Scottish Sheriff Court Decisions

 


S51/04

JUDGEMENT OF

SHERIFF PRINCIPAL BA KERR, QC

in the cause

CAMERON KING RUSSELL, permanent trustee on the sequestrated estates of Mrs Joan Hoblyn

Pursuer/Respondent

against

MRS JOAN HOBLYN

Defender/Appellant

Paisley, 8 June 2006 Act: Ms McCredie for permanent trustee

Alt: Party

The Sheriff Principal, having heard the solicitor for pursuer/respondent and the defender/appellant personally on the appeal, Refuses the appeal; Adheres to the interlocutor of the sheriff dated 31 January 2006; Finds the defender/appellant liable to the pursuer/respondent in the expenses of the appeal; Allows an account thereof to be given in and Remits same when lodged to the auditor of court to tax and to report; Remits the cause to the sheriff to proceed as accords.

BA Kerr

NOTE:

In this sequestration process a note was presented to the court by the permanent trustee craving the court to order in terms of section 64(2)(b) of the Bankruptcy (Scotland) Act 1985 the handing over by the debtor to the permanent trustee of a Honda motor car and also the payment of certain monies. On 31 January 2006 the sheriff after hearing parties on the note refused the crave in so far as it sought payment of the monies but granted that part of it relating to the motor car. Against the sheriff's order to hand over the car the debtor has now marked an appeal to the sheriff principal timeously but without seeking or obtaining leave to appeal.

As to the competency of this appeal, I consider the sheriff's order of 31 January 2006 requiring the debtor to hand over the motor car to the permanent trustee to be an order ad factum praestandum within the meaning of section 27(b) of the Sheriff Courts (Scotland) Act 1907 and so to be an interlocutor appealable to the sheriff principal without leave. I did not accept the respondent's submission that an order under section 64(2) of the Bankruptcy (Scotland) Act 1985 is somehow not subject to or covered by section 27(b) of the 1907 Act because section 64 provides for special criminal penalties in the event of non-compliance whereas an order ad factum praestandum made in any other context would give rise only to the normal penalties for contempt of court if not obtempered: it remains in my opinion an order ad factum praestandum in nature and I do not think the fact that it is also an order under section 64(2) places it in some special or secluded category unaffected by the provisions of section 27. I was referred to Ingle's Trustee v Ingle 1996 SLT 26 in which the Court of Session decided that an order under section 64(2) was not a final judgement and that leave was accordingly required for it to be appealed: it was submitted that this decision ruled the whole matter and that leave was necessary (which here had been neither sought nor obtained). It is apparent however from the report in that case that no point was there taken under section 27(b), although it perhaps could have been, and their Lordships of the Court of Session were not asked to and did not consider the possible application of section 27(b) to an order under section 64(2) which might be of the nature of an order ad factum praestandum. I do not consider therefore my decision in the present case to be ruled by the opinion of their Lordships in Ingle's Trustee.

I should make it clear that my decision extends only to the circumstances of the present case and the order in it of the sheriff requiring the handing over of a motor car: I am not to be taken as saying one way or the other whether an order of the type with which Ingle's Trustee was concerned (an order by the sheriff under section 64(2) requiring the debtor to provide a list of her assets and liabilities) would or should properly be viewed as an order ad factum praestandum within the meaning of section 27(b). An "order ad factum praestandum" normally means of course simply an order to perform an act of some sort (other than mere payment of money) and I am not in doubt that an order for delivery of an article having some value into the possession of another falls within the category envisaged by section 27(b). The purpose of section 27(b) is, as I perceive it, to permit an appeal without leave against an order pronounced at an intermediate stage of an action or court process which might be difficult in practice to reverse if review of it were left until an appeal could be taken against the final judgement and all prior interlocutors only at the end of the proceedings when they had run their full course at first instance; by that time the recovery of money paid under an interim decree or the recovery of an item delivered such as a motor car might well be difficult or impossible even if an appellate court then declared the orders pronounced earlier at an intermediate stage to have been wrong and the successful appellant could be deprived of the redress to which the appellate court had found him entitled.

