THE SUPREME COURT
[Appeal No. 2017/146]
O'Donnell J.
McKechnie J.
MacMenamin J.
Dunne J.
Charleton J.
ACC LOAN MANAGEMENT LIMITED DAC
PLAINTIFF/RESPONDENT
DEFENDANT/APPELLANT
DEFENDANT
Judgment of Mr. Justice John MacMenamin dated the 9th day of May, 2019
1. The issue before this Court has troubled common law judges in Ireland and elsewhere, for over a century. At one level, the question can be seen as identifying how, in appointing a receiver by way of equitable execution judgment, the courts should strike a fair balance between the rights and interests of judgment creditors and debtors. At a deeper level, the subject requires consideration of whether the enactment of the Judicature Acts in 1873 in England and Wales, and in 1877 in Ireland, extended the powers of the courts, or whether that legislation was purely procedural. This remains an area of some controversy.
2. On the 4th October, 2011, the High Court, (Kelly J.), directed that a receiver by way of equitable execution, (hereinafter "a receiver"), be appointed in respect of such payments which the appellant, Mark Rickard, was due to receive from the Department of Agriculture, Fisheries & Food, ("the Department"), under the E.U. Farm Single Payment Scheme (SPS). This will be referred to as the "2011 Order". Later, on the 13th July, 2015, the High Court, (McGovern J.) varied the 2011 order, with one which provided that, as and from 13th July, 2015 onwards, the receiver would be appointed over such payments as the appellant might henceforth receive from the Department under the E.U. Basic Payment Scheme (BPS), which was the successor of the SPS. This will be referred to as the "2015 order". On the 31st July, 2017 the Court of Appeal dismissed an appeal brought by the appellant against the 2015 judgment and order. The appellant applied for leave to appeal to this Court.
3. This Court determined that issues of general public importance arose as to, first, the extent of the power of a receiver to collect monies over both equitable and legal interests, and, second, whether payments made to farmers under the BPS were in the nature of salary, thereby raising questions as to whether a receiver could be appointed over such payments. ([2018] IESC DET 36)
The Judgments of the Court of Appeal
4. The Court of Appeal delivered two judgments, (Finlay Geoghegan J., Hedigan J.; Irvine J. concurring with both). In his High Court judgment in National Irish Bank Limited v. Graham [1994] 1 I.R. 215, Keane J. held that a receiver could only be appointed in cases where a debtor enjoys an equitable interest in property which cannot be reached by legal process. Having considered legal authorities not cited to the court in Graham , both Court of Appeal judges concluded that, when exercising the statutory jurisdiction conferred by s.28(8) of the Judicature Act, 1877, the courts, acting in accordance with the Rules of Court in the 21st Century, are not precluded from appointing a receiver by way of equitable execution, even where what is sought to be executed against is a legal interest in the property of a judgment debtor. Both judges relied on a number of persuasive English authorities, referred to later in this judgment. The judges also concluded that the law permitted that a receiver be appointed over the sums to which the appellant would have been entitled under the BPS Scheme.
5. Counsel for the appellant now argues that the established position reflected in Graham was that the appointment of receivers was confined only to cases where a judgment debtor held an equitable interest in property which will not be reached by legal process; that the law provided that a receiver could not be appointed over future payments; that the developments in English law took place against the background of the U.K. Supreme Court of Judicature Act, 1925, and later legislation; that the established case law related to more substantial choses in action than the "inchoate" chose in action here; that future payments under the BPS should be excluded as a matter of policy; and that it was necessary that the appellant should have pursued other legal remedies under the Enforcement of Court Orders Act, as a pre-requirement to application to appoint a receiver.
Procedural Background to this Case
Pre-Trial
6. On the 17th December, 2007, the respondent, ("ACC"), advanced monies to the two defendants named in the High Court proceedings. These were Mark Rickard, and his brother, Gerard Rickard. Mark Rickard, the first defendant, is the appellant to this Court. The evidence before the High Court established that the defendants were involved in tillage farming in a very substantial way in County Meath. Neither denied they had borrowed this large sum of money from the ACC, or that repayments had ceased. In correspondence prior to the initiation of summary summons proceedings, the Rickards' solicitors indicated that their clients' agricultural entitlements under the SPS were in the region of €170,000 per annum. At the time the loan was taken out, it was represented to the ACC that the farm business was generating sums in excess of €750,000 per annum by the sale of crops. Correspondence from the appellant's solicitors conveyed pledges of co-operation in repayment of the debt. These were unfulfilled. At no stage did the appellant, or his brother, give any reason for the absence of co-operation, or inform the court that the appointment of a receiver would be excessively onerous upon either of them.
Judgment in 2011
7. The summary summons was issued on the 1st December 2010, and admitted to the Commercial List by order dated the 11th February, 2011. On the 25th February, 2011, the High Court made an order by consent granting judgment to the ACC against each of the defendants in the sum of €1,064,747.66 ("the judgment"). The defendants never denied the money was due. Mr. Mark Rickard, the appellant in this Court, accepts that he and his brother were legally advised at the time they consented to the judgment. Subsequently, the Bank asked the appellant for a statement of affairs. This was not provided. As of October, 2011, the judgment remained entirely undischarged.
8. An application to appoint a receiver in the High Court may be made ex parte , or on notice, (Order 50, Rule 6, Rules of the Superior Courts 1986, as amended). There is authority to the effect that such applications in relation to pension benefits should be made on notice. ( Campbell v. Usher [1913] 47 ILTR 165). So, too, with salaries. ( Clery v. O'Donnel l [1944] 78 ILTR 190). The procedure is slightly different in the Circuit Court. (See, on this, Collins "Enforcement of Judgments", Round Hall, 2014, Chap. 12). There is jurisdiction for an application to set aside such an order. The Court will have regard to the amount of the debt, the probable costs of the appointment, and the probable sum to be obtained.
Appointment of a Receiver in 2011
9. The properties available for execution in this case principally comprised various portions of lands in County Meath which the appellant co-owned with other members of his family. By 2011, the Bank had the benefit of security over properties comprised in Folios MH28333, and MH3354, pursuant to a mortgage/charge dated the 23rd January, 2008. These folios consisted of circa 215 acres of farmland and farm buildings. The Bank's view was that, even following any sale of the assets, there would be a shortfall on the debt due, and on the judgment. It decided to appoint a receiver over the SPS payments.
10. The application to appoint a receiver was moved on an affidavit by Shay Maguire, a manager in ACC. He deposed that, because of the extent of debts due under the judgment, and because of the nature of the assets which were immediately available to discharge or reduce the debt, it was necessary to proceed by way of an appointment of a receiver over payments to be made to the appellant under the SPS. He further deposed that print-outs from one website showed the appellant had received €162,656 under the SPS scheme. The evidence before the High Court was to the effect that the payments due to the appellant under the Scheme did not represent his sole source of income, and that it had been represented to the ACC that the defendants' farm business was expected to generate €750,000 through the sale of wheat, oats, maize, straw and oil seed rape. (O.S.R.). The Bank had been informed that in August, 2010 the defendants had leased a grain store to a local contractor expected to result in a monthly payment of €6,000.
11. The application was made to Kelly J. on the 4th October, 2011. The Court has been informed that counsel for the ACC referred to Soinco SACI v. Novokuznetsk Aluminium Plant [1997] 2 ALL ER 523, and the High Court judgment in O'Connell v. An Bord Pleanala [2007] IEHC 79, (Peart J.). These are referred to later. Kelly J. acceded to the application. The defendants were granted liberty to apply if they wished to vary or discharge the terms of the order. There was no such application. Between the 4th October, 2011, and the 22nd June, 2015, ACC received the sum of €525,877.40 pursuant to the order.
The Application to Vary the 2011 Order in 2015
12. By letter dated 25th March, 2015, the Department pointed out to ACC's solicitors that the SPS had ceased operation on the 31st December, 2014; had been replaced by the BPS; and, as a result, the Department considered it no longer had a sound legal basis to continue to transfer funds owed by the judgment debtor to the ACC. The letter suggested that the ACC's solicitor should check whether consideration should be given to a revised "garnishee order". (sic). ACC brought the motion seeking a variation of the 2011 High Court order on the 4th October, 2015, exactly four years after the receiver was appointed. The grounding affidavit set out that, although €525,877.40 had been received, the sum of €820,686.44 remained outstanding on foot of the 2011 judgment.
