The defendants are brothers and farm certain lands in County Meath.
3. The judgment remained unsatisfied in October, 2011 and on 4th October, 2011 the High Court (Kelly J. as he then was ) made an order pursuant to O. 45, r. 9 of the Rules of the Superior Courts that Ms Riordan, Solicitor, be appointed as receiver by way of equitable execution (without salary or security) in respect of “such payments as are due to be received by the First Named Defendant [Mark Rickard] from the Department of Agriculture, Fisheries and Food under the Single Payment Scheme as will satisfy the plaintiff’s said judgment and costs …”
4. That order was made ex parte with liberty to the first named defendant (“the appellant”) to apply to vary or discharge. No such application appears to have been made.
5. Thereafter the Department of Agriculture was notified and by June, 2015 a sum of €525,877.40 was received by the receiver from the Department pursuant to the said order.
6. By letter of 25th March, 2015 the Department notified the plaintiff’s solicitor that the Single Farm Payment Scheme had ceased on 31st December, 2014 and had been replaced by the “Basic Payment Scheme”. The letter stated that as a result “the Department will not have a sound legal basis to transfer funds owed by a debtor to your client/s. In the circumstances, you should check with your client/s as you may wish to consider a court application for a revised Garnishee Order.”
7. Thereafter a motion was brought by the plaintiff seeking an order of the High Court varying the order made on 4th October, 2011 so as to provide that the receiver “will be appointed over such payments as may be received in respect of the Basic Payment Scheme”. The application was brought on notice to the appellant. It was grounded on an affidavit of Damien Walsh, a case manager of the plaintiff, to which he exhibited the ‘Helpsheet/Terms & Conditions for the 2015 EU Basic Payment Scheme (BPS)/GREENING Payment and Other 2015 Area-Based Schemes’ issued by the Department. He also deposed that there remained outstanding a sum of €820,686.44 due by the appellants to the plaintiff on the 2011 judgment.
8. The application was opposed on behalf of the first named defendant, the appellant. The appellant swore a short affidavit which contains, in part, legal argument and disputes the entitlement to the orders sought. He deposes inter alia that:
“The monies due to me previously under the Farm Payment Scheme and now under the Basic Payment Scheme are payments from the European Commission for the support of farm incomes and production throughout the European Union. As such they are in the nature of or akin to emoluments or earnings and ought not to be the subject of an Order appointing a Receiver by way of Equitable Execution.”
9. By order of 13th July, 2015 the High Court (McGovern J.) made an order that the order of 4th October, 2011 “be varied to provide that the Receiver will be appointed over such payments as may be received in respect of the Basic Payment Scheme”.
10. A short agreed note of the reasons given by the trial judge was furnished to this Court. It indicates that the trial judge took the view that the facts had not altered from the time of the original order, save that the appellant did not contest the original application. He considered that there was only a change to the nomenclature of the Scheme and the reasons pursuant to which Kelly J. made the order had not changed. He also referred to the divergence of opinion of judges and indicated that he accepted the line of reasoning of Peart J. in O’Connell. This Court has no note of the reasons for which Kelly J. made the original order (which is not under appeal).
Appeal
11. The order of the High Court under appeal is expressed to be a variation of the 2011 order. Counsel for the appellant submits that it was in substance a new order. The terms of the scheme exhibited on behalf of the plaintiff states that the Basic Payment Scheme (BPS) “is being introduced in 2015 as part of the new measures in the reform of the Common Agricultural Policy. The Basic Payment Scheme has replaced the Single Payment Scheme (SPS). All entitlements held under SPS expired on 31 December 2014. A new set of entitlements will be allocated in 2015 to those eligible for an allocation under the BPS.”
12. I am satisfied that the Court must consider the order of the High Court of the 13th July, 2015 as in substance a standalone order to appoint a receiver by way of equitable execution over such payments as may be received (or receivable by the appellant) in respect of the Basic Payment Scheme.
13. Counsel for the appellant relied in submission on two distinct lines of argument to contend that the High Court judge was in error in making the order.
14. First he submitted that the High Court judge was in error in relying upon the judgment of Peart J. in O’Connell v. An Bord Pleanála [2007] IEHC 79 and that he ought to have done as Hogan J. did in Flanagan v. Crosby [2014] 1 IR 576 and follow the High Court decisions in National Irish Bank v. Graham [1994] 1 IR 215 and Honniball v. Cunningham [2010] 2 IR 1, to the effect that receivers by way of equitable execution may only be appointed over equitable interests and not legal interests in property.
15. Second he submitted that a receiver may not be appointed over future salaries, earnings or wages, and that the BPS payment is a payment of this nature. He also submitted that even if the BPS payments were not in the nature of salaries, earnings or wages, a receiver may not be appointed over the BPS payments as they are future payments.
16. Counsel for the respondent disputed that O’Connell was wrongly decided and seeks to rely upon observations made by Hogan J. in Flanagan v. Crosby as to the absence of reasons, other than the High Court judgments by which he considered himself constrained, according to which the appointment of receivers should be limited to equitable interests rather than legal interests.
17. He also relied upon a series of English decisions, considered below, as authority for a jurisdiction to appoint a receiver over future payments.
18. He also identified the nature of the appellant’s interest in the BPS payments as being a chose in action, namely, a right to make a claim under the BPS, and submitted that there was authority to support a jurisdiction to appoint a receiver over a chose in action.
19. It was not in dispute that the appellant’s entitlement to receive the BPS payments is a legal chose in action.
Issues
20. The issues to be addressed in this appeal may be summarised as follows:
21. To consider these it is necessary to consider the origins of the jurisdiction to appoint a receiver by way of equitable execution and the case law.
Is the power confined to equitable interests in property?
22. Section 28(8) of the Supreme Court of Judicature (Ireland) Act 1877 (as applied by s. 8(2) of the Courts (Supplemental Provisions) Act 1961) continues to be the basis for the jurisdiction exercisable by the High Court to appoint a receiver by way of equitable execution. It provides:
“28(8) A mandamus or an injunction may be granted or a receiver appointed by an interlocutory order of the Court in all cases in which it shall appear to the Court to be just or convenient that such order should be made and any such order may be made either unconditionally or upon such terms and conditions as the Court shall think just.”
23. Order 50, rule 6 of the Rules of the Superior Courts repeats in almost identical terms this power. However the jurisdiction derives from the Act of 1877. That jurisdiction relates to the appointment of all receivers and is not confined to the appointment of a receiver by way of equitable execution. Order 45, rule 9 applies specifically to an application for the appointment of a receiver by way of equitable execution. It provides:
“In every case in which an application is made for the appointment of a receiver by way of equitable execution, the Court in determining whether it is just or convenient that such appointment should be made shall have regard to the amount of the debt claimed by the applicant, to the amount which may probably be obtained by the receiver, and to the probable costs of his appointment, and may, if it shall so think fit, direct any inquiries on these or other matters, before making the appointment. The order shall be made upon such terms as the Court may direct.”
24. It is long established that the general power to appoint receivers under s. 28(8) of the Act of 1877 includes the appointment of a receiver by way of equitable execution.
