Hellyer v Sheriff of Yorkshire
| Jurisdiction | England & Wales |
| Judge | Lord Justice RUSSELL,Lord Justice BUCKLEY,Lord Justice LAWTON |
| Judgment Date | 27 March 1974 |
| Judgment citation (vLex) | [1974] EWCA Civ J0327-7 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 March 1974 |
[1974] EWCA Civ J0327-7
In The Supreme Court of Judicature
Court of Appeal
Civil Division
On appeal from Order of Vice-Chancellor Blackett-Ord, Leeds.
Lord Justice Russell,
Lord Justice Buckley and
Lord Justice Lawton
In the Matter of E.H. CLAY & COMPANY LIMITED
and:
In the Matter of the Companies Act, 1946.
Mr BRIAN PARKER (instructed by Messrs Grobel, Willey, Hargrave & Co., Agents for Messrs Willy, Hargrave & Co., Leeds) appeared on behalf of the Appellant (First Respondent).
Mr E.W. HAMILTON (instructed by Messrs Saffman & Co., Leeds) appeared on behalf of the Applicants (Liquidators).
The point in this appeal is a short one. A company sailed Union Rubber Limited on the 11th November, 1968, obtained judgment in the High Court in default of appearance against Clay Limited, the company with which we are concerned, for a sum of some £580, and a writ of fieri facias was issued on the same day. The Under-sheriffs for Yorkshire, on the 12th November, issued the relevant warrant to the Sheriff's officer at Dewsbury, a Mr R.B. Holroyd. The Sheriff's officer, either personally or through an assistant (who was I think his son), took possession of some goods the property of the company; and on the 7th and 14th December, respectively, he received sums totalling about £630 which were paid to avoid sale of the goods that were seized.
Now, under Section 326, sub-section (2), of the Companies Act, 1948, it is provided that "the Sheriff shall deduct the costs of the execution from the proceeds of the sale or the money paid and retain the balance for fourteen days, and if within that time notice is served on him … of a meeting having been called at which there is to be proposed a resolution for the voluntary winding-up of the company and an order is made or resolution passed, as the case may be, for the winding-up of the company, the Sheriff shall pay the balance to the liquidator, who shall be entitled to retain it as against the execution creditor". There is involved in that, that if an appropriate notice is not given in the appropriate manner within the fourteen days, the Sheriff is entitled and indeed obliged to pay over to the judgment creditor — in this case Union Rubber — the amount of the judgment debt; and this in fact was done.
Returning to Section 326, sub-section (4) provides that in that section the expression "Sheriff" includes any officercharged with the execution of a writ or other process. I pause there to say that it has been made plain on authority (and it appears also from the relevant Winding-up Rule) that "any officer charged with the execution of a writ or other process" is intended to cover persons who are in the equivalent situation, so far as execution is concerned, of the Sheriff in respect of Courts other than the High Court.
I turn to Rule 43 of the Winding-up Rules, which says that "For the purposes of Section 326 of the Act, a notice that a meeting has been called at which there is to be proposed a resolution for the voluntary winding-up of the company" — I am leaving out presently irrelevant provisions — "shall be in writing and shall be addressed, where the execution is in respect of a judgment of the High Court, to the Sheriff, and in any other case, to the officer charged with the execution, and may be served by being delivered by hand or by registered post, in the case of a notice to a Sheriff, at the office of the Under-sheriff, and in any other case, at the office of the officer charged with the execution ".
Now, in this case a notice that a relevant meeting had been called wad sent to the office or the Sheriff's officer, Mr Holroyd, at Dewsbury, and was not sent to the Under-sheriff's office at York. The learned Judge decided that the word "Sheriff" in Rule 4-3 includes officers of the Sheriff who are his agents for the purpose of carrying out the duties which he deputes to them and that those include, in a case of this kind, the receipt of such a notice as this. The question is whether the Judge was right in that conclusion.
I observe at once that, whereas the Under-sheriff or Under-Sheriffs are generally in the position under which theyare required to act as (so to speak) pro Sheriffs, in the case of a Sheriff's officer he acts, and acts only, on the basis of individual warrants to carry out execution, such as the warrant which was issued by the Under-sheriff to Mr Holroyd in the present case. She Sheriff's officer is, so to speak, a pieceworker.
Now, the matter of this kind of notice and on whom it shall be served has been considered in other cases, the first of which, to which our attention was drawn, was Ex parte Warren, in 15 Queen's Bench Division at page 48, which is a case in this Court. The details of that case are not of importance. One Hillyer was in the process of carrying out the execution of a writ of fi.fa on behalf of the Sheriffs of London, he being in the situation of a Sheriff's officer. There was also a judgment in the Major's Court of London, the appropriate writ had been issued for execution on that judgment, and in the case of that Court if you are to enforce a judgment by execution, the appropriate officer charged with the execution is not the Sheriff, but the serjeant-at-mace of the Mayor's Court of London. As was the convenient practice, when the serjeant-at-mace proceeded to seek to enforce that judgment, and found Mr Hillyer as the Sheriff's officer in possession, he entrusted him with the execution of the Mayor's Court warrant for that particular judgment. What happened was that the relevant notice (in fact in that case) of a bankruptcy petition — there being parallel provisions in the bankruptcy code to those found now in Section 346 of the...
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