As to the merits of the present appeal, I consider the solicitor appearing for the respondent to have been correct in her submission to me to the effect that the date at which the value of a vehicle is to be assessed for the purposes of section 11(1)(b) of the Debt Arrangement and Attachment (Scotland) Act 2002 is in a bankruptcy context the date at which the debtor's estate vests in the permanent trustee in terms of section 31(1) of the Bankruptcy (Scotland) Act 1985, namely the date of sequestration which in the present case was 14 April 2004 (the date of first deliverance, or "warrant to cite", under section 12(2) and (4)(b) of the 1985 Act). In other words the tempus inspiciendum for valuation under section 11(1)(b) of the 2002 Act as applied to bankruptcy proceedings by section 33(1)(a) of the 1985 Act is the date of sequestration. It is not known to me, nor was it known to the sheriff (to whom submissions on this matter were not made), what was the value at 14 April 2004 of the Honda Civic motor car registered number S135 ESF. The nearest I came to any indication of that value was the figure of £3500 recorded by the respondent's assistant in a document in process labelled "Supplementary Questionnaire": this I was informed came from the mouth of the debtor herself at an interview conducted by the said assistant on or about 26 May 2004, but was said to me by the appellant to have been very much a "guesstimate" made off the top of her head at the time and not a figure based on any proper valuation of the car then or at any other time by any person professing expertise in such matters. I am not inclined to attach significance therefore to the £3500 figure and regard the value of the car at 14 April 2004 as in effect an unknown. That however does not assist the appellant in my view because I consider the onus to lie on the debtor in this situation to demonstrate to the court's satisfaction that the value of the vehicle at the date of sequestration was £1000 or less. The provisions of section 11(1) of the 2002 Act, as applied by section 33(1)(a) of the 1985 Act, are conceived in the debtor's favour (who until sequestration is moreover the possessor of the vehicle) and it is for him/her to bring himself within their ambit to the satisfaction of the court in order to have the benefit conferred by them. If, as here, the court is left with no knowledge of the car's value at the date of sequestration it cannot in my opinion apply section 11(1)(b) in favour of the debtor so as to exempt it from become vested in the permanent trustee as part of the sequestrated estate.

In addition however to the foregoing submission correctly advanced on the respondent's behalf it appears to me that section 11(1)(b) is worded in a manner which precludes reliance upon it by the debtor in her present situation. The presence of the word "so" occurring immediately before the word "reasonably" has I think been overlooked by the debtor and its presence makes a significant difference to the meaning and application of paragraph (b) of the subsection. If the word "so" had not appeared paragraph (b) would still make sense and the question for the court would simply be whether the sheriff was persuaded by the debtor that she reasonably required the use of the vehicle for whatever purpose (assuming its value at the date of sequestration to have been £1000 or less). The presence of the word "so" however constitutes a reference back to the preceding paragraph (a) and has the effect accordingly of requiring the vehicle to be viewed as a tool of the debtor's trade in order for it to be exempted. In other words paragraphs (a) and (b) of section 11(1) fall to be construed together and have the effect of adding a vehicle worth £1000 or less to the other tools of the debtor's trade which are exempt up to an aggregate value of £1000 provided that the debtor can show that he reasonably requires the vehicle in the practice of his profession, trade or business. An example might be, I suppose, a self-employed plumber or electrician who has an old van which he needs to carry himself and his equipment round from job to job. I assume that the draftsman of section 11(1) decided that it was simpler to add the vehicle in a paragraph of its own rather than attempt to re-word paragraph (a) so as to include the reference to an additional item itself worth £1000 or less in it. It was suggested by the appellant that she needed the Honda car in order to trade in second-hand clothing and household effects which in her present straitened circumstances she had to sell frequently at car boot sales but I do not find it possible to regard such activity on her part as constituting a profession, trade or business of the type contemplated by paragraph (a) of section 11(1) of the 2002 Act.

For these reasons, although I hold the appeal to be competent, I consider it to be ill-founded as to its merits and therefore must refuse it. A motion for expenses made on the respondent's behalf was not resisted and will be granted accordingly.

BAK