25. The judgment of Keane J. in the High Court in National Irish Bank Limited v. Graham [1994] 1 IR 215 is the first modern Irish authority which decides that the appointment of a receiver by way of equitable execution is confined to cases in which a debtor “enjoys an equitable interest in property which cannot be reached by legal process”. I draw attention to the fact that that is a judgment given by Keane J. as a High Court judge, and whilst obviously any judgment of Keane J. is deserving of great respect, it is not binding on this Court. Regrettably there appears to have been some confusion about the status of this judgment, deriving possibly from the fact that in the second edition of Keane, “Equity and the Law of Trusts in the Republic of Ireland” (2011) at para. 21.07, it is referred to as a decision of the Supreme Court. It was treated as such by the High Court judge in Start Mortgages Limited v. Doheny [2014] IEHC 656 who considered it to be binding on her.
26. In Graham the application, inter alia, was for the appointment of a receiver by way of equitable execution over a milking herd. The bank had obtained a judgment for £3,543,840.96 and had sued out an order of fieri facias. Keane J. at p. 222 stated:
“Nor is this a case in which it would be appropriate to appoint a receiver by way of equitable execution over the milking herd. It is clear that the jurisdiction to appoint such a receiver is confined to cases in which a debtor enjoys an equitable interest in property which cannot be reached by legal process. The law was thus stated by Fry L.J. in In re Shephard (1889) 43 Ch. D. 131 at p. 138:—
“A receiver was appointed by the Court of Chancery in aid of a judgment at law when the plaintiff showed that he had sued out the proper writ of execution, and was met by certain difficulties arising from the nature of the property which prevented his obtaining possession at law, and in these circumstances only did the Court of Chancery interfere in aid of a legal judgment for a legal debt.”
In Holmes v. Millage [1893] 1 QB 551, Lindley L.J. said at p. 555 that:—
“The only cases of this kind in which Courts of equity ever interfered were cases in which the judgment debtor had an equitable interest in property which could have been reached at law, if he had had the legal interest in it, instead of an equitable interest only . . . It is an old mistake to suppose that, because there is no effectual remedy at law, there must be one in equity.”
In the present case, the plaintiffs meet none of the requirements laid down by these decisions. The defendants are the legal owners, and not merely the owners in equity, of the milking herd. There is no impediment to the execution of the writ of fieri facias arising from the nature of the defendants' interest in the herd. There is in the result no ground for the appointment of a receiver by way of equitable execution.”
27. The reason for which the authorities cited by Keane J. refer to the circumstances in which a receiver was appointed by the Court of Chancery is the determination in a number of decisions at the end of the nineteenth century that the statutory jurisdiction conferred on the courts by s. 28(8) of the Act of 1877 (and its English equivalent in s. 25(8) of the Supreme Court of Judicature Act 1873) did not confer on the Court power to appoint a receiver by way of equitable execution in a case where prior to the Judicature Acts no court could have granted such relief.
28. The issue was next addressed by Laffoy J. in the High Court in Honniball v. Cunningham [2010] 2 IR 1 where she considered what was stated by Keane J. in National Irish Bank Limited v. Graham. On the facts of Honniball, she did not agree that the principle as stated by Keane J. operated against the plaintiff in the manner suggested by the defendant. The facts are not relevant to the issue of principle I have to consider in this appeal. She then continued, and stated at p. 16:
“The principle, as I understand it, is that the court will not appoint a receiver by way of equitable execution over property of which the judgment debtor is the legal owner and which can be the subject of legal process. The facts in National Irish Bank Ltd. v. Graham illustrate that point very clearly: the defendants were the legal owners of the milking herd and there was nothing to stop the sheriff seizing the milking herd on foot of the fi. fa. The principle is that the equitable remedy is only available where the judgment debtor has only an equitable interest in property against which the judgment creditor seeks recourse.”
29. The focus of the issues in dispute in O’Connell v. An Bord Pleanála [2007] IEHC 79 appears to have been different. The primary issue appears to have been whether or not a receiver by way of equitable execution may be appointed to receive future debts. In that decision Peart J. appointed a receiver by way of equitable execution over “so much of any sum payable to [the judgment debtor] on foot of any settlement of her claim for damages or on foot of any award of damages made by the Court in proceedings… as may be required to satisfy either in whole or in part the judgment for costs in the within proceedings.” The judgment debtor’s claim in question, in a separate pending action, was a claim for damages for personal injuries.
30. The judgment in O’Connell refers to Graham but not to the issue as to whether or not the Court may appoint a receiver by way of equitable execution where the property in question is a legal as distinct from an equitable interest of the judgment debtor. Peart J. referred to Graham in the following context where he stated:
“The power to appoint is not itself execution but rather an equitable relief in aid of execution, in circumstances where there is some obstacle or hindrance to legal execution. Where the normal methods of legal execution are sufficient, for example where there are goods of the judgment debtor which can be seized on foot of a writ of fieri facias, a receiver will not be appointed – see National Irish Bank Ltd. V. Graham [1994] 1 IR. 215.”
31. As appears below, the above statement of principle by Peart J. in reliance on Graham is, and remains, correct. Peart J. did not refer expressly to the issue as to whether the appointment is confined to equitable interests in property or to the judgment of Laffoy J. in Honniball or that part of the judgment of Keane J. in Graham which so concludes.
32. However, Hogan J. did directly confront the issue as to whether the appointment was confined to equitable interests in property in Flanagan v. Crosby [2014] 1 IR 576. In that judgment he considered fully the judgments in Graham, Honniball and O’Connell and certain earlier judgments and ultimately, at p. 589 stated:
“[29] If, therefore, the matter were to be viewed afresh, examined from the standpoint of first principles, then tradition apart, there seems no reason, in principle, why an order for the appointment of a receiver by way of equitable execution could not be made in respect of legal as well as equitable interests. Yet, irrespective, however, of how the matter might be approached if the issue were to be considered as if it were res integra, I nevertheless feel that I would not be entitled to depart from the view expressed in contemporary times by both Keane J. in National Irish Bank Ltd. v. Graham [1994] 1 I.R. 215 and by Laffoy J. in Honniball v. Cunningham [2006] IEHC 326, [2010] 2 I.R. 1. To that extent, therefore, I consider myself bound by the majority views, as expressed by members of this court, and it is clear that, absent special circumstances, I must follow this line of authority: see, e.g., by analogy the comments of Clarke J. in Kadri v. Governor of Cloverhill Prison [2012] IESC 27, [2012] 2 ILRM 392 and my own decision in A.G. v. Residential Institutions Redress Board [2012] IEHC 492 , (Unreported, High Court, Hogan J., 6th November, 2012).
[30] The decisions in National Irish Bank Ltd. v. Graham [1994] 1 I.R. 215 and Honniball v. Cunningham [2006] IEHC 326 , [2010] 2 I.R. 1 clearly hold that the appointment of a receiver by way of equitable execution is confined to the enforcement of equitable rights only. Here, the entitlement of the judgment debtor to receive payment from Roscommon County Council is by way of emoluments for his position as a councillor. These rights are not equitable in nature, since Mr. Crosby has a statutory right (i.e., a right existing at law) to such payments. For this reason alone, I would hold that the judgment creditor is not entitled to an order in aid of execution.”