13. The appellant's replying affidavit was, in some ways, unusual. It only raised only legal issues. At no stage did the appellant indicate, or even suggest, that the appointment of the receiver had already had a serious effect on his own finances, or those of his family. He said nothing as to any alternative sources of income which he, or members of his household, might have. While contending that the procedure of appointing a receiver was "blunt and draconian", and that, in general, it did not take into account a judgment debtor's circumstances, the appellants' affidavit was otherwise silent as to his own financial circumstances. He did, however, depose that payments previously made to him under the SPS, and now under the BPS, were payments from the European Commission for the support of farm incomes and production throughout the European Union. He contended that these payments were 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.
Judgment by McGovern J. on 13th July, 2015
14. Having heard submissions, McGovern J. delivered an ex tempore judgment on the 13th July, 2015. According to an agreed note, he held that the only factual changes since 2011 were, first, to the nomenclature of the scheme, and, second, to the fact that on this occasion the appellant, through counsel, was resisting the making of the order. He observed the bank had taken all reasonable steps, save the dramatic step of a well charging order. McGovern J. directed that the order made by Kelly J. on the 4th October, 2011 be varied in order to provide that a receiver be appointed over payments received on foot of the BPS Scheme. In reaching his conclusion, McGovern J. referred to what he termed a "divergence" of judicial opinion regarding the circumstances in which a receiver could be appointed.
15. On appeal to the Court of Appeal, counsel for the appellant submitted that McGovern J. had erred in relying upon, and following, the judgment of Peart J. in O'Connell , (cited earlier), and that, instead, he ought to have followed the High Court judgments of Keane J. in National Irish Bank v. Graham [1994] 1 I.R. 215; Laffoy J. in Honniball v. Conningham [2010] 2 I.R. 1, and Hogan J. in Flanagan v. Crosbie [2014] 1 IR 576. The effect of these judgments was that a receiver might only be appointed over equitable interests in property.
16. In fact, the origins of the reasoning in those decisions lies in 19th Century judicial dicta as to the effect of the 1873 and 1877 Acts. It is therefore necessary to consider something of the legal background. Amongst other things, this requires consideration of the jurisdiction and practice of the courts, both prior, and subsequent to, those enactments.
Receivers and the Judicature Acts
17. Historically, the appointment of a receiver enabled a judgment creditor to capture certain equitable interests, for example, an interest under a will. Describing his understanding of the pre-1873 Judicature Act practice, Fry L.J. explained the basis of an application in this way:
"A receiver was appointed by the Court of Chancery in aid of a judgment at law when the plaintiff shewed 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 re Shephard [1889] 43 Ch. D 131, 138).
It is necessary then to ask why, in 1889, Fry L.J. was considering the question as to practice of the Court of Chancery? This was because of his strongly held view that the Judicature Act of 1873 was simply procedural; it had simply restructured the courts, but had not affected the substantive law, or fused law and equity. He considered the power of the courts to appoint receivers remained unaltered by the Acts. The passage cited pinpoints the question as to whether the effect of the Judicature Acts was, indeed, purely procedural or whether it was substantive; specifically, whether the post-Judicature Act courts could appoint receivers only in circumstances permitted by the pre-Judicature Act Courts of Chancery, or whether, rather, these Acts had extended the jurisdiction of the courts?
18. One recent authoritative writer has denounced such distinctions between actions at law and equity as being, nowadays, "anachronisms", going on to point out that, while, technically, a receiver was understood as available only to capture equitable interests in property, even where it was possible that a court would refuse to make such appointment, a plaintiff/creditor might simultaneously seek the alternative relief of a garnishee order, or indeed a post-judgment Mareva injunction. (Courtney, "Mareva Injunctions and Related Interlocutory Orders", Ch. 10, Butterworths, 1998). Courtney went on to point out that for a plaintiff/ judgment creditor, the attraction of a receiver, as opposed to execution through a writ of fi fa , was that the former was, generally perceived as being far more immediate and effective. (Courtney, Op.cit, Ch. 10.79). The requirements for an order continued to be that a plaintiff had obtained a judgment against a defendant, had been unable at law to execute his judgment, and could show that the defendant was entitled to an "equitable interest" in property which could have been seized if he held the legal interest in the property. But, as that learned author points out, the courts have already, in the past, appointed receivers by way of equitable execution, inter alia , over a joint deposit account ( O'Donovan v. Goggin , 30 L.R. Ir. 579); under a will ( Sanford v. King [1900] 26 VLR 387), an equitable interest in property ( Re Pope , 17 Q.B.D. 743), policies of insurance ( Beamish v. Stephenson , 18 L.R. Ir. 319), salaries presently due ( Picton v. Cullen [1900] 2 I.R. 612), and rents and profits derived from property ( Cadogan v. Lyric Theatre , 10 TLR 584).
19. But nevertheless, until the judgment of the Court of Appeal, the law in Ireland was understood to be that as enunciated in National Irish Bank v. Graham . The basis for that judgment is clear; its historical underpinning brilliantly summarised in Keane, Equity and the Law of Trust in the Republic of Ireland, Butterworths, 2nd Edition, 2011, Ch. 2; especially 2.37. Writing extra-judicially, the former Chief Justice draws attention to the fact that, following the judgments of the House of Lords in United Scientific Holdings Ltd. v. Burnley Borough Council [1978] AC 904 H.L., and this Court in Hynes v. Independent Newspapers Ltd. [1980] 1 I.R. 204 appeared to have found that the law and equity were fused. But in his authoritative text, Chief Justice Keane expressed the view that observations of O'Higgins C.J. and Kenny J. to that effect were obiter dicta .
20. In 2009, the Law Reform Commission recommended that the requirement that legal execution be attempted before equitable execution was permitted should be abolished, and proposed that a receiver should be appointed where it was appropriate and proportionate in a given case. The Report cited case law the effect of which was stated to be that a judgment creditor was not always strictly obliged to attempt legal execution, and, in exceptional cases, might obtain an order for equitable execution, where it could be shown that such execution against goods would not be effective. (citing Manchester and Liverpool District Banking Company Limited v. Parkinson [1889] 22 QBD 173; O'Connell v. An Bord Pleanala [2007] IEHC 79; (CLRC CP 56/2009); Law Reform Commission Consultation Paper 56/2009, at para. 6.435; Law Reform Commission Report, Personal Debt, Management and Debt Enforcement, LRC 100/2010).
Jurisdiction
21. Section 28(8) of the Supreme Court of Judicature (Ireland) Act, 1877, 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; …" (Emphasis added)
The terms " just or convenient " above are emphasised as they constitute a starting point for consideration. These apparently simply understood words are, however, of considerable significance. Their construction raises the same question as earlier; that is, whether the Irish Judicature Act, 1877 was intended to vest the courts with wider powers than previously, or whether, rather, the Act was purely procedural? If purely procedural, so the argument went, it was not open to the courts to re-interpret, or incrementally develop, the meaning of the terms " just or convenient ", because those terms could only be understood in the light of their meaning at the time of the enactment. Thus, in a number of judgments, the English Court of Appeal concluded that, despite the fact that, subsequent to the Act of 1873, any court might now grant remedies formerly confined to the Courts of Chancery, in doing so they might only rely on principles established by the Courts of Chancery prior to the enactment of the Judicature Acts. Much later, one eminent English judge, Donaldson M.R., albeit in the context of s.37 of the United Kingdom Supreme Court Act, 1981, put his views in this way: 22. Order 50, Rule 6(1) of the Rules of the Superior Courts 1986, as amended, repeats the phraseology of s.28(8) in almost precisely the same terms. It provides that a court may grant a mandamus or 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.
23. Order 45, Rule 9 of the Rules of the Superior Courts 1986, as amended, outlines the procedure for the appointment of a receiver, providing that, in determining whether it is just or convenient that an appointment should be made, the court should have regard to the amount of the debt claimed by the applicant, the amount which may probably be obtained by the receiver, and the probable costs of his appointment. A court may, if it thinks fit, may also direct any inquiries on these or other matters, before making the appointment. The rule concludes that the "order shall be made upon such terms as the Court may direct". (See Order 45, Rule 9, RSC).
