Glatt v Sinclair (the former court appointed receiver)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kenneth Parker |
| Judgment Date | 01 December 2010 |
| Neutral Citation | [2010] EWHC 3069 (Admin) |
| Date | 01 December 2010 |
| Docket Number | Case No: CJA/32/1997 |
| Court | Queen's Bench Division (Administrative Court) |
[2010] EWHC 3069 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Mr Justice Kenneth Parker
Case No: CJA/32/1997
Mr Geoffrey Zelin (instructed by Edward Hayes LLP) for the Applicant
Mr Andrew Mitchell QC (instructed by SNR Denton UK PLC) for the Respondent
Hearing date: 4 November 2010
Mr Justice Kenneth Parker:
On 4 November 2010 I held that the Applicant, Louis Glatt, had no realistic prospect of success in bringing an action against the Respondent, Heath Sinclair. Heath Sinclair is the former receiver of the estate of Louis Glatt, having been appointed under the provisions of the Criminal Justice Act 1988. The appointment was terminated following the quashing of the confiscation order.
I refer to my judgment of 4 November 2010 for the full reasons why I concluded that the Applicant had no realistic prospect of success in the action that he had already commenced against the Respondent alleging breach of duty during the course of the receivership.
The Respondent now applies for his costs of that application, such costs to be recovered from the assets falling within the terms of the receivership which are subject to a lien in his favour. Both parties have submitted written submissions on this application for costs.
The short point on this application for costs is whether the costs of successfully resisting the Applicant's application for permission can properly be taken from the assets over which the relevant lien extends.
The entitlement to costs from the estate derives from paragraph 5 of the receivership order made by Mr Justice Morrison under the provisions of the Criminal Justice Act 1988 on 15 February 2001. The relevant part of that paragraph reads as follows:
“The costs of the receivership shall be paid out of the assets received or managed by the receivers in priority to any other payments… but if no or insufficient assets are so received or so managed the costs of the receivership to the extent of the deficiency should be paid by the Commissioners of Customs and Excise.”
There is no dispute between the parties that the terms of paragraph 5 which I have cited fell properly within the powers of the Court under the Criminal Justice Act 1988. A succinct and authoritative statement of the law in this area was given by the Court of Appeal in Glatt v Sinclair [2009] EWCA Civ 176 by Longmore LJ:
“It is now settled that such a receiver, like a receiver at common law, is entitled to recover his remuneration, costs and expenses from the assets which he has been appointed to receive (“the receivership assets”). That is so whether or not he ought to have been appointed in the first place or the order appointing him has been discharged, see Mellor v Mellor [1992] 1 WLR 517. Even if the defendant, whose assets have been caught by the order appointing the receiver, is subsequently acquitted or has his conviction quashed, the receivership assets must bear the costs of the receivership; this is also the position if, as in the present case, a confiscation order is made but subsequently quashed, Hughes v Customs and Excise Commissioners [2003] 1 WLR 177. Even if the receiver carries on his receivership unnecessarily and should have agreed that his receivership should have been discharged at a time before a court application is made to terminate his receivership, the receivership assets bear those costs reasonably incurred up to the date he is actually discharged. Capewell v Revenue and Customs Commissioners [2007] 1 WLR 386.”
In Glatt v Sinclair the Court of Appeal held that the former receiver held a lien over the estate that was under his control even though some of the property was merely held by Mr Glatt because he held a bare legal interest in the material. Mr Zelin, on behalf of Mr Glatt, contends that the costs of the present application were not costs of the receivership within the terms of paragraph 5 of the order made by Mr Justice Morrison. He says that the receivership was discharged on 25 April 2006, two years before the claim form was issued. The application to which the costs relate was not launched until 5 September 2008. The costs of the application were incurred long after the receivership was...
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Re Glatt
... ... [2013] EWCA Civ 241 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH ... Appellants and Nigel Heath Sinclair Respondent ... Mr. Kennedy Talbot ... Can a receiver who was appointed by order of the court under the Criminal ... application for an order for a determination of the former receiver's remuneration, expenses and disbursements be ... ...