33. Having considered carefully both the English authorities to which we were referred, which are persuasive, and the High Court judgments in Graham and Honniball with the respect that they deserve, I have concluded that the courts when exercising the statutory jurisdiction conferred by s. 28(8) of the Act of 1877, in accordance with the Rules of Court, in the Twenty First Century are not precluded from appointing a receiver by way of equitable execution where what is ought to be executed against is a legal interest in property of a judgment debtor. My reasons are principally the following.
34. First, I am doubtful that there was ever binding authority to the effect that a receiver by way of equitable execution could only be appointed in respect of equitable interests. In Graham, reliance is placed on the statement to that effect by Lindley L.J. in Holmes v. Millage. That judgment in the context of this issue was analysed carefully by Millett J. in MacLaine Watson & Co. v. ITC [1988] Ch. 1 where the very same passage from Lindley L.J. in Holmes v. Millage referred to in Graham was relied upon in argument by Counsel (Mr Alexander), and in respect of which Millett J. stated at p. 19:
“In Holmes v. Millage [1893] 1 QB 551 the plaintiff sought the appointment of a receiver over the future salary of the judgment debtor. The application was refused, not on the ground that the judgment debtor was entitled to his salary at law, but because a man's future salary is not attachable at law or in equity. The ratio of the case is to be found at p. 555:
“the existence of a legal right is essential to the exercise of this jurisdiction. The judgment creditor here has a legal right to be paid his debt, but not out of the future earnings of his debtor; and the Court of Chancery had no jurisdiction to prevent him from earning his living or from receiving his earnings, unless he had himself assigned or charged them.”
and at p. 557:
“In [Manchester and Liverpool District Banking Co. v. Parkinson (1888) 22 QBD 173] an order for a receiver was discharged, because there was no difficulty in enforcing payment of a judgment by the ordinary legal methods. In this case there is such a difficulty; but it does not arise from any impediment which the old Court of Chancery had jurisdiction to remove. The difficulty arises from the fact that future earnings are not by law attachable by any process of execution direct or indirect.”
In my judgment, the passage on which Mr. Alexander relied forms no part of the ratio of the case, and as a historical exposition is too narrowly stated. As Davey L.J. pointed out in Harris v. Beauchamp Brothers [1894] 1 QB 801 , 808, the most common case for the appointment of a receiver by way of equitable execution before the Judicature Acts was that described by Jessel M.R. in Anglo Italian Bank v. Davies (1878) 9 Ch.D. 275, but it was not the only case.”
35. I respectfully agree with the conclusion of Millett J. that the passage from Lindley L.J. in Holmes v. Millage, cited in Graham and relied upon in argument before him, did not form part of the ratio in Holmes v. Millage, and even as a “historical exposition” is too narrowly stated. Rather, the essence of the principle applied by the courts following the passing of the Act of 1877 (and its English equivalent) is as stated by Fry L.J. in Re Shephard and also cited by Keane J. in Graham and set out above. In the same judgment Cotton L.J. at p. 135 put it thus:
“But what he gets by the appointment of a receiver is not execution, but equitable relief, which is granted on the ground that there is no remedy by execution at law; it is a taking out of the way a hindrance which prevents execution at common law.”
36. Whilst I acknowledge, as did Millett J., that it appears to have been assumed in a number of cases that it was only where the debtor had an equitable interest, as distinct from an a legal interest in property, that such property could not be reached by execution at law. It appears to have been assumed that there was no hindrance to execution at law against legal interests in property. Notwithstanding, the relevant interest being equitable rather than legal does not appear to me to have been part of the core principle for the appointment of a receiver which was pithily stated by Buckley L.J. in Edwards & Co. v. Pickard [1909] 2 KB 903 at p. 910:
“Equitable execution is relief given on the ground that there is no remedy by execution at law: it operates by removing a hindrance which prevents execution at law.”
37. Secondly, even if I am not correct in the above analysis, nevertheless I am in agreement that having regard to the breadth of the jurisdiction given the Court by s. 28(8) of the Act of 1877 in relation to the appointment of a receiver, there is, as stated by Hogan J. in Flanagan, no reason in principle why an order for the appointment of a receiver by way of equitable execution should not now be made in respect of legal as well as equitable interests in property. The core principles remain that it is not execution as such, but rather appointment of a receiver in aid of execution where owing to the nature of the property or other hindrance execution against the property is not available at law by one of the existing methods of execution, such as the execution of the writ of fieri facias (as was available in Graham) or by an order of garnishee.
Basic Payment Scheme and Future Payments
38. It is common case that the appellant’s entitlement to payments under the BPS is a legal entitlement in the sense of a legal chose in action. The entitlement arises in a broad sense pursuant to a statutory or regulatory provision, albeit of EU origin. Nothing turns on the precise source. Counsel for the appellant made two distinct further submissions as to why, even if a receiver could be appointed to a legal interest in property, a receiver ought not to have been appointed to receive the future payments to which the appellant may become entitled under the BPS. First, it was contended that a receiver may not be appointed to receive future debts, and second, that even if a receiver might be so appointed, he ought not to have been appointed to receive payments to be made to the appellant under the BPS as the latter are in the nature of salaries, wages or earnings in respect of which the courts will not as a matter of policy appoint a receiver.
39. Prior to considering those issues (in reverse order) it is necessary to identify the nature of the appellant’s entitlement under the BPS.
40. The evidence before the Court in relation to the BPS is the Helpsheet /Terms & Conditions for the 2015 Scheme, published by the Department of Agriculture, Food and the Marine, and exhibited by Mr. Walsh, the deponent of ACC Bank plc. The appellant, in his replying affidavit, did not dispute that those documents set out the terms of the scheme but as already set out stated they are “payments from the European Commission for the support of farm incomes and production throughout the European Union. As such they are in the nature of, or akin to, emoluments or earnings and ought not to be the subject of an Order appointing a Receiver by way of Equitable Execution.” Certain of those statements are matters of submission rather than fact.
41. The essence of the Scheme is set out at para. 1.5 of the Helpsheet:
“In summary, payment under the BPS is available to applicants who meet the active farmer requirements on payment entitlements they hold, which are activated by declaring an eligible hectare on which they are carrying out an agricultural activity.”
42. There are two essential requirements: (i) to be an active farmer, and; (ii) to declare an eligible hectare.
43. The conditions according to which a person will be considered to be an active farmer are set out in para. 1.8 (i):
There are certain exclusions set out in a negative list which are not of relevance.
44. The requirements for an eligible hectare or eligible land are set out in para. 1.7 which stipulates that there will be one BPS entitlement activated for payment purposes for each eligible hectare of land declared. It then states:
45. The conditions include that the land must be used and managed by the applicant, and if they are not the owner of the land, they must have a lease or rental agreement with the owner. There must also be evidence of “a sufficient agricultural activity being conducted throughout the parcel”, otherwise the unused part(s) of the parcel may be found to be ineligible. There are a number of other conditions which must be met in relation to the land, concerning to its suitability for farming, access etc. for animals, fencing and the like.