24. In my opinion, it is impossible to ignore the fact that s.28(8) makes a close statutory link between injunctions and receivers. Both were remedies granted by the old Courts of Chancery, although, in the mid-19th Century the Irish Common Law Courts were granted the power to grant injunctions in certain circumstances. (Common Law Procedure Act, 1856, cf. Keane op.cit. Ch. 2). The Mareva jurisdiction, first identified in the United Kingdom in 1975, inter alia , was on the basis of legislation which was, in all material respects, identical to s.28(8) of the 1877 Act. (See s.45(1) U.K. Supreme Court of Judicature (Consolidation) Act, 1925), and see Nippon Yusen Kaisha v Karageorgis [1975] 1 WRL, and Mareva Compania Naviera SA v International Bulk Carriers SA [1980] 1 ALL.ER 213. While s.37(3) of the U.K. Supreme Court Act, 1981 does confer a specific statutory jurisdiction to grant Mareva relief, the fact remains that, in the neighbouring jurisdiction, Denning M.R. felt in a position to grant such injunctions, albeit, at the outset, with suitable safeguards, but having regard to statutory terminology precisely analogous to s.28(8) of the 1877 Act. These developments gained wide acceptance, and are now taken as a day to day occurrence. The question then arose as to whether in Ireland there was jurisdiction to grant a Mareva injunction order under that Irish statute?
25. The question was answered in r e John Horgan Livestock Limited; O'Mahony v. Horgan [1995] 2 IR 411, where this Court approved earlier High Court judgments Flemings v. Ranks (Ireland) Ltd. [1983] ILRM 54; Powerscourt Estates Ltd. v. Gallagher [1984] ILRM 1230. which, in reliance upon s.28(8) of the 1877 Act, had granted Mareva relief. By necessary implication, therefore, this Court considered that the section provided a sufficient basis for exercising that jurisdiction. Inescapably, therefore, the next question is, if this Court was prepared to countenance incremental development of the terms " just or convenient ", in the context of Mareva injunctions, does it not logically equally follow that, by analogy, there may be an incremental development in the law regarding the appointment of receivers? This question arises in a more focused way if, it is characterised as one regarding, first, what was the practice of courts prior to 1877, and, second, what jurisdiction was actually vested in the courts by the 1877 Act? Such matters of interpretation became, and to a degree have remained as, a source of unresolved dissonance in Ireland.
26. Understandably, the protection of judgment debtors from oppressive orders played an important role in the evolution of English law. But, even if the courts do now enjoy a broader jurisdiction to appoint a receiver than hitherto understood, this could never derogate from the fundamental duty of the courts to, in the words of s.28(8), not only do what is " convenient ", but what is " just " in any given case. This can only be achieved by the judgment-debtor placing full information before the court.
27. Mr. Rickard has never furnished a statement of affairs. This is an important feature. He did not give any indication as to his assets, nor has he outlined why, in his particular case, the making of an order would be unjust or inconvenient. His defence has been purely technical. While it is too glib to say that purely technical defences may elicit technical judicial responses, one cannot lose sight of the broader perspective; that is, in the modern era, the courts here and elsewhere have evolved a series of procedures, which subject to suitable safeguards, have been found to be effective to give effect to judgments and orders. It would seem incongruous that this one area of receivers should remain in isolation from these incremental developments, not only the development of Mareva injunctions, but also Anton Piller and Bayer orders. (cf. Anton Piller v. Manufacturing Process Ltd. [1976] Ch 55; Bayer A.G. v. Winter & Ors. [1986] 1 WLR 497).
The Basic Payment Scheme
28. The BPS Scheme was introduced in 2015 as part of reform of the E.U. Common Agricultural Policy. All entitlements which had hitherto been held under the Single Payment Scheme expired on the 31st December, 2014. For the year 2015, a new scheme was allocated to those eligible. There is no dispute that the appellant was one of these. Any farmer who was entitled to receive a direct payment in 2013 under the SPS, was deemed automatically eligible to receive an allocation of entitlements under the BPS, provided he or she satisfied the conditions of allocation. To be eligible, a farmer had to hold what was described as " eligible hectare ", that is, land that was used for agricultural activity, created habitat areas under the Reps Scheme were also eligible. The land was to be managed by an applicant, and suitable for, and compatible with, the farming enterprise being conducted. The Scheme laid down conditions as to the nature of the land in question, and the type of husbandry or agricultural activity necessary for qualification. The applicant had to be an " active farmer ", and have a " declared eligible hectare " on which agricultural activity was being carried out. It was necessary to submit a form within a specified deadline. Failure to comply with the deadline could give rise to financial penalties by way of deduction, although there was a 25-day grace period after the deadline of the 15th May, 2015.
29. The appellant had no accrued legal right to demand payment of specific sums of money under the BPS. He had no debt-claim against the Department capable of being the subject of a garnishee order. It was not a salary payment for work done. Rather, the appellant had a right to claim entitlement from the Department. This was an intangible property right in the nature of an equitable chose in action. It was not an emolument by way of salary or fee derived from office. Indeed, arguably, one might conclude this case is capable of resolution upon that fact alone; even on the established jurisprudence, it is arguable a receiver could be appointed to such an equitable interest. But that might not, in itself, resolve the issue regarding future payments. It is, therefore, necessary to address the matter in a little more detail, bearing in mind that one of the divergences between the Victorian and Edwardian judges hinged on how the term jurisdiction , as vested in the courts by the Judicature Acts, should be understood. It is true that there may have been an ancient jurisdiction regarding writs of foreign attachment as Denning M.R. observed in Mareva . But, although rhetorical, it is nonetheless worthwhile posing the question whether, in any circumstances, the modern day jurisdiction with regard to Mareva injunctions and other similar ancillary reliefs would, or could, ever have been seen, by the Victorian judges, as part of the " practice " of the pre-Judicature Chancery Courts? Obviously not.
30. There is no doubt that, in both the Irish and English authorities, firm views can be found as to the extent of the power to appoint receivers under the Judicature Acts. In M'Creery v. Bennett [1904] 2 I.R. 69, for example, Barton J., in the Kings Bench Division, (Wright J. concurring), observed, in terms, that the principles applicable to the appointment of receivers were those applicable in the Court of Chancery before the Judicature Act, and that there was no jurisdiction in the Court of Chancery before that Act to prospectively impound the future earnings of a judgment debtor. Consequently, the court had no jurisdiction to prospectively impound them by the appointment of a receiver by way of equitable execution. His rationale was that future earnings or salary could not have been reached by a writ of sequestration before the Judicature Act in the Court of Chancery, and could not be reached by the appointment of a receiver by way of equitable execution in any division of the High Court " under our present practice ". (at page 74).
31. A number of strongly worded judgments of the Court of Appeal of England and Wales are to similar effect. In Harris v. Beauchamp Brothers [1894] 1 QB, Davey L.J. said:
"We should be sorry to limit by construction the beneficial jurisdiction of the Court to grant an injunction or make an order for a receiver where it is "just or convenient" to do so; but we conceive those well-known words do not confer an arbitrary or unregulated discretion on the Court, and do not authorize the Court to invent new modes of enforcing judgments in substitution for the ordinary modes ." (Emphasis added)
32. But, in North London Railway Company v. Great Northern Railway Company [1883] 11 QBD 30, 39/40, (CA), Cotton L.J. was rather more equivocal: he observed that s.25 of the English Act: "… did not intend to give the right to an injunction to parties who before had no legal right whatever, but simply to give to the Court, when dealing with legal rights which were under its jurisdiction independently of this section, power, if it should think it just or convenient, to superadd to what would have been previously the remedy, a remedy by way of injunction, altering therefore not in any way the rights of parties so as to give a right to those who had no legal right before, but enabling the Court to modify the principle on which it had previously proceeded in granting injunctions, so that where there is a legal right the Court may, without being hampered by its old rules, grant an injunction where it is just or convenient to do so for the purpose of protecting or asserting the legal rights of the parties. …"
These and other dicta have been the subject of close analysis by the English Court of Appeal in the last four decades.
