Gooch v Ewing
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON,LORD JUSTICE SLADE,LORD JUSTICE DILLON |
| Judgment Date | 03 October 1985 |
| Judgment citation (vLex) | [1985] EWCA Civ J1003-4 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 85/0545 |
| Date | 03 October 1985 |
[1985] EWCA Civ J1003-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(SIR NEIL LAWSON)
Royal Courts of Justice
Lord Justice Lawton
Lord Justice Slade
Lord Justice Dillon
85/0545
and
MR. P. W. BIRTS (instructed by The Treasury Solicitor) appeared for the Appellant (Judgment Creditor).
THE RESPONDENT (Judgment Debtor) appeared in person.
MR. D. E. GRIFFITH JONES (instructed by Messrs. Palmer Cowen) appeared for the Garnishee.
On 20th May 1981 the respondent, Terence Patrick Ewing, was convicted at the Central Criminal Court on 24 counts of an indictment which charged him with theft, forgery of valuable securities, forgery of documents, and uttering such documents. He was sentenced to a total of seven years imprisonment and ordered to pay £11,700 as compensation and £5,000 as costs. He appealed against his convictions to the Court of Appeal (Criminal Division) and succeeded in having three counts quashed and a consequential reduction of the amount of compensation to £7,384.85. The order as to costs was not varied. On 21st December 1982 the court said that the appeal would be allowed in part and that it would give its reasons later. This decision of the Court of Appeal was notified by the Central Criminal Court to the Chief Clerk ("the Clerk") at the Highbury Corner Magistrates Court, who is the appellant. That court, pursuant to section 31 and Schedule 9 to the Administration of Justice Act 1970 (as amended) had the duty to enforce the payment of the orders for costs and compensation. The Court of Appeal (Criminal Division) gave its reasons for judgment on 11th March 1983, and on 29th June 1983 it certified that the appeal raised one point of law of general public importance but refused the respondent leave to appeal to the House of Lords. Thereupon the respondent petitioned the House of Lords for leave to appeal. The fact that he had so petitioned was not notified to the Magistrates Court.
The respondent's petition to the House of Lords had the effect of suspending the operation of the order made for the payment of compensation but not of that for the payment of costs: see section 42 of the Criminal Appeal Act 1968 and section 36(1) of the Powers of Criminal Courts Act 1973. His petition was dismissed by the House of Lords on 24th October 1983. Thereafter, no part of the orders made by the Court of Appeal (Criminal Division) remained suspended.
On 12th August 1983 the respondent was released from prison. Not knowing of the respondent's petition to the House of Lords, on 31st August 1983 the Magistrates' Court issued warrants, pursuant to section 83 of the Magistrates' Court Act 1980, for the arrest of the respondent to enable an enquiry to be held as to whether he had sufficient means to pay the sums adjudged to be paid by him as a consequence of his convictions. The warrants were executed on 12th September 1983 and the respondent was the same day brought before the Metropolitan Stipendiary Magistrate at that court. The respondent told him that he had petitioned the House of Lords for leave to appeal. The magistrate wanted that statement verified. The duty solicitor at the court was asked to try to verify it. He was unable to do so. The magistrate decided to continue with the inquiry as to means. In the course of it the respondent revealed that he had an account with the Allied Irish Bank in the name of Day and that it was credited with enough money to satisfy the orders for costs and compensation. The magistrate decided to make an order against the respondent pursuant to section 87 of the Magistrates' Courts Act 1980. Two questions arise on the form of that order: first, had the magistrate jurisdiction to make it, having regard to the fact that the respondent had petitioned the House of Lords for leave to appeal against his convictions; and, secondly, what is the proper construction of the order.
After setting out the date, identifying the respondent and giving particulars of his convictions, the order went on as follows:
"Ordered to pay:
£7,384.85 compensation
£5,000 costs
This Court being the Court required under section 32(1) of the powers of Criminal Courts Act 1973 to enforce payment of the sum above: and the accused having made default in payment of the amount remaining due:
£12,283.60
This Court having inquired into the accused's means hereby authorises the Clerk of the Court to take the undermentioned proceedings in the High Court for the recovery of the amount remaining due.
Nature of proceedings: Garnishee proceedings to attach the accused's bank balance."
having regard to the respondent's petition to the House of Lords, had the respondent made default in payment of the amount remaining due; the construction issue is whether the order authorised the Clerk to make one attempt or more than one attempt by garnishee proceedings to attach the respondent's bank balance.
The next day, 13th September 1983, the Clerk successfully applied to the High Court for a garnishee order nisi in respect of the sum said to be due from the respondent. On 14th September 1983 it was served on the Allied Irish Bank. On 21st September 1983 the Allied Irish Bank, without waiting for a garnishee order absolute, paid the Clerk the sum of £12,350. Thereupon, by letters dated 5th October 1983, he wrote both to the High Court and to the respondent, telling them what had happened. He asked the High Court to withdraw the garnishee proceedings. On 12th October Master Creightmore, on the application of the respondent, discharged the garnishee order nisi. The respondent has submitted that this order has in law the effect of stopping the Clerk from starting new garnishee proceedings, as he has since done.
On 11th October 1983 the respondent obtained leave from Woolf J. to apply for judicial review to bring up and quash the proceedings which had taken place in the Magistrates Court on 12th September 1983 and all proceedings stemming from them.
Sometime in the autumn of 1983 the respondent issued a writ against the Allied Irish Bank, claiming that they had paid the sum of £12,350 from his account without his authority. He obtained summary judgment against the bank on 18th January 1984. On 24th January 1984 the Clerk intervened in the respondent's judicial review proceedings and obtained from Hodgson J. an injunction restraining the Allied Irish Bank from handling or making any withdrawals from the respondent's bank account which would reduce the amount of that account to less than £12,350. That injunction was continued by Forbes J. on 12th March 1984 and has not been discharged. On 29th February 1984 the Allied Irish Bank issued a writ against the Clerk, claiming the repayment of the sum of £12,350 paid on 21st September 1983 as money paid under a mistake.
On 22nd June 1984 the Divisional Court had before it the respondent's application for judicial review. He now asked for an order of prohibition against the Clerk to prevent any further action against him to recover the sums due under the orders for costs and compensation. The court dismissed all his grounds except the one asking for prohibition and adjourned the hearing generally. This appeal is not against any of the orders made by the Divisional Court: it could not be because, in my judgment, those proceedings were in a criminal cause or matter over which this court has no jurisdiction. At the hearing before the Divisional Court counsel for the Clerk said that his clients would probably repay to the Allied Irish Bank the sum of £12,350 and thereafter start new garnishee proceedings. He did repay the money and applied to the High Court for a garnishee order nisi. Stuart-Smith J. made such an order on 7th July 1984.
On 12th February 1985 Sir Neil Lawson, sitting as a Deputy High Court judge, on the respondent's application discharged the garnishee order nisi on the ground that it had been made without jurisdiction. He added that the enforcement procedure "should be gone through...
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