46. From the above it appears to me that the appellant’s entitlement to receive a payment under the BPS is a personal entitlement as an active farmer. However, the entitlement is by reference to the number of eligible hectares, as defined, of which he is the owner or occupier under a lease or tenancy which are being used and managed by him as an active farmer. Further, when one considers the criteria according to which one is considered to be an “active farmer” and what may constitute use of land for an agricultural activity it appears to me that the primary focus is on the land and within a very broad spectrum the agricultural use to which it is being put.
47. Whilst I accept the averment of the appellant that it is intended to support farm income throughout the European Union, nevertheless it does not appear to me on the facts of this appeal to be such that it should be treated as similar to future earnings such that if otherwise permissible, the appointment of a receiver by way of equitable execution should, as a matter of policy be refused. It does not appear to me that such payments should be equated with salaries or wages in respect of which, if a receiver is appointed, the farmer would be prevented from earning his living from work he has done, as was the position in Holmes v Millage. The BPS payment is an income supplement the amount of which is determined by the number of eligible hectares declared.
48. Further there is no averment from the appellant that this is his sole or only income or that if deprived he would not earn a living from his farming activities. Whilst I have determined that it is a new scheme, it is a replacement scheme to the Single Payment Scheme under which payments of €525,877.40 due to the appellant had been paid to the receiver between 2011 and 2015.
49. Accordingly it appears to me that the High Court judge was correct in not refusing to appoint a receiver in respect of such payments as are due to the appellant under the BPS upon the basis that such payments were in the nature of a salary or wages.
50. The final issue therefore is whether a receiver may be appointed to receive a future debt or sums which may become due to the appellant pursuant to his existing legal right in the sense of a legal chose in action to receive payments under the BPS. The general question as to whether a receiver by way of equitable execution may be appointed to receive a future debt has again been the subject of some detailed analysis by the English courts in a number of decisions to which this Court was referred. It was also the subject of consideration by Peart J. in his High Court judgment in O’Connell where he considered many of the same judgments.
51. The judgment of Lawrence Collins L.J. in the English Court of Appeal in Masri v. Consolidated Contractors International (UK) Limited & Ors. (No. 2) [2008] EWCA Civ 303, [2009] QB 450 with whom the other members of the Court, Lord Neuberger of Abbotsbury and Ward L.J., agreed is of particular assistance on this issue. As stated by Lord Neuberger, it is a “full and impressive analysis of the law” with which, along with the conclusions of Lawrence Collins L.J., he agreed. Following his analysis of the prior cases Lawrence Collins L.J. stated his conclusions at p. 496:
“172 Consequently, in my judgment the position on the older authorities is, as I have suggested, that in none of them is the ratio that a receiver cannot be appointed in respect of future debts or future income. There are strong statements in Webb v Stenton (1883) 11 QBD 518 that future income from a trust could be the subject of an order. I accept that the remarks are obiter, but it would be surprising if these judges could express themselves so clearly in this sense in 1883 if there had been an established practice in Chancery prior to 1873 that a receiver by way of equitable execution could not be appointed in respect of future income. If there had been such a rule Holmes v Millage [1893] 1 QB 551 could have been decided very simply on that ground. There would have been no need for the extensive reasoning devoted to the special position of a man’s salary. Lindley LJ identified the question of general importance as being whether a judgment creditor was entitled to a receiver of future earnings. He said that the common law writs of execution did not extend to future income; that charging orders did not apply to wages or other remuneration for personal services; and that the Court of Chancery did not have the power to restrain a man from earning his living or receiving his earnings. Apart from the passage in Lindley LJ’s judgment referred to above, at para 154, there is nothing to support such a rule. I agree with Millett J’s conclusion in Maclaine Watson & Co Ltd v International Tin Council [1988] Ch 1, 19 that the ratio of Holmes v Millage was that a man’s salary was not attachable at law or in equity, and that the passage from Lindley LJ’s judgment was not part of the ratio.
173 To the extent that these cases support a principle that equitable execution is only available in relation to assets which are liable to legal execution, they are undermined by the second group of authorities, including Bourne v Colodense Ltd [1985] ICR 291, which is binding on this court, and which establish that a receiver may be appointed in respect of a claim to an indemnity and that consequently the jurisdiction is not limited to choses in action which are available for legal execution.
174 In my judgment, therefore, there is no authority binding this court to hold that the jurisdiction is not available in relation to future income from a defined asset. In any event, even if the jurisdiction had not been exercised before 1873, I do not think that this court is bound by pre-1873 practice to abstain from incremental change.”
52. He then considered the powers conferred on the English courts by the modern restatement of s. 25(7) of the Act of 1873 in s. 37(1) of the Supreme Act (now Senior Courts Act) 1981 as circumscribed by judicial authority, and ultimately concluded at para. 184:
“184 In my judgment there is no reason why in 2008 the court should not exercise a power to appoint a receiver by way of equitable execution over future receipts from a defined asset. There is no longer a rule, if there ever was one, that an order can only be made in relation to property which is presently amenable to legal execution. There is no firm foundation in authority for a rule that the remedy is not available in relation to future debts. There is no principle which prevents the development of existing authority to extend the remedy to the property which was the subject of the receivership order in this case.”
53. That authority is persuasive for our courts. I respectfully agree both with the analysis and conclusion, and similarly am of the view that in 2015 or 2017 there is no reason why the Court should not exercise a power to appoint a receiver by way of equitable execution over future receipts from a defined asset.
54. In Masri the defined asset was an oil concession in Yemen to which the judgment debtor was entitled pursuant to specified contracts. In this instance the defined asset of the judgment debtor, the appellant, is an entitlement to receive payments under the BPS which it is agreed is a legal chose in action. The entitlement to receive BPS payments is of course not absolute. It is dependent upon the judgment debtor making an application and complying with the conditions and criteria set out in the scheme. However, the conditional nature of the right to the payment pursuant to the existing legal chose in action does not, in my view, affect the point of principle that a court is entitled to appoint a receiver to receive all amounts which become due pursuant to the existing asset or legal chose in action of the judgment debtor.
55. By reason of this conclusion, which determines this appeal, it is unnecessary to consider certain broader issues in relation to the appointment of a receiver by way of equitable execution to receive other types of future debts or payments. I wish to emphasise that this decision is confined to the appointment of a receiver by way of equitable execution to receive receipts from an existing asset or property right of the judgment debtor which is of a type over which a receiver may be appointed. In particular, I do not intend this judgment to be taken as approval of the decision reached in O’Connell that a receiver may be appointed to receive sums payable to a judgment debtor in settlement of or pursuant to an award of damages in a personal injuries claim for damages. Such an appointment appears to me to raise a number of difficult questions which do not appear to have been raised or argued before the trial judge in O’Connell. These would include the non-assignability of a bare cause of action, and public policy considerations concerning a claim for general damages for pain and suffering in the context of the rights guaranteed by Article 40.3 of the Constitution.