33. But does the fact that the Victorian Courts of Chancery followed a particular practice now require that the courts established under the Constitution of 1937 should follow the same practice? It may be borne in mind, two other old Irish authorities, M'Creery , and In re Johnson [1898] 2 I.R. 551, (Gibson J., Boyd J. concurring), relied on principles expounded in Holmes v. Millage [1893] 1 QB, which will presently be considered in more detail. The facts in both cases differ from that in the present situation. M'Creery concerned an order against a clerk of the Petty Sessions "a public and judicial officer", the assignment of whose salary to the plaintiff seeking the order was contrary to public policy. Johnson concerned an amount payable on foot of a Grand Jury contract for maintaining a road until the work had been duly executed up to the date of the assizes. It was not sufficiently certain.
34. But, in fact, there is also other strong contemporary evidence as to the intent behind s.28(8) of the 1877 Act. In the first edition of the "Judicature Acts (Ireland), 1877 and 1878", written by Eiffe, Houston and Wylie, there is to be found the following, concerning s.28(8):
"(c) This subsection has enlarged very much the powers which Courts of Equity formerly possessed of granting receivers . It is now merely a question whether, in any case, the appointment of a receiver would be just and convenient: Anglo Italian Bank v. Davies, 9 Chancery Division, page 286, 293; 27 W R 3; Gawthorp v. Gawthorp, W.N. 1878 91." (Emphasis added)
The text continues: "A receiver may now be had after judgment as well as before, and will be granted as a means of enforcing a mere money order and a money judgment obtained in the action: Anglo Italian Bank v. Davis, supra. …".
35. Twenty-five years later, in Wylie's "Judicature Acts" (Ireland), (Dublin 1906), the following passage is to be found concerning s.28(8), which takes into account subsequent case law: "This subsection has enlarged very much the powers which Courts of Equity formerly possessed of granting receivers. (See Cummins v. Perkins (1899) 1 CH 20). Section 3 of 19 and 20 Vict, C17, prohibiting a judgment mortgagee from obtaining a receiver for a sum not exceeding £150 is impliedly repealed: … It is now merely a question whether, in any case, the appointment of a receiver would be just and convenient. (As well as the authority cited in the 1881 text above, there is the following reference to "In re Whiteley, IR 56 LTNS 846, In re Pope 17 QBD 743; but see Holmes v. Millage [1893] 1 QB 558). The court has a discretion in appointing a receiver and the power can be exercised at the trial as well as on an interlocutory application: Prytherch, In re 42 Chancery Division 590". (Emphasis added)
Another contemporary work, Cababé on "Attachment of Debts", 3rd Edition, Sweet & Maxwell, London, 1900, specifically acknowledges that there is jurisdiction to appoint a receiver, even though the debtor's interest in the property is a legal interest, and cites Pope , Whitley , and Casey v. Penrith , L.R. 29, Ch.D 993. (See pp. 98 - 104) to that effect.
36. In Picarda, "The Law relating to Receivers, Managers and Administrators", 4th Edition, Butterworths, 2000, the learned author summarised the historical background this way, under the heading "Historical Perspective":
"The approach of the judges to the kind of assets which could be reached by equitable execution has vacillated. It may be broadly stated that, until the last decade or so of the 19th Century, the approach of the judges was expansive and liberal in regard to the kind of property available to a receiver appointed by way of equitable execution, but that, with a series of Court of Appeal decisions post-dating the Judicature Acts, a form of rigor aequitatis set in, not merely in England, but also in other jurisdictions." (at p.405)
The author goes on to state that: "… after the decision of the Court of Appeal in Re Shephard [1889] 43 Chancery Division 131, at 138, the English courts exhibited a tendency to discover alternative available procedures militating against the supplementary justice of equity. …"
Picarda refers in this context to Harris v. Beauchamp Bros. [1894] 1 QB 81, Morgan v. Harte [1914] KB 183, Court of Appeal; Goldschmidt v. Oberrheinesche Metallwerke [1906] 1 KB 373. Two categories of assets were held to fall "outside the pale" of equitable execution: (i) assets already susceptible to execution or garnishment, and (ii) assets which could not be seized at common law or equity prior to the Judicature Acts. In the latter category fell the future profits of a business. In the footnotes on page 377, Picarda cites Manchester & Liverpool District Banking Company v. Parkinson [1888] 22 QBD 173, CA; Cadogan v. Lyric Theatre Limited [1894] 3 Chancery 338, CA; Holmes v. Millage [1893] 1 QB 551, CA.
37. But the more "expansive" view - as opposed to Picarda's characterisation of the "more rigid" - was not confined to the authors of contemporaneous learned textbooks. In Molony v. Cruise [1892] 26 ILTR, no less an authority than Palles C.B. held that a judgment creditor was entitled to appoint a receiver by way of equitable execution over all payments, even those that would, in the future, be made to the judgment debtor under his pension. The Chief Baron stated:
"By the Judicature Act, a power was given to the new court of both legal and equitable jurisdiction in respect of receivers. These did not extend the right of the judgment creditor to have any property taken in execution which is not liable before the Act, but the courts have held it to be just and convenient that, when a man had property out of which he could pay the debt, he should be obliged to pay it, by the appointment of a Receiver. There is the fullest jurisdiction given to the court to make the order upon such terms as the Court should think fit." (Emphasis added)
38. Later, in Moore & Others v. The Attorney General [1927] I.R. 569, Murnaghan J., concurring with Kennedy C.J. and Fitzgibbon J., in the former Supreme Court, expressed the view that s.28(8) of the 1877 Act " extends the principles " upon which jurisdiction was formerly exercised by the Court of Chancery, " although no doubt these principles may be a guide in many cases ". (at p.580). This judgment now considers the more recent Irish decisions.
National Irish Bank v. Graham
39. National Irish Bank v. Graham is the primary authority relied on by the appellant. The defendants were owners of cattle on a substantial Donegal farm. The farm itself was subject to a series of mortgages in favour of the bank. The cattle, excluding the milking herd, were the subject of a chattel-mortgage between the two Graham brothers for default on repayments. In earlier proceedings, the bank appointed a receiver and manager on foot of the chattel-mortgage. In the second set of proceedings, the bank obtained judgment against the two Graham brothers, which was in respect of a term loan and a bridging loan, neither of which had been repaid. The bank had sued out on an order of fieri facias for the judgment and interest. It then applied for the appointment of a receiver over the milking herd, which was not the subject matter of the chattel mortgage.
40. Keane J. in the High Court accepted that:
"Clearly, the milking herd could be seized and sold on foot of that order. It is understandable that the bank has not pursued that course, as not being either in their interest or the defendants' interest. But it follows inevitably that the milking herd remains the exclusive property of the defendants and since the bank has no interest, vested or contingent, in that herd there is no ground on which the court can appoint a receiver." (at page 222).
41. Keane J., therefore, declined to make an order appointing a receiver. He held that a court could only make such an order where the debtor enjoyed an equitable interest in property which could not be reached by legal process, and that, in order to obtain such an order, an applicant must have either a vested or contingent interest in the property over which the appointment was sought. He concluded that since the bank had no such interest, the court could not appoint a receiver.
42. He pointed out:
"… 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:". (at page 222) (Emphasis added)
43. The judgment then goes on to consider passages from the judgment in Holmes v. Millage, as follows: "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.""
44. In Graham , Keane J. concluded: "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."
Two authorities only were cited to the High Court; In re Shephard, Holmes v. Millage, both referred to earlier. Of course, the bank was still in a position where it could resort to the order of fieri facias directed to the Sheriff to levy from the goods and chattels of the debtor a sum equal to the judgment debt, interest and costs of execution. The Grahams were later evicted from the farm in 1996. (cf. Irish Times, 14th August, 1996).
45. The judgment in Graham was applied by the High Court (Laffoy J.) in Honniball v. Cunningham [2010] 2 I.R. 1. The Court held that a court would not appoint a receiver by way of equitable execution over property of which the judgment debtor was the legal owner, and which could be the subject of legal process. Laffoy J. considered that such a remedy was available only where the judgment debtor had an equitable interest in the property in question. Again, the more recent English authorities were not cited.
