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Moore v Lambeth County Court Registrar (No. 2)

Judgment Weekly Law Reports The Law Reports Cited authorities 8 Cited in 9 Precedent Map Related
Vincent
JurisdictionEngland & Wales
JudgeLORD JUSTICE RUSSELL,LORD JUSTICE SACHS
Judgment Date31 October 1969
Judgment citation (vLex)[1969] EWCA Civ J1031-1
Date31 October 1969
CourtCourt of Appeal (Civil Division)
Categories

[1969] EWCA Civ J1031-1

In The Supreme Court of Judicature

Court of Appeal

On appeal from Southwark County Court

Before:-

Lord Justice Russell and

Lord Justice Sachs

Between:-
George Moore
and
The Registrar of The Lambeth County Court, Major Kennard Scott-Simpson and Howard G. Thomas

The APPELANT (Plaintiff) appeared in person.

Mr M.A.B. BURKE-GAFFNEY (instructed by The Treasury Solicitor) appeared on behalf of the Respondents (Defendants).

LORD JUSTICE RUSSELL
1

The Appellant Plaintiff was tenant of a furnished room at 9 Chestnut Road, S.E.27. The second Defendant was his landlord: the third Defendant was the landlord's solicitor. The landlord obtained judgment in the Lambeth County Court on the 13th December, 1967, for possession (to be given on the 3rd January, 1968) and for recovery of£83 rent and mesne profits (to be paid on the 27th December, 1967) with costs to be taxed on Scale 3.

2

The Appellant complied with no part of this judgment and a warrant issued on the 8th January, 1968, in the form of County Court Form No. 200, with appropriate deletions, requiring the Registrar and bailiffs of the Court forthwith to give possession of the premises to the landlord, and ordering them "forthwith to levy the amount due to the Plaintiff under the said judgment or order, together with the costs of this warrant and costs of executing the same, by distress and sale of the goods and chattels of the Defendant…." The warrant was endorsed with a calculation as follows:

£ s. d
"Amount for which judgment was obtained 83. 0. 0.
Subsequent costs to be taxed
Fee for issuing this warrant 4. 0. 0.
Solicitor's Costs of Issue 5. 0.
Total amount to be levied £87. 5. 0."
3

The Appellant applied for a stay of execution of the warrant. On the 9th February, 1968, the Registrar ordered that the "landlord be at liberty to enforce the Warrant of Possession in this action" and further ordered "that the Warrant of Execution as to Money Judgment be suspended so long as the Defendant do pay to the Registrar of this Court £2 every calendar month commencing 9th March, 1968". The Plaintiff's landlord's costs of the application were assessed at £1. On the 16th February, 1968, the Judge refused an appeal by the Appellant and ordered him to pay a further sum of £1 for the landlord's costs into Court by 1st March, 1968.

4

As a consequence of the Registrar's order the warrant was endorsed "Warrant of possession to be enforced. Suspend warrant as of money claim at £2 a month. Plaintiff's costs £1. (See inset)". The inset was the box containing thecalculation totalling £87. 5. 0. which included the warrant costs totalling £4. 5. 0.

5

Meanwhile, the Appellant, on the 13th February, 1968, paid £2 into Court in early compliance with the condition of suspension: and, indeed, paid another £2 on the 5th March.

6

On the 19th February, 1968, the Court bailiff, armed with this warrant, attended the premises with the landlord and a clerk from his solicitors and delivered possession to the landlord. At the same time the bailiff seized property of the Appellant consisting of a radiogram, 50 records in two containers and a coffee table.

7

The Appellant finally recovered possession of these articles on the 27th April, 1968. He then sued the Registrar (the first Defendant) and the two other Defendants in the Southwark County Court for damages in respect of their conduct in relation to his chattels, on the ground of wrongful execution and wrongful detention. The County Court Judge, after a long hearing, gave judgment in favour of the Appellant for £25 in respect of wrongful execution against the Registrar, with costs, and for £10 against the landlord, with costs, and dismissed the action against the landlord's solicitor with such costs as were additionally caused by his being made a defendant.

8

The Appellant appeals from that decision, asserting (1) that damages for the wrongful execution should have been exemplary and were in any event quite inadequate, (2) that the damages under this head should have been ordered against the landlord and his solicitor also, (3) that the sum of £10 damages against the landlord was quite inadequate, (4) that the damages under that last head should have been ordered against the landlord's solicitor also. I observe that the 2nd and 4th of those contentions can, as a practical matter, relate only to the order as to costs in favour of the landlord's solicitor. The Appellant also contended that the Judge should not haverejected his claim that he was entitled to further damages for damage said to have been done to his radiogram when in the custody of the Defendants.

9

There were two other matters in his appeal which I will dispose of at once. He objected to the way the Registrar dealt with the matter of taxation of his costs below: but any such objection must be made to the Judge and not to us. Secondly, he sought to raise a point on an interlocutory order in respect of which leave to appeal out of time had already been refused by this Court, and cannot now be raised.

10

The Registrar cross-appealed as to the Judgment for £25, asserting that the action did not lie in the circumstances, but it is convenient (inasmuch as I think the action does lie) to deal first with the Appellant's appeal.

11

The main ground for asserting that exemplary or punitive damages should have been awarded against the Registrar for the bailiff's conduct was that the seizure was not merely wrongful but malicious. But here there are two difficulties in the Appellant's way, both, to my mind, insuperable. On the 26th July, 1968, an order was made by consent striking out the word "maliciously" in the particulars of claim and substituting the word "wrongfully". Further, the Judge, having heard the evidence of the bailiff as well as that of the Defendants, came to a clear conclusion that whatever wrong had been done in the seizure had been by mistake and not maliciously, and there is nothing in the circumstances of the case which would entitle this Court to draw the inference that the Judge had misled himself in this regard. The Appellant is convinced that all were minded to punish and humiliate him in a malicious and high-handed way: so much so that he argued that this was demonstrated by the fact that the Defendants contended that the seizure was not wrongful in law; an obvious fallacy.

12

What then of quantum as to the £25? It seems to me that the learned Judge considered the matter properly in point of principle in a careful reserved judgment, and awarded a round sum as overall compensatory damages, hearing in mind injury to the Appellant's feelings and deprivation of his goods from the 19th February to the 11th March (when the Registrar released them from execution), those goods including a radiogram and records from which he was accustomed to draw musical solace as well as instruction in the German language on records drawn from the local library. Some phrases were picked out from the judgment by the Appellant for criticism, which I need not detail here: but neither that criticism nor the size of the sum persuade me that this is an award with the quantum of which this Court would be justified in interfering.

13

The suggestion that the judgment for £25 should go against the landlord and his solicitor as well as the Registrar is, in my view, ill-founded. It is based on the fact that they were present at the levy on the goods, and by reference to cases of wrongful distress for rent. But mere presence does not bring liability: see ( Williams v. Williams 1937 2 All England Reports, 559). Their presence was referable to the delivery of possession of the property. There was no evidence that they had any part in the levy on the goods. The responsibility of a landlord for wrongful distress for rent is based on a relationship with the person distraining that does not obtain in a case such as this.

14

I turn next to the damages of £10 awarded for detention of the goods by the landlord from the time when the Registrar released them from the custody of the law. The goods while still under levy had, with the assent of the bailiff been stored in other premises nearby of the landlord. On the 11th March, 1968, the Registrar wrote to the landlord's solicitors, authorising the return of the goods to the Appellant, having formed the view that the execution had beensatisfied by the payments made by the Appellant into Court. An arrangement was made to return them on the 16th March, but this arrangement was cancelled at...

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