Conclusion
56. The High Court had jurisdiction to appoint the receiver over payments to which the appellant may become entitled pursuant to the Basic Payment Scheme and the order made was an appropriate exercise of discretion on the facts herein. Accordingly, I would dismiss the appeal.
JUDGMENT of Mr. Justice Hedigan delivered on the 31st day of July 2017
Background
1. This is the first defendant’s appeal against the judgment and order of McGovern J. of the 13th July, 2015. This order provided for a variation of the order of the High Court made by Kelly J. on the 4th October, 2011, appointing Judith Riordan as receiver by way of equitable execution (“a receiver”) over the payments to be made by the Department of Agriculture, Fisheries and Food (“the department”) in respect of the appellant herein under the single farm payment scheme (“SFPS”). It was varied so as to provide that the same receiver be appointed over such payments as may be received in respect of the basic payment scheme (“BPS”). This second scheme was introduced to replace the first.
2. In the original proceedings grounding these orders, the respondent issued a summary summons on the 1st December, 2011. Judgment was granted in the Commercial Court on the 25th February, 2011, against the appellant and the second defendant in the sum of €1,064,747.66. An ex parte application was brought on the 4th October, 2011, to have the above receiver appointed by way of equitable execution. This was granted. It was an absolute order with the appellant given liberty to apply, on 48 hours notice to the respondent and the Court, to have it varied. He did not do so. The respondent issued the motion to vary this order, in the terms outlined above, on the 12th June, 2015.
3. The payment scheme operates so that the appellant is entitled to apply each year. The application is then considered and decided upon by the department. The application will only be granted if certain qualifying criteria are met.
Appellant’s submissions
4. Mr. McNally B.L., on behalf of the appellant, submitted that the application was in reality for more than just a variation of the original order because there was a fundamental change in the nature of the payment. The amendment sought, required a new application. Counsel made two main points.
5. He submitted firstly that the decision of Peart J., relied upon by the trial judge, in O’Connell v. An Bord Pleanala [2007] IEHC 79 was wrongly decided and this Court should follow the authorities followed by Hogan J. in Flanagan v. Crosby [2014] 1 IR 576, namely; National Irish Bank Ltd. v. Graham [1994] 1 I.R. 215 and Honniball v. Cunningham [2006] IEHC 326, [2010] 2 I.R. 1. It was submitted that these cases were not argued in O’Connell and that the correct approach is that receivers appointed by way of equitable execution can only be appointed over equitable interests and not legal interests. He submitted also that the appellant’s entitlement to a payment only arises when the department assesses the annual application and decides that he qualifies for the payment. Until such a decision was made, there was nothing to be attached.
6. Second, it was submitted that even if the judgment in O’Connell is correct, there were two issues in that case which make appointment inappropriate. First, all other remedies must be exhausted. In this regard, it is submitted that there was no attempt to use the Enforcement of Court Orders Acts to satisfy the debt. Second, it was held that receivers cannot be appointed over salaries, earnings or wages necessary to live. The appellant submitted that payments under the BPS amounted to supplementary income.
Respondent’s submissions
7. Mr. Fitzpatrick S.C., on behalf of the respondent, submitted that the payments were not legally due and accruing and as such were beyond the reach of the normal legal process. The entitlement to claim was a chose in action (Waldron v. Herring [2013] 3 IR 323) which has always been amenable to the appointment of a receiver by way of equitable execution. The right to appoint a receiver by way of equitable execution in the circumstances of the instant case existed before the decision in O’Connell.
8. It was submitted that the decision in Graham was based on remarks in Holmes v. Millage [1893] 1 QB 551 which it was argued were obiter. Further it was submitted that other cases from England and Wales such as Maclaine Watson & Co Ltd. v. International Tin Council [1987] 3 W.L.R. 508 were not opened in Graham. Holmes can be distinguished and it has been held that it is not a requirement that the property be in the form of an equitable interest. It was submitted that Holmes was the only case which held that this was a prerequisite. There were many cases from England and Wales prior to Soinco SACI v. Novokuznetsk Aluminium Plant [1998] 1 Q.B. 406 where receivers were appointed by way of equitable execution over legal and future interests. It was submitted that irrespective of the stream of authority chosen the right to appoint exists as it was there before and after Soinco. It was submitted that the respondent was in the same position as the judgment creditor in Bourne v. Colodense [1985] I.C.R. 291 and Maclaine. The right here is attached to the appellant and not the farm. It is unnecessary to make a choice between the Graham, Honniball, and Flanagan decisions and O’Connell.
9. Mr. Fitzpatrick urged this Court to accept the reasoning in O’Connell. He argued that the reasons offered in the other line of cases were based on a reliance on Holmes as cited in Graham in which Maclaine was not opened. It was submitted that Flanagan was not authority for the proposition that O’Connell was wrongly decided. Further if a choice is necessary O’Connell should be preferred for both policy reasons and because English decisions have shown that the divergence between legal and equitable interest in relation to the entitlement to appoint a receiver by way of equitable execution does not exist.
10. The hindrance to execution in this case was that there is not an entitlement to a particular sum at a particular time. The asset is the right to apply for payments under the scheme. This amounts to a chose in action, and is not something over which an order of garnishee can be made. Counsel further submitted that this case is not affected by the decision of Hanna J. in Ballinrobe Credit Union v. O’Neill [2016] IEHC 230 because the evidence in that case was more limited and was to the effect that the entitlement to the payment arose before the application was made once there was compliance with the criteria.
11. It was also submitted that this Court can consider the jurisdiction expressed in O’Connell and it can expand it or accept the expansion in the way in which it was done in Soinco. Further there are strong policy reasons for doing so as were set out in Flanagan. The court in modern times should accept the development of the jurisdiction of equity.
12. In relation to the appellant’s argument that not all remedies had been exhausted the respondent submitted that no authority was opened to support the proposition that the respondent should first have sought an instalment order. The respondent explained that it had taken what was thought to be the better course as the alternative would involve taking the farm.
13. It was further noted that there had been no application to set aside the original order for hardship nor was it submitted that there was no intention to apply for the payment. The respondent also referred to averments in its affidavits that noted the appellant’s income and submitted that the payments under the scheme are subsidies. The attachment in this case is not to payments made from an employer for work done by an employee. The payments are not income.
Decision
14. The defendants are tillage farmers in County Meath. They have been for some years in receipt of substantial sums of money through the SFPS. The payments do not constitute their only income. The evidence is that the farm business in fact was generating in excess of €750,000 per annum at the time of the original appointment of the receiver. The plaintiff at that time had obtained on consent a judgment in the amount of €1,064,747.66. This judgment was wholly undischarged. Whilst the respondent did have the benefit of security over the defendant’s farmlands, their value however would not be such as would cover the debt in existence. Upon a sale, a considerable shortfall would remain. A statement of affairs was requested on 30th March, 2011, but was not forthcoming. In these circumstances, an application was made to the High Court for the appointment of a receiver over sums that would become payable on application and approval under the SFPS. The application was made ex parte to Kelly J. in the Commercial Court. He made the order sought on the 4th October, 2011, giving liberty to apply to the defendants to vary or discharge the order. They did not do so nor was this order appealed. In the ensuing three and a half years, €525,877.40 was received on foot of this order. This reduced the debt due as of the 10th April, 2015, to €820,686.44.