46. In Flanagan & Another v. Crosby [2014] IEHC 59, Hogan J. felt constrained to follow Graham , but posed the question as to whether the power to appoint a receiver by way of equitable execution should be confined to an equitable interest in property only, and whether, now, such a receiver could be appointed in respect of a future salary, or other emoluments to which he was in law entitled? In a thought-provoking judgment, Hogan J. queried whether the power to appoint a receiver continued to be confined to the same category of cases in which the Court of Chancery might have exercised jurisdiction prior to the enactment of the Judicature Act, and whether the power should be confined to those cases only involving equitable, as distinct from legal interests. (See para. 18). In doing so, he directed attention to the phraseology of s.28(8) of the 1877 Act, which gave the court power to grant an injunction or appoint a receiver " in all cases in which it shall appear to the court to be just or convenient that such an order be made". (See also Order 50, Rule 6(1), RSC 1986). He pointed out that injunctions had been granted in aid of legal, and not simply equitable rights, since at least the days of the Judicature Acts, and that it was not easy to discern any reason in principle as to why the power to appoint a receiver should be confined simply in aid of equitable, as distinct from purely legal rights. He posed the question as to whether it was now time to " interpret afresh " the relevant statutory words by reference to modern needs and conditions. He referred to s.6 of the Interpretation Act, 2005 which allows the court, subject to limitations, to give statutory language a contemporary interpretation. Hogan J. observed that the terminology of s.28(7) of the 1877 Act did not, in terms, confine the power of the court to grant injunctions, or to appoint receivers, to that category of cases where the power would have been exercisable prior to 1877 by the Court of Chancery. However, concluding that he was not entitled to depart from the views expressed both by Keane J. in Graham , and Laffoy J. in Honniball , he adhered to the principle identified in those cases, to the effect that an appointment of a receiver by way of equitable execution was confined to the enforcement of equitable rights only.
47. In O'Connell v. An Bord Pleanala [2007] IEHC 79, Peart J. in the High Court had to consider a case where the primary issue was whether or not a receiver might be appointed to receive future debts. The debt in question was over so much of any sum which might be payable to the judgment debtor, on foot of her settlement of her claim for damages, or on foot of a court award, as may be required to satisfy, either in whole or in part, the judgment for costs in the within proceedings. Approving and applying dicta in the English High Court in Soinco SACI v. Novokuznetsk Aluminium Plant [1998] QB 406, Peart J. pointed out that the sum of damages was not to be in any way equated with earnings or wages necessary for the applicant to live. It was a fund entirely removed from such a category. It was in the nature of a debt due for payment in the future in the event of an award of damages being made in her favour. (at page 71). This judgment was the subject of criticism in Keane, Equity & The Law of Trusts in the Republic of Ireland, 2nd Edition, Bloomsbury, para. 21.09. It is true that the order made hinged on a number of very contingent potential happenings in the future.
Holmes v. Millage [1893] 1 QB 551 CA
48. The judgment in National Irish Bank v. Graham relies, in turn, on the judgment of the Court of Appeal of England and Wales in Holmes v. Millage [1893] 1 QB 551 C.A., where the issue was whether a receiver could be appointed to receive monies in respect of all sums payable or to become due to the defendant journalist by the proprietors of The Daily Chronicle Newspaper which employed him. The defendant had no assets in England, and was residing in Paris. He was in receipt of a salary from the proprietors of the newspaper, paid to him weekly through bankers in Paris. At page 555 of the judgment in Holmes , Lindley LJ stated:
"It is an old mistake to suppose that because there is no effectual remedy at law, there must be one in equity. But the mistake, though old, and often pointed out, is sometimes inadvertently made even now. Courts of Equity proceeded upon well-known principles capable of great expansion; but the principles themselves must not be lost sight of. The principle on which alone the order in this case could be supported before the Judicature Acts is well explained by Cotton LJ in Anglo Italian Bank v. Davis; it is that Courts of Equity give relief where a legal right existed and there were legal difficulties which prevented the enforcement of that right at law."
49. But, Lindley LJ then went on at p.555: "But the existence of a legal right is essential to the exercise of this jurisdiction. The judgment creditor 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." (Emphasis added)
This is undoubtedly the ratio of the judgment.
50. Later, at page 557, Lindley L.J. distinguished the case at hand from others, saying that the difficulty in the case " arises from the fact that future earnings are not by law attachable by any process of execution direct or indirect.". In so holding, Lindley L.J. pointed out that the difficulty was not, therefore, one which " the old Court of Chancery had jurisdiction to remove."
51. In the concluding passage, at page 559, Lindley LJ stated:
"Unless a man has assigned or charged his future earnings or has made a sum payable out of them, they cannot be prospectively impounded by any of his creditors by any ordinary process of execution, whether legal or equitable. If the law in this respect is to be altered, it must be done by the legislature. But the law ought not to be altered by stretching what are called equitable executions, or in other words by appointing receivers in cases to which the equitable jurisdiction of the Court of Chancery had no ex application. Fry LJ was quite right when he warned the profession against supposing that the appointment of a receiver is a form of execution which can be obtained "without shewing to the court the existence of the circumstances creating the equity on which alone the jurisdiction arises". (See In re Shephard )."
52. Holmes v. Millage was considered a strong authority in the later Victorian cases, but it is necessary now to focus upon what was truly in issue in that decision. As pointed out in the judgment of the English High Court in Maclaine Watson & Company v. International Tin Council [1988] 1 Chancery 286, in fact, the true issue in Holmes v. Millage was whether a receiver could be appointed over all sums payable which were to become due to the defendant journalist by the proprietors of his employers, that is, the Daily Chronicle Newspaper. These observations were approved by the Court of Appeal of England and Wales in Maclaine Watson & Company v. International Tin Council (No. 2) [1989] Ch 286, at p.301/302. The question of the ratio must be considered in a lot more detail.
53. The ratio of the decision can be found at page 558 of the report. Lindley L.J. stated:
"We cannot judicially hold the appointment of a receiver in a case in which no court could grant a receiver before the Act to be just or convenient within the true meaning of section 25, clause 8, of the Judicature Act, 1873. We cannot come to the conclusion that this section was intended to alter the law of debtor and creditor, and the relation of employer and employed, to such a very serious extent as the order appealed from, if upheld, would alter them."
54. In concluding observations, at page 559, Lindley L.J. summarised: "Unless a man has assigned or charged his future earnings or has made a sum payable out of them, they cannot be prospectively impounded by any of his creditors by any ordinary process of execution, whether legal or equitable. If the law in this respect is to be altered, it must be done by the legislature. But the law ought not to be altered by stretching what are called equitable executions, or, in other words, by appointing receivers in cases to which the equitable jurisdiction of the Court of Chancery had no application. Fry LJ was quite right when he warned the profession against supposing that the appointment of a receiver is a form of execution which can be obtained "without shewing to the court the existence of the circumstances creating the equity on which alone the jurisdiction arises". (See In re Shephard)."
55. Were there any doubt upon the ratio , it is removed by what is to be found in the paragraph from page 559 of the Report of Lindley L.J.'s judgment, cited earlier.
