Barker (George) (Transport) Ltd v Eynon
| Jurisdiction | England & Wales |
| Judge | SIR GORDON WILIMER,LORD JUSTICE STAMP |
| Judgment Date | 18 December 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J1218-3 |
| Date | 18 December 1973 |
| Court | Court of Appeal (Civil Division) |
[1973] EWCA Civ J1218-3
Lord Justice Edmund Davies,
Lord Justice Stamp and
Sir Gordon Wilimer.
In The Supreme Court of Judicature
Court of Appeal
(Appeal of Plaintiffs from judgment of Mr. Justice Mocatta, London, witheut a jury, dated April 18, 1973)
MR M. TUGENDHAT, (instructed by Messrs. Tucker, Turner & Co.) appeared on behalf of the Appellants (Plaintiffs).
MR D. VAUGHAN for MR J. PHILIPS, (instructed by Messrs. Waterhouse & Co.) appeared on behalf of the Respondent (Defendant).
LORD JUSTICE EDMUND DAVTES: The plaintiffs appeal from the decision of Mr. Justice Mocatta whereby he dismissed their action for a declaration that at the material time they had a general lien enforceable against certain goods and that by reason thereof they are entitled to recover £3,335.50 from the defendant. The defendant admits liability only for £55,40, and the case involves what is said to be a novel point of law regarding the enforceability of a lien after the appointment of a Receiver. Certain issues of fact were resolved by the learned trial Judge and there is no appeal or cross-appeal against his findings in relation to them.
The plaintiffs are transport contractors who from the autumn of 1970 had done regular business with Alderley Moats (U. K.) Ltd. (hereinafter called "the Company's), who are meat Importers. They collected the Company's meat at the docks, and thence delivered it in their refrigerated trailers to the various customers of the Company. It is common ground that all transport orders given by the Company wore accepted by the plaintiffs subject to the Conditions of Carriage of the Road Haulage Association Ltd. Condition 13 thereof is in the following terms: " General Lion. The Carrier shall have a general lien against the owner of any goods for any moneys whatsoever due from such owner to the Carrier. If any lien is not satisfied within a reasonable time the Carrier may at his absolute discretion sell the goods as agents for the owner and apply the proceeds towards the moneys due and the expenses of the sale, and shall upon accounting to the Trader for the balance remaining, If any, be discharged from all liability whatsoever in respect of the goods". The practice followed was for the Company to pay the plaintiffs' charges between fourand six weeks after delivery of the consignments. The last payment before the events later giving rise to this litigation was made on August 5th, 1971, and this covered transport charges Incurred down to June 23rd.
Unknown to the plaintiffs, on February 5th, 1970, that is, before they started doing business with Aiderloy Meats (U. K.) Ltd., the Company had by a mortgage debenture charged its property to Westminster Bank Ltd. as a continuing security for the payment of all sums which at any time might become due to the bank as "…. a floating security but so that the Company Is not to be at liberty to create any mortgage or charge in priority to or pari passu with the charge hereby created …. or to deal with Its book or other debts or securities for money otherwise than by getting in and realizing the same in the ordinary course of business".
In accordance with their practice, the Company sent to the plaintiffs on August 23rd, 1971, a Transport Order to collect from the "English Star, P. L. A. London", 649 cartons of New Zealand moat (roughly equivalent to 17 tons) and deliver them to consignees at Gravosond. By that date the Company owed the plaintiffs £3,233,70 In respect of transport charges which they had Incurred since June 23rd. As the consignment had been stored In two different parts of the vessol, the Transport Order was accompanied on this occasion by two Delivery Orders of the same date from the Company, addressed to the Superintendent of the Port of London Authority and requesting him to deliver to the plaintiffs (a) 333 cartons Order No. 3949, and (b) 316 cartons under Order No. 3950. On August 25th; 1971, the plaintiffs collected In London and delivered at Gravosond the 333 cartons, their charge for thattransport being £43.20. It is what happened before the remaining 316 cartons were dealt with that has given rise to difficulty, for on Tuesday, August 31st, 1971, the defendant, Mr. Eynon, was appointed Receiver of the Company pursuant to the Westminster Bank's mortgage debenture. The plaintiffs received no written notification of his appointment until September 6th, but they nevertheless learnt of it on September 2nd. What happened was that, having competed the first part of the Transport Order on August 25th, the plaintiffs had made several enquiries at the docks as to whether the remaining 316 cartons had boon unloaded. They were finally informed on the morning of Thursday, September 2nd that they had. The plaintiffs forthwith set to work, removing 117 cartons from the quayside to their Barking depot five miles away during the morning shift, and the remaining 199 cartons during the afternoon shift. Some time on that same day a representative of the Receiver telephoned a member of the plaintiffs ' staff at Barking and Informed him of the defendant's appointment as Receiver. It may have boon that is telephone conversation occurred between the two short journeys or after both had been completed - it matters not, in my judgment. Whichever it was, the substance of what occurred was that the Receiver's representative denied that the plaintiffs had any general lion on the 316 cartons (the value of which was £4,755) In respect of their transport charges which, Including the last consignment, came to the sum of £3,335,30 claimed In these proceedings. The plaintiffs were urged by the representative to enter into a raw contrast to carry the 316 cartons the 25 miles to Gravesend and there deliver them to the consignees on the Receiver's undertaking to pay their transport charges of £58.40 for that particular journey only. The plaintiffs did not accede tothis suggestion and they forthwith wrote off to their solicitors for advice.