15. On the 25th March, 2015, the respondent was informed by the department that the SFPS was being replaced with the BPS. The department informed the respondent that an application would have to be made to bring payments under the new scheme within the ambit of the receiver’s appointment. The respondent was of the view that the underlying facts were unchanged. All that had changed was the identification of the payments that were to be received. They were to come from the same source and the appellant’s entitlement thereto was largely upon the same basis. No significant legal difference appeared. The application was brought by notice of motion and heard by McGovern J. on the 13th July, 2015.
16. In the approved note of his judgment, McGovern J. decided as follows:
(i) The SFPS had been replaced by the BPS.
(ii) The original judgment in favour of the plaintiff had been obtained on consent.
(iii) Other than the fact that the defendant did not contest the original appointment of a receiver by way of equitable execution, the facts were unchanged.
(iv) Under the previous order about €500,000 had been paid off the debt.
(v) The defendant appears to have lands which might or might not be sufficient to discharge the debt.
(vi) The defendant remains a judgment debtor.
(vii) The only change is in the nomenclature of the scheme.
(viii) The reasons for the original order of Kelly J. appointing a receiver by way of equitable execution have not changed. The circumstances justified making the order.
(ix) He nonetheless did hear argument by the appellant against the appointment of a receiver. He rejected them. He found that a divergence of opinion on receivers by way of equitable execution did exist but he accepted and followed the reasoning of Peart J. in O’Connell.
(x) All reasonable steps had been taken except the step of a well charging order.
(xi) McGovern J. varied the order of Kelly J. of the 4th October, 2011, so as to provide that the receiver be appointed over such payments as may be received in respect of the BPS and made no order for costs.
17. The defendant has appealed that decision to this Court. In his notice of appeal the appellant sets out his grounds of appeal. They may be summarised as follows:
(i) The judge erred in his decision.
(ii) The appellant was denied natural justice because his affidavit filed on the 28th July, 2015, was ignored by the judge.
(iii) The application brought by the plaintiff requires more than a mere variation of an existing order. It requires a new order.
(iv) The appellant seeks that the order made be set aside.
18. The respondent in its notice opposes the whole appeal. It claims firstly that the appellant has not particularised the grounds of appeal. Without prejudice to that, the respondent pleads as follows:
(i) The affidavit of the 28th July, 2015, was sworn after the decision challenged herein was given.
(ii) The affidavit of the 2nd July, 2015, sworn by the appellant was opened and considered by the judge.
(iii) The judge did not accept that a new order was necessary following consideration of the basis of that contention as set out in the appellant’s affidavit.
(iv) Without prejudice to this, the respondent pleads that it would have been appropriate to make a new order for the same reasons as grounded the order made by Kelly J. because there was still €820,686.14 owing on foot of the original judgment. As was the case previously, it was just and convenient to make such an order. The payments to be received under the BPS were beyond the ordinary legal enforcement processes.
19. Was it indeed just a case of nomenclature as the learned trial judge found or was there really a need for a new order as opposed to a variation of the old order. The nature of the two schemes is described in the Help Sheet/Terms and Conditions issued by the Department of Agriculture, Food and the Marine and exhibited at DW5 of the affidavit of Damien Walsh sworn herein on the 5th June, 2015, see in particular p. 6 thereof. It may be summarised as follows: the previous scheme of one single payment is now replaced by a scheme of four payments. The new scheme was designed to be more focused on specific Common Agriculture Policy (CAP) goals such as environmental protection, development of young farmers and of desirable crops. It was intended that all recipients will receive the same amount in payments as they previously did under the SFPS.
20. There is no evidence that the appellant will not succeed in his continuing applications for the BPS. This clearly constitutes a most valuable right in the hands of the appellant. Under the Scheme no payment will be made unless the applicant farmer makes the appropriate application within time and meets the criteria specified. When he does all payments will be made through the department. There does seem to be a strong case for the argument adopted by the learned trial judge that what was being sought in 2015 was no more than a variation of the order of 2011. However, he did go on to hear argument concerning the general power to appoint a receiver by way of equitable execution over payments such as those provided in the BPS. That indeed seems the only substantive issue in this appeal.
The power to appoint a receiver
21. The power to appoint a receiver derives from s. 28(8) of the Supreme Court of Judicature (Ireland) Act, 1877 which provides as follows:-
“28(8) A mandamus or an injunction may be granted or a receiver appointed by an interlocutory order of the Court in all cases in which it shall appear to the Court to be just or convenient that such order should be made and any such order may be made either unconditionally or upon such terms and conditions as the Court shall think just…”
22. The Rules of the Superior Courts, 1986 make provision for the appointment of a receiver as follows:-
“Order 50, rule 6
(i) The Court may grant a mandamus or an injunction or appoint a receiver, by an interlocutory order in all cases in which it appears to the Court to be just or convenient to do so.
(ii) Any such order may be made either unconditionally or upon such terms and conditions as the Court thinks just.”
23. Order 45, rule 9 provides:-
“In every case in which an application is made for the appointment of a receiver by way of equitable execution, the Court in determining whether it is just or convenient that such appointment should be made shall have regard to the amount of the debt claimed by the applicant, to the amount which may probably be obtained by the receiver, and to the probable costs of his appointment, and may, if it shall so think fit, direct any inquiries on these or other matters, before making the appointment. The order shall be made upon such terms as the Court may direct.”
24. A very helpful analysis of the jurisdiction to appoint a receiver by way of equitable execution is to be found in the judgment of Millet J. in Maclaine Watson and Company v. International Tin Council at pages17 to 20. Certain relevant principles may be deduced therefrom:
(i) The court’s jurisdiction to appoint a receiver by way of equitable execution arises “in all cases in which it appears to the court to be just and convenient to do so”.
(ii) The statutory provisions did not, according to Millet J., confer a power to appoint such a receiver in a case where prior to the Judicature Acts no court could have. This statement does not now appear to represent the law in England and Wales, see Colman J. in Soinco SACI v. Novokuznetzk Aluminium Plant [1988] 1 QB 406.
(iii) The appointment of a receiver by way of equitable execution is a form of equitable relief to enforce a judgment debt granted in the special circumstances of a particular case if the usual process of execution or attachment is not available. The remedy is discretionary.
(iv) It is required that there should exist some hindrance arising from the nature of the property preventing the judgment creditor from obtaining execution at law but which the appointment of a receiver can overcome.
(v) It is not execution that is granted but equitable relief on the ground that there is no remedy by execution at law. The appointment of a receiver takes away a hindrance preventing execution at common law.
(vi) The hindrance should arise from the nature of the property.
(vii) An applicant for such an order should be required to show that circumstances are such that it would be practically very difficult if not impossible to obtain the fruit of his judgment unless equitable execution is granted. Millet J. considered this as a somewhat liberal formulation but was not troubled by it since he was dealing with a case of impossibility.