56. It is true that in Holmes v. Millage , Lindley L.J. did opine:
"But accepting the construction put upon s. 25, clause 8, of the Judicature Act, 1873, … according to which a receiver can be appointed in a proper case by way of equitable relief at the instance of a judgment creditor against his debtor, the question next arises whether it is "just or convenient" to appoint a receiver in a case of this description. The meaning of this phrase was considered in North London Railway Co. v. Great Northern Railway Co. (11 QBD 30), and it was there decided that the phrase did not justify the granting of an injunction in a case in which no injunction could be granted by any Court before the Judicature Acts came into operation. The same reasoning obviously applies to the appointment of receivers as well as to the grant of injunctions. Although injunctions are granted and receivers are appointed more readily than they were before the passing of the Judicature Acts, and some inconvenient rules formerly observed have been very properly relaxed, yet the principles on which the jurisdiction of the Court of Chancery rested have not been changed." (Emphasis added)
57. But it is now necessary to consider the comprehensive judgment of Lawrence Collins L.J. in Masri v. Consolidated Contractors International (UK) Limited & Others (No. 2) [2009] QB 450, page 143. Addressing the proposition that it had long been thought that the power to appoint a receiver could only be exercised in circumstances which would have enabled the court to appoint a receiver prior to the Supreme Court of Judicature Act, 1873, s.25(8). Lawrence Collins L.J. considered Edwards & Co. v. Picard [1909] 2 KB 903; Harris v. Beauchamp Brothers [1894] 1 QB 801, 809/810 (CA); Morgan v. Harte [1914] 2 KB 183, 189 CA; MacLaine Watson & Co. v. International Tin Council [1988] Ch. 1 (affirmed) [1989] Ch. 253 (CA). He held that these decisions were based upon what he considered was a misunderstanding of the North Railway Company v. Great Northern Railway Company [1883] 11 QBD, and that the court was not bound by pre-1873 practice to abstain from incremental development. He concluded this jurisdiction could be exercised to apply old principles to new situations. Masri (No. 2) confirmed, or established, the following principles (1) that the demands of justice were the overriding consideration in considering the scope of the jurisdiction under the English s.37(1) Senior Courts Act, 1981; (2) a court has power to grant injunctions and appoint receivers in circumstances where no injunction would have been granted or receiver appointed before 1873; (3) a receiver by way of equitable execution may be appointed over an asset, whether or not the asset was presently amenable to execution at law; and (4) the jurisdiction to appoint receivers by way of equitable execution could be developed incrementally to apply old principles to new situations.
58. However, Masri (No. 2) also confirmed that s.37(1) of the English 1981 Act did not confer an unfettered power. There were many decisions on the injunctive power to that effect. South Carolina Insurance Co. v. Assurantie Maatschappij "De Zeven Provincien" NV [1987] AC 24, at 40; Gouriet v. Union of Post Office Workers [1978] AC 435, 500/501, 516; Siskina [1979] AC 210, 256; Bremer Vulkan Schiffbau und Maschinenfabrik v. South India Shipping Corpn. Ltd. [1981] AC 909, 979; British Airways Board v. Laker Airways Ltd. [1985] AC 58, 80/81; P v. Liverpool Daily Post and Echo Newspapers plc. [1991] 2 AC 370, 420/421; Channel Tunnel Group Ltd. v. Balfour Beatty Construction Ltd [1993] AC 334, 341, 360/361; Mercedes Benz AG v. Leiduck [1996] AC 284, 298 (PC). The judgment re-affirmed that the power to appoint receivers under the English section was not unfettered. Lawrence Collins L.J. held, at para. 180, that it was doubtful whether suggestions by Sir John Donaldson MR, and Browne-Wilkinson L.J., in Parker v. Camden London Borough Council [1986] Ch 162, at 173 and 176, that the jurisdiction to appoint a receiver was unlimited, could stand with the rejection by the House of Lords in P v. Liverpool Daily Post and Echo Newspapers plc [1991] 2 AC 370, 420 to 421 , and the rejection of similar statements by Lord Denning MR in Chief Constable of Kent v. V [1983] QB 34, 42, in relation to the power to grant injunctions. (See Fonu (Appellant) v. Merrill Lynch Bank & Trust Co (Cayman) Ltd. & Others (Respondents) , UK PC 17, Lord Collins approving Masri ).
59. The Court of Appeal closely analysed the judgment in North London Railway Company v. Great Northern Railway Company [1883] 11 QBD. It held that, in expressing the views just quoted, Lindley L.J. misunderstood what had been decided in Northern Railway Company , and that one judge, Brett L.J. left the question of scope of remedies open, (but expressing a view that a view that the court would not have the power), whereas, by contrast, Cotton L.J. accepted that s.25(8) expanded the scope of remedies which might be available. ( Masri , para. 47).
60. The judgment summarised the position as being that Holmes v. Millage stands only for the proposition that a receiver should not be appointed over a debtor's future salary, but not for the principle that a receiver could only be appointed to an equitable interest. Insofar as Holmes was understood as providing authority that the concept of " just or convenient " hinged on an interpretation of pre-Judicature Act Court of Chancery practice, it was incorrect; and that there was, in fact, authority for the proposition that the effect of the Judicature Acts was to extend the power of the courts to appoint receivers by way of equitable execution, where hitherto there had been no such power. Finally, the English Court of Appeal held that it lay within the power of the courts to incrementally interpret what is just or convenient in accordance with the requirements of today, as follows:
"146 The first case to deal with the effect of section 25(8) on the power to appoint a receiver by way of equitable execution was Manchester and Liverpool District Banking Co Ltd v Parkinson (1888) 22 QBD 173. The court consisted of Lord Esher MR (as Brett LJ had become) and Fry and Lopes LJJ. Without citation of North London Railway Co v Great Northern Railway Co 11 QBD 30 all three members of the court seem to have accepted, obiter, that section 25(8) gave the court powers which did not exist prior to 1873, at any rate where special circumstances existed: see p 175, per Lord Esher MR; p 177, per Fry LJ; and p 178, per Lopes LJ.
147 But later cases held that what they meant was special circumstances which would have enabled the court to appoint a receiver prior to 1873: Harris v Beauchamp Bros [1894] 1 QB 801, 809-810; Morgan v Hart [1914] 2 KB 183, 189. In those decisions (and in Holmes v Millage [1893] 1 QB 551, 557 and Edwards & Co v Picard [1909] 2 KB 903, 905) it was held that the Judicature Acts did not enlarge the powers of the court to appoint a receiver. In Holmes v Millage [1893] 1 QB 551, 557, per Lindley LJ, and Morgan v Hart [1914] 2 KB 183, 191, per Buckley LJ, it was said that North London Railway Co v Great Northern Railway Co was authority for the proposition that section 25(8) gave no power to the court to grant an injunction in a case where no court could have granted one before the 1873 Act. This seems to have been based on a misunderstanding. In fact, as I have said, at paras 144-145 above, Brett LJ left the question open (but expressing a view that the court would not have the power) whereas, by contrast, Cotton LJ accepted that section 25(8) expanded the scope of the remedies which might be available."
But the judgment points out: "148 In the same period there is another decision of this court on the appointment of receivers by way of equitable execution which echoes the approach of Cotton LJ. In Cummins v Perkins [1899] 1 Ch 16 a decision which was not cited on this appeal, it was held that a receiver could be appointed even when the judgment debt, for costs, had not been quantified. …"
Cummins v. Perkins 61. In Cummins v. Perkins [1899] 1 Chancery 16, Lindley L.J., by then Lindley M.R., and Chitty L.J. had to consider an action by a married woman suing in respect of her separate estate which at the trial had been dismissed with costs to be taxed and payable out of her separate property, but not otherwise. The only separate property which the plaintiff held consisted of a share coming to her under a will. Before the taxation of the defendant's costs had been completed by certificate, the trustees of the will, being about to distribute their estate and pay the plaintiff her share, the defendants applied for the appointment of a receiver to receive that share, and hold it as security for the costs when taxed.
62. Both appeal judges held that, even independently of the s.25 of the English Judicature Act, 1873, there was jurisdiction to protect the fund out of which the costs were payable by injunction, or the appointment of a receiver, and that a receiver ought to be appointed. Having outlined the facts, Lindley M.R. said:
"The learned (trial) judge was of opinion that this fund was in danger - that is to say, that the plaintiff was in a position to get it and would do so, and if she obtained possession of it the defendants would not get their costs. Thereupon the learned judge did that which I think he had ample jurisdiction to do - he appointed a receiver to protect that share and to preserve it, in order that it may be applied in accordance with the judgment which the defendants had obtained.".
He then went on: "It is said that this order was wrong. It is said that it amounts to "equitable execution," and there has been some discussion upon that footing. But we are dealing with equitable estates and a judgment that a debt is to be paid out of a particular equitable estate. That being so, the authorities, which were very familiar thirty-five or forty years ago, shew plainly that, quite independently of the Judicature Act, 1873, if a plaintiff had a right to be paid out of a particular fund he could in equity obtain protection to prevent that fund from being dissipated so as to defeat his rights. He might not have had a specific charge on the fund so as to give him priority; but, after a long series of decisions - there was some doubt about it at one time - the Court settled that a person who had a right to be paid out of a particular fund could obtain an injunction (and if an injunction, it followed on principle that he could obtain a receiver) in a proper case to protect the fund from being misapplied."