The Receiver was naturally anxious to achieve prompt delivery of the meat to Gravesend, so as to avoid its deterioration, and on September 3rd there were: several discussions between him and the plaintiffs. Their effect was that, as Mr. Justice Mocatta found, "it was orally agreed that the plaintiffs would deliver the 316 cartons to the consignees at Gravesend without prejudice to any general lion they might have upon the goods, that the Receiver would In any event pay the plaintiffs' charges of £58.40 for the delivery of the 316 cartons, and, If the plaintiffs could thereafter establish that they were entitled to refuse to deliver the cartons pursuant to their claimed general lien, the Receiver would pay the plaintiffs the sum owed them by the Company". Following upon the making of this agreement, the plaintiffs, duly delivered the 316 cartons at Gravesend the next day. Thereafter they wrote claiming their entitlement to payment of the sum of £3,335.30 on the aforementioned grounds, while the Company repudiated all liability save in the sum of £58.40.
In dismissing the claim, Mr. Justice Mocatta said that the real Issue was "whether the appointment of the defendant as Receiver on August 31st, 1971, when the plaintiffs were not in possession of the 316 cartons, prevented the creation of Condition 13 of the contract, so as to allow the creation of a general lien subsequent to the plaintiffs obtaining possession of the goods on September 2nd". He expressed his conclusion in this way: "At the date of the appointment of the Receiver here, the plaintiffs possessed no lien on any cartons of meat. They merely had a contractual right which, In certain circumstances arose, however the Receiver had boon appointed". Thischronology constituted, so Mr. Justice Mocatta considered, "a vital distinction"' between the present case and such reported authorities as In re Keever (1967 1 Ch. P. 182), where a lien was hold to have come Into existence before any receiving order was made. He concluded by saying that "On the principles followed and applied in all the cases, the non-existence of possession of goods before the appointment of a Receiver is, in my Judgment, fatal to reliance upon a lien, dependant upon such possession, even though the extent of such a lien had It arisen, would have been greatly enlarged beyond that available at common law by reason of a pre-appointment contract between the Company and the party seeking to rely upon the lien against the Receiver".
The Judgment turned, accordingly, solely upon timing, Mr. Justice Mocatta regarding "the contractual right to exercise a general lien on coming into possession of goods in futuro"as having merely what ho described as an "inchoato character"' the realisation of which was defeated by the defendant's appointment as Receiver before the plaintiffs over gained physical possession.
The zeal of counsel, to whom the court is greatly indebted, led them to cite for our consideration some thirty-two reported decisions. At times we seemed in danger of never emerging from the thicket of authorities. And, when the respondent's counsel dilated upon the consternation which would be caused were we to reverse the trial judge, it seemed almost preferable never to emerge from its umbrageous depths. But emerge we must, and describe what we at least think we saw within, and what in the and it all seems to come to. That I now proceed to do.
I. The Company and its Receiver.
The debenture deed of February 5th, 1970, created a floating charge on certain property of the Company, It allowed the Company to deal with its assetts in the ordinary course of business until the Company became wound up or stopped business or, as here, a Receiver was appointed at the Instance of the debenture holders. It gave a licence to the Company to carry on its...
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