(viii) There could not be a receiver appointed over a man’s future salary. This was not available either at law or in equity. The Court of Chancery had no jurisdiction to prevent a man from receiving his earnings unless he himself had assigned or charged them. Future earnings are not by law attachable by any process of execution direct or indirect.
(ix) The test established by Chitty J. was that there should be no way at getting at the fund except by the appointment of a receiver.
(x) The existence of a legal interest is not a bar to the appointment of a receiver. Millet J. observed that no cases were cited to him that said that this was so and that in fact two cases were cited where there was such an interest.
25. It was and it remains the respondent’s case that payments to be made under both schemes are not payments which were legally due and accruing. Thus, they were beyond the reach of the normal legal process. This it argues was the basis of the decision by Kelly J. of the 4th October, 2011, i.e. the payments were such as might at some point in the future become legally due. He followed O’Connell in which Peart J. applied in Ireland the English decision in Soinco. In O’Connell, the respondent An Bord Pleanála sought assistance to execute an order for costs against O’Connell by the appointment of a receiver by way of equitable execution over “so much of any monies which the applicant might in the future recover by way of damages in an action” commenced in the High Court in a personal injuries action. Those proceedings had only been commenced and it was unclear what if any damages might be awarded. Dealing with the objection that a receiver should not be appointed over monies payable in the future, Peart J. noted and accepted the reasoning of Colman J. in Soinco where he dealt with the appointment of a receiver over monies not due or accruing at the date of the application. Colman J. noted by way of comparison developments in the law involving the preservation of assets by way of the Mareva injunction. The principles developed in that area of the law had developed over time so that such orders could now be granted over not just assets existing at the time of making the order but also over assets coming into existence after the making of the order. Colman J.’s reasoning was as follows at page 422:-
“If pre-trial Mareva injunctions can apply, as, in my judgment, they do, to assets brought into the jurisdiction subsequently to the making of the order, there can be no reason, in principle, why post-judgment conservatory injunctions should not also be capable of applying to after-acquired assets, provided that they are within the overall monetary ceiling incorporated in the order. If that is correct, and there is a jurisdiction to preserve for execution by injunction assets acquired and yet to be acquired after judgment, there would seem equally to be no reason in principle why a receiver should not also be appointed to preserve such assets. And if a receiver may be appointed to preserve such assets, why not to effect attachment of those assets for the benefit of the judgment creditor, provided that the court is satisfied that the debtor can be adequately protected against double jeopardy? In these circumstances I can see no reason whatever why, 124 years after the Judicature Acts, the court should deny to itself a jurisdiction which is self-evidently likely to be extremely useful as an ancillary form of execution. I would therefore hold that there is jurisdiction to appoint a receiver by way of equitable execution to receive future debts as well as debts due or accruing due at the date of the order.”
26. Peart J. noted that in Courtney, Mareva Injunctions and Related Interlocutory Orders, 1st Ed., (Ireland, 1998) the author described favourably the reasoning of Colman J. in Soinco. The learned author noted at page 431:-
“It is thought that the foregoing reasoning is both convincing and attractive and may be persuasive to an Irish Court.”
27. Adopting the above approach, Peart J. decided it was appropriate to appoint a receiver by way of equitable execution over any possible damages that might be awarded to Ms. O’Connell in her personal injury action. He held:
“I am satisfied that the ordinary processes of execution normally available to a judgment creditor are not in the circumstances of the present case sufficient to enable the second named Notice Party enforce payment of its judgment against the applicant. I am satisfied that the reasoning of Colman J. in Soinco is equally persuasive in this jurisdiction, and I see no reason why this Court should conclude that the law here should be different. The appointment of a receiver by way of equitable execution is a remedy by which equity assists a judgment creditor to secure enforcement of a judgment against the judgment debtor. To appoint such a receiver over such sum as may be recovered by the applicant in her claim for damages, and limited of course to the amount of the judgment debt, including interest, does not do any injustice to the judgment debtor, especially in circumstances where judgment has already been obtained. It is not therefore unjust. I am satisfied that it is convenient to do so, given the inability of the ordinary methods of execution to effect a discharge of the amount due, and given the fact, which I accept, that the second named Notice Party can have no control over the applicant's proceedings for damages and no reasonable way of ensuring that it is aware of what is happening in relation to those proceedings even if they are not settled prior to any hearing. The second named Notice Party would never be aware if the case was settled prior to trial, and in a position to make any timely application for an order of garnishee over any settlement monies. Neither would it be aware of the date of any trial so as to hold a watching brief and make an appropriate application at the conclusion of the trial. It is therefore convenient that an order should be made.”
28. It must be noted that the nature of the future payments involved in O’Connell is markedly different to that herein. The criticism of this judgment in Keane, Equity and the Law of Trusts in the Republic of Ireland, 2nd Ed., (Dublin, 2011) is based upon the nature of the property in question. The learned author states that in fact there is no property at all to which the judgment debtor was entitled either immediately or in the future. There was at least the possibility that Ms. O’Connell would not in fact succeed in her personal injury action. There was therefore something inherently speculative about the whole application. Here however, the appellant has repeatedly applied for and received substantial subsidies under the SFPS. There is no evidence of any likely difficulty in making future applications under the BPS. The scheme itself, as summarised at para. 19 above, clearly indicates that it is intended that any farmers that have benefitted before from the SFPS would benefit to the same extent from the BPS. The likelihood of such payment being made is highly probable. Indeed, it is all but certain.
29. However, the appellant has no legal right to payment of specific sums of money under the BPS. Until his application is made and approved, there does not exist a debt claim against the department capable of being the subject of a garnishee order. This was quite properly conceded by Mr. McNally for the appellant. The only right the appellant has is to apply for a payment under the BPS albeit an application all but certain to be granted. It is thus an intangible but very valuable property right which may be described as a chose in action because it can only be enforced, if necessary, through legal action. The need for the appellant to sue for his payment has never arisen but his right to sue for it and succeed, all application conditions having been met, were he not paid it, is very clear. It is an entitlement both to apply for the BPS payments and to pursue a cause of action to obtain the same all conditions having been met and it thus constitutes a chose in action. See Waldron v. Herring [2013] 3 IR 323 (Edwards J.) at paragraph 14. Moreover, the subsidies payable to the appellant under the scheme are undoubtedly “an amount which may probably be obtained by the receiver in accordance with Order 45, rule 9.
30. Mr. McNally, for the appellant, referred the Court to the judgment of the High Court in Flanagan v. Crosby [2014] 1 IR 576. It was submitted that Hogan J. found that O’Connell was wrongly decided and instead followed the previous decisions of National Irish Bank Ltd. v. Graham [1994] 1 I.R. 215 and Honniball v. Cunningham [2006] IEHC 326, [2010] 2 I.R. 1. Both these latter cases held that the appointment of a receiver by way of equitable execution is confined to the enforcement of equitable rights only. In Honniball, Laffoy J. relying on the decision in Graham, observed at para. 30 as follows:-
“The principle, as I understand it, is that the court will not appoint a receiver by way of equitable execution over property of which the judgment debtor is the legal owner and which can be the subject of legal process…The principle is that the equitable remedy is only available where the judgment debtor has only an equitable interest in property against which the judgment creditor seeks recourse.”