But then Lindley M.R. concluded: "That is the principle on which the learned judge has acted here - a perfectly sound principle, even without invoking the aid of s.25 of the Judicature Act. But the introduction of that section does not curtail the power of the Court to grant injunctions or to appoint receivers: it enlarges it. It has not revolutionised the law, but it has enabled the Court to grant injunctions and receivers in cases in which it used not to do so previously. I will not say where it had no jurisdiction to do so, that would be going too far, but where in practice it never did so, as, for example, in trespass and in the case of a first mortgagee who was out of possession. There is absolutely nothing wrong in the order. ..." (Emphasis added)
63. In my view, the distinction between the views expressed in Holmes and Cummins goes beyond nuance. There is considerable significance in what Lindley M.R. stated towards the end of the passages just cited in Cummins . He drew a distinction between the question of jurisdiction , and that of practice . He did not say that the Courts of Equity had no jurisdiction to grant such an order, but that, in practice , they did not do so. Taken in conjunction with the other material referred to earlier, it would appear to challenge any assumption that Jessel M.R. was " misled " as to the scope of the jurisdiction. (cf. Keane, op.cit, para. 15.09).
64. Earlier, in Anglo Italian Bank v. Davies , Court of Appeal, [1878] 9 Chancery Division 275, the Court of Appeal considered the situation where a creditor who had recovered judgment in an action in the Chancery Division for payment of a sum of money sued out an elegit (an old form of execution writ) against his debtor. His only interest in land was an equity of redemption in fee. The creditor then commenced an action in the Chancery Division claiming to have it declared that he was entitled to a charge on the land, and to have such charge enforced by sale, foreclosure, delivery in execution, or otherwise as the court might direct, and asking for a receiver.
65. Jessel M.R., too, considered whether the Judicature Act of 1873 had extended the power to apply for an injunction. He expressed his view this way:
"When an injunction might be applied for either before or after judgment, it appears to me impossible to limit the effect of the 8th sub-section to a case of applying before judgment. It seems to me, therefore, that there is a larger discretion given by the 8th sub-section to the Judges as to when they shall grant an application than they had before. Of course, like every new power, it must be exercised for judicial reasons; but the existence of such power gets rid, as it appears to me, of any decisions, if such decisions there be, limiting the exercise of the discretion as regards the exercising it on an interlocutory application as distinguished from a trial at law." (Emphasis added)
66. Reading that passage, it is impossible not to conclude that similar considerations apply to an extension of the power to appoint a receiver. While Brett L.J., the second member of the court, expressed no view, Cotton L.J. put his views firmly: "My opinion is, that the appointment of a receiver is now delivery of execution by lawful authority within the meaning of the Act of 27 & 28 Vict. c. 112, and that there is nothing whatever to prevent the Court from interposing on interlocutory motion. If there were any formal difficulty, in my opinion the Judicature Act, 1873, s. 25, sub-s. 8, removes it. Under that sub-section the Court may and does grant receivers when it never could have done so before . Thus, for instance, it has power to grant a receiver under that section where a Plaintiff has himself the power of obtaining possession at law." (Emphasis added)
Consideration: Section 6 Interpretation Act, 2005 67. As can be seen, therefore, that these jurisdictional questions have been a recurrent leitmotif in the case law for over a century. It cannot be said the law was ever definitively settled, although for many years the later Victorian judgments prevailed. In Flanagan , Hogan J. posed the rhetorical question as to whether it was now time to " interpret afresh " the statutory words " just or convenient " contained in s.28(8) Judicature Act, 1877. Section 6 of the Interpretation Act, 2005 provides: "In construing a provision of any Act or statutory instrument, a court may make allowances for any changes in the law, social conditions, technology, the meaning of words used in that Act or statutory instrument and other relevant matters, which have occurred since the date of the passing of that Act or the making of that statutory instrument, but only in so far as its text, purpose and context permit."
68. I note in passing that the stated purpose of the Judicature Act, 1877 was to " improve the administration of justice ". Section 67 of that Act provides: "Save as by this Act or by any rules of Court may be otherwise provided, all forms and methods of procedure which at the commencement of this Act were in force in any of the Courts whose jurisdiction is hereby transferred to the said High Court, and to the said Court of Appeal, respectively, under or by virtue of any law custom general orders or rules whatsoever, and which are not inconsistent with this Act or any rules of Court, may continue to be used and practised in the said High Court of Justice, and the said Court of Appeal, respectively, in such and the like cases, and for such and the like purposes, as those to which they would have been applicable in the respective Courts of which the jurisdiction is so transferred if this Act had not passed." (Emphasis added)
69. The section merely provided that the post-Judicature Acts may continue to use the old procedures and practices. It did not mandate that procedure. Indeed, in any case, one can draw a distinction between " procedure " and " practice ", just as one can between " jurisdiction " and " practice ".
70. There is no doubt that, in the context of Mareva injunctions, the Court has either expressly or by necessary implication, imparted a contemporary interpretation to the terms just and/or convenient to s.25(8). Simply from the perspective of consistency, it seems incongruous that, in this one area of law, the terms should be interpreted only through the lens of the practice of the Courts of Chancery prior to the 1870's. It is noteworthy that the Judicature Act itself allows for its own modification by rules of court. The relevant Rules of Court 1986 have been referred to. It is sufficient to say that Masri has cast doubt upon the strength of the Victorian authorities which are frequently cited. It cannot be said that all the persuasive authorities point one way. Rather, I think it can be said that the Victorian judges, for good and understandable reasons, resorted to certain Court of Chancery practices in order to limit what might have been seen as a power without limitation.
71. In what follows, I refrain from expressing any concluded view on whether the effect of the 1877 Act was to fuse law and equity. No such broad assumption is necessary for the narrow and limited conclusion reached in this judgment. But, now, considering s.28(8) in light of today's conditions, and, if necessary, subject to the constraints contained within s.6 of the 2005 Act, I think little significance can be attached to the usage of the word " or " between the terms " just " and " convenient ". Nor, I think, can great significance be attached to the usage of the term " interlocutory ". These must be seen in light of the entire provision. Section 28(8), in its entirety, which uses quite broad terminology, stating, in terms, that such orders may be made " unconditionally ", or upon " such terms and conditions as the court shall think just ". Even as a matter of first impression, to suggest that the term " just " should be given such a highly restricted 19th Century meaning, comes close to an interpretation which would be absurd; it invites the conclusion that the concept of " justice " be crystallised at a very distant point in time. The provision itself uses terms which imply that a court should assess the question of " justice " upon conditions identified in the case before it. When read in its entirety, the provision lends itself to that interpretation. Had 19th Century legislators desired to limit the jurisdiction, it would not have been difficult to do so explicitly. The interpretation urged by the appellant requires the Court to construe the operative parts of an important provision through the lens of a bygone era. The earlier authorities relied on by the appellant have been significantly discounted, if not more, by Cummins v. Perkins , and in the modern persuasive jurisprudence from the neighbouring jurisdiction. This Court is not, of course, bound by these authorities, and is not obliged to follow them. But these closely reasoned authorities support the proposition that, at minimum, Holmes should be understood in the limited way explained earlier. Whether even that conclusion can now withstand scrutiny is now a matter which also must be considered. This should not, however, be seen as granting an unfettered power. The obligation on the Court is to grant an order only when it is " just ". Such a conclusion can only be based on the facts of the case, and by ensuring that an application to appoint a receiver by way of equitable execution is appropriate, and does not have the effect of being overly onerous on a judgment debtor. In my view, s.28(8) must now be interpreted in order to make allowances for " changes in the law " in this State, s.6, 2005 Act. The persuasive dicta cited from the neighbouring jurisdiction do not, in fact, require this Court to arrive at the conclusion that law and equity have been fused. It is reasonable to have regard to the fact that incremental developments in the law in England and Wales have taken place from 1975 onwards by interpretation of similar words to the s.28(8) of the 1877 Act. Such an interpretation recognises the reality that our courts have actually implicitly or expressly proceeded on this interpretation in a number of areas critical to commercial life in the 21st Century. But, more fundamentally, a more flexible interpretation does not require the law be more demanding on judgment debtors; rather it simply requires that a judgment debtor lay his or her cards on the table, in order that a court can do " justice ", a value that takes priority over " convenience ".