31. In the first place, it seems clear that the appellant does not argue herein that they have any legal right to the BPS payments. That is why Mr. McNally conceded that the respondent could not obtain a garnishee order on the payments. In fact, the appellant argued that he did not even have an equitable interest at the time of the appointment of the receiver.
32. However, it seems to me that none of these cases are apposite since they did not involve attempts to attach property to which the judgment debtor had only an equitable interest. In his judgment, in Flanagan, Hogan J. was addressing the question he set out at paragraph 1:-
“Can a receiver be appointed by way of equitable execution in respect of the future salary or other emoluments of an employee to which he is, in law, entitled? Or is the power to appoint a receiver by way of equitable execution confined to equitable interests in property only?”
33. The principle set out by Laffoy J. noted above in fact supports the proposition that the equitable remedy is available where the judgment debtor has an equitable interest only. Hogan J. concluded at paragraph 30:-
“The decisions in National Irish Bank Ltd. v. Graham [1994] 1 I.R. 215 and Honniball v. Cunningham [2006] IEHC 326, [2010] 2 1.R. 1, clearly hold that the appointment of a receiver by way of equitable execution is confined to the enforcement of equitable rights only.”
34. Thus, the rationale for his judgment was that the previous High Court judgments in Graham and Honniball which he had expressed himself as bound to follow (see para. 29 of his judgment) had held that a receiver could only be appointed over rights which were equitable in nature. In this case the only interest of the appellant in the BPS is the equitable one of a right to apply and a right to sue if refused. There is much to be said for the wider view expressed by Hogan J. at para. 29 of his judgment where, having reviewed the authorities, he observed:-
“If, therefore, the matter were to be viewed afresh, examined from the standpoint of first principles, then tradition apart, there seems no reason, in principle, why an order for the appointment of a receiver by way of equitable execution could not be made in respect of legal as well as equitable interest. Yet, irrespective, however, of how the matter might be approached if the issue were to be considered as if it were res integra, I nevertheless feel that I would not be entitled to depart from the view expressed in contemporary times by both Keane J. in National Irish Bank Ltd. v. Graham [1994] 1 I.R. 215 and by Laffoy J. in Honniball v. Cunningham [2006] IEHC 326, [2010] 2 I.R. 1. To that extent, therefore, I consider myself bound by the majority views, as expressed by members of this court, and it is clear that, absent special circumstances, I must follow this line of authority.”
As however the question herein involves only equitable interests, this broader approach does not require consideration.
35. The appellant argues also that the monies payable are in the first place equivalent to earnings or wages necessary to live, that they amount to supplementary income and are future income. By their nature it is argued, these are not property over which a receiver may be appointed. The appellant relies upon M’Creery v. Bennett [1904] 2 I.R. 69, Picton v. Cullen [1900] 2 I.R. 612 and Holmes v. Millage [1893] 1 QB 551. In M’Creery v. Bennett, Barton J. relying upon Holmes v. Millage held that there was no jurisdiction to prospectively impound the future earnings of a judgment debtor. He found however that salary which has already become due and pensions for past service might be the subject of equitable assistance to a judgment creditor. The rationale appears to be that stated by counsel for the defendant in Holmes v. Millage at page 552. These were that the court will not make an order that is futile. It cannot compel the defendant to do his work or his employer to employ him. In Picton the Court found it had jurisdiction to appoint a receiver over an instalment of a school teacher’s salary which had actually become due for work already done but also cited Holmes v. Millage as authority for the proposition that a receiver cannot be appointed over the future earnings of anyone. Thus, it seems clear that it is the maxim that equity will not act in vain which is in action on this point. It is further clear from the comments of Lindley L.J. at p. 554 of his judgment that it was the wages of Mr. Millage that he was considering therein:-
“The question raised by the appeal is one of great importance, not only to the parties immediately concerned, but to every wage-earning person in the country. The question involved in the appeal is whether a judgment creditor is entitled to a receiver of the future earnings of his judgment debtor.”
36. None of these decisions support the proposition that the court cannot appoint a receiver over future debts or income. Only wages or salary are excluded on these authorities.
37. From this review of the relevant authorities, it seems to me that the following principles should guide the courts in determining upon the appointment of a receiver by way of equitable execution;
(a) The court has jurisdiction to appoint a receiver to receive future debts as well as debts due or accruing.
(b) A receiver may not be appointed over future wages or salary.
(c) The court must consider whether it is just and convenient to do so. In this respect, the court should have regard to the amount of the debt, the amount that may probably be obtained by the receiver and the costs of the appointment of a receiver.
(d) Are there special circumstances in the particular case that make the usual process of execution or attachment unavailable?
(e) Is there some hindrance arising from the nature of the property which prevents the judgment creditor from obtaining execution at law which the appointment of a receiver can overcome?
(f) There should be no way of getting at the fund other than by the appointment of a receiver.
(g) It is not execution that is granted but equitable relief where there is no remedy by execution at law.
(h) The remedy is discretionary.
38. Applying these principles to this application the following seems clear;
(a) If the appellant applies to the department for payment under the BPS and meets all the conditions then the payments will become due and owing. They may be regarded as future debts.
(b) Payments under the BPS are not future wages or salary. They are subsidies payable by the department to farmers who comply with certain policies approved under the Common Agricultural Policy of the European Union. They may be the subject of the appointment of a receiver.
(c) As to whether it is just or convenient to appoint a receiver, the debt in question although now substantially reduced by virtue of the amounts received to date, remains a very large one. The amounts that may be received for payment down of the debt are likely to be equivalent to sums already paid under the SFPS. They are very substantial. On the evidence, there is no other practicable way in which the debt may be reduced. The costs of appointing a receiver are likely to be very small by comparison with the sums to be received. No real issue has arisen on this point.
(d) The circumstances of this case are that no process of execution over the BPS payments is available to the respondent bank because until they are granted there is no property against which to execute. In the same way, there is no property to attach but there will be in the future. BPS payments are future income.
(e) The hindrance faced by the judgment creditor in this case is that the judgment debtor has no legal interest in the BPS payments until he applies and meets all the conditions required for payment. The equitable relief of a receiver overcomes this hindrance which prevents execution at common law.
(f) It is conceded quite correctly that the respondent cannot obtain an order of garnishee and it cannot execute against property that does not yet exist.
(g) There is therefore no remedy by execution at law and only the appointment of a receiver can provide the equitable relief that can go towards payment down of the substantial debt that is owed.
(h) The arrangement in place since the original order made in 2011 has resulted in a major reduction in the debt due by the appellant to the respondent herein. This is to the benefit of both. No grounds are ascertainable that would suggest that the Court should not exercise its discretion.
39. All the conditions required for the appointment of a receiver by way of equitable execution over the BPS payments that may be made to the appellant are therefore met. The appeal will be dismissed.