72. These are strong pointers. There is no doubt that Holmes was an authority on future earnings, at least insofar as concerned the relationship between employer and employee. But, as it happens, payment here is not a future earning.
Future Payments
73. There are, in fact, already a number of Irish cases in which receivers by way of equitable execution were appointed over future payments. (See, generally, the very comprehensive consideration of this issue in S. Collins, "Enforcement of Judgments", Roundhall, 2014). In Garrahan v. Garrahan [1959] I.R. 168, the High Court, Dixon J. held that the restriction imposed by Article 12(1) of the Garda Siochana Pensions Order 1925, that pensions should be inalienable by the voluntary act of the pensioner, otherwise than for the benefit of the pensioner's family, did not extend to the involuntary alienation thereof, and accordingly did not preclude the appointment of a receiver by way of equitable execution over such a pension.
74. In Ahern v. Michael O'Brien & Company Limited [1991] 1 I.R. 421), O'Hanlon J. approved the appointment of a receiver by way of equitable execution over certain ground rents payable to the defendant out of properties composed in a Folio in County Cork, the defendant company being entitled to a moiety interest in the said lands in common with another person. In the course of his judgment, O'Hanlon J. observed that " Generally speaking, a receiver by way of equitable execution will not be appointed over payments to be made in the future, but only over payments which have already accrued due and which have not as yet been paid over to a defendant. " ( Clery & Co. (1941) Ltd. v. O'Donnell , High Court, 78 I.L.T.R. 190). However, he observed that, in exceptional circumstances, this rule has been relaxed. (See Orr v. Grierson (1890) 28 L.R. Ir. 20), where a receiver by way of equitable execution was appointed over accruing gales of a net head-rent for a limited number of years, estimated as sufficient to satisfy a judgment.
75. It is true that in Cohen v. Ruddy [1895] 2 I.R. 56, the Kings Bench Division in Ireland declined to follow Orr v. Grierson , in the circumstances of that case, the basis of the distinction being that, in the latter case a number of payments had to be made by the landowner out of the annual rent received by him. Fitzgibbon L.J. said:
"It is not the practice of the Kings Bench to appoint a receiver by way of equitable execution, unless it is proved that all the money that come to his hands under the execution will be the money of the defendant."
76. In Ahern , however, O'Hanlon J. observed that, prima facie , the monies payable in favour of the defendant by way of ground rents might not be subject to disbursements in favour of third parties, save that tax may be payable, therefore, felt in a position to make the order.
77. The question of whether a receiver can be appointed over future payments has also been the subject of incremental change elsewhere. In Soinco SACI v. Novokuznetsk Aluminium Plant [1998] QB 406, the High Court of England and Wales, Colman J., expressed the view that there was no reason why, 124 years after the Judicature Acts, the court should deny to itself a jurisdiction which was self-evidently likely to be extremely useful as an ancillary form of execution.
78. Similar observations were made by Lawrence Collins L.J. in Masri , to the effect that there was no longer a rule, if ever there was one, that an order could only be made in relation to property which was amenable to legal execution. In Fonu , a decision of the Privy Council, cited earlier, the claimant obtained a $30 million judgment against the defendant in Turkey. He sought to appoint a receiver by way of equitable execution over two discretionary trusts in the Caymen Islands, with assets of $24 million. The defendant, who had been declared bankrupt in Turkey, had power of revocation of the trusts. Allowing the appeal, and making the order sought, Lord Collins, perhaps unsurprisingly, approved the judgment of the Court of Appeal which he himself had delivered in Masri .
79. But what is in question here is not, in fact, a salary for work done at all. It is more in the nature of a grant or entitlement. It must be emphasised that one of the factors to which a court must have significant regard is whether such appointment would have a prejudicial effect on third parties, or their interests. It is also self-evident that the interest, which is to be the subject matter of the application, must be sufficiently well defined. In the instant case, this poses no difficulty, any more than was the case with the predecessor order. The Court must have regard to the effect upon the judgment debtor. But, in light of the developments in the law, it must be doubted whether earlier policy based considerations can still hold sway. (See, by way of illustration, cf. Civil Debt Procedure Act, 2015, ss. 6 to 10).
Inchoate?
80. It is said the chose in question is not sufficiently substantive. An illustration of how far the Courts of Chancery were prepared to go can be seen from the decision of Kearns v. Leaf [1864] 1 H&M 581, where the Vice Chancellor, Sir W. Page Wood, held that:
"A policy-holder, by whose policy the funds of a company were made liable to pay the sum insured, and certain shares of profit by way of bonus: Held, entitled to an injunction to restrain the company from transferring its business and assets to another company contrary to the provisions of the deed of settlement, and without making provision out of its own assets for payment of the Plaintiff's policy."
81. It is notable that the Vice Chancellor rejected the argument that the policy-holder was simply a contingent future creditor minus the personal remedy. He held: "In my opinion the Plaintiff did acquire under that contract such a species of interest in the fund as would entitle him to interfere to save the property from being wasted contrary to the provisions of the deed."
He held that what was required was that "some provision" be made by the Argus, not the possibility of the contract being carried out by the Eagle.
82. The question then comes down to whether the chose in action which the appellant holds sufficiently clear, or " choate ", so as to allow for the appointment of a receiver? There is significant English authority to the effect that a receiver can be appointed in a range of circumstances which go far beyond what would have been envisaged by the Courts of Chancery prior to the Judicature Acts. One can no longer say that the rules of equity are "carved in stone", or express "immutable principles", unless changed by the Oireachtas. The extent of incremental development which has already taken place in this jurisdiction, in analogous cases, renders the step taken in this case as relatively slight. In Bourne v. Colodense Limited [1985] ICR 291, the English Court of Appeal held that a receiver might be appointed, even in respect of a claim to an indemnity, and consequently the jurisdiction was not limited to choses in action which were available for legal execution. In Maclaine Watson & Co Ltd v. International Tin Council [1988] Ch 1, the English courts held there was jurisdiction to appoint a receiver in respect of a claim by a judgment debtor to be indemnified by a third party, even though the claim to be indemnified was not susceptible to any process of equitable execution. But the application failed because the applicants had failed to show that they had a good arguable case that the judgment debtor had any justiciable cause of action against the third party member state.
83. In the instant case, it seems to me, the remoteness or vagueness is significantly less. The chose in action is very similar to that to which the appellant raised no objection in 2011. The only step necessary for the appellant was to make an application for the BPS. It is true he had no accrued legal right, or debt claim, rather, simply, a right to claim a payment. But the Court has not been provided with any reason why the BPS would have been unavailable, or why, by simply making the application, he would not have received the BPS, just as he had received previously the SPS. It has not been shown that it should not become available as a matter of justice. It has been shown that the payments on the SPS had significantly reduced the earlier indebtedness. As stated earlier, the appellant made no complaint about the effect of the earlier order, or depose anything about the effect which these previous deductions had had upon him. It is in those circumstances, that I would hold that the appointment of a receiver by way of equitable execution in the instant case was warranted and justifiable. The BPS is in this respect little different from the SPS, concerning which the appellant raised no objection.
84. The end point of the discussion returns to the starting point: the meaning of two words. I wish to re-emphasise, however, that what will be determined as being " just or convenient " in any one case remains a matter for a court to determine on the facts of each case. Like the courts in the latter half of the 19th Century, the courts now must be vigilant to ensure that the position of a judgment debtor is not rendered unsustainable by the making of such an order. That is a matter for judgment in each individual case. An onus will, therefore, lie upon a judgment-debtor to place full and candid evidence before the Court as to the effect which the appointment of a receiver will have upon him or her. It is an "evidence based" approach. A court will then be placed in a situation to determine whether or not a receiver should be appointed. " Convenience " cannot be subservient to justice. No evidence has been placed before the Court in this case that, in the sense of the provision and the Rules, the appointment would be " unjust ". I would, therefore, uphold the judgments of the Court of Appeal, on the grounds set out in this judgment.
