Newman v Modern Bookbinders Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SEDLEY |
| Judgment Date | 20 January 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0120-5 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CCRTF 1999/0650/B2 |
| Date | 20 January 2000 |
[2000] EWCA Civ J0120-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Mr. JUSTICE JOHNSON
SITTING AT MILTON KEYNES COUNTY COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Brooke
Lord Justice Robert Walker and
Lord Justice Sedley
Case No: CCRTF 1999/0650/B2
Miss Claire Miskin (instructed by Jay Benning & Peltz for theAppellant)
Mr. Paul Kilcoyne [Miss A Issa 20.1.2000] (appeared for LCD Intervening)
Thursday, 20th January 2000
This is an appeal, by permission of the full court, against the committal of Christopher Newman to prison for one month by Johnson J sitting at Milton Keynes County Court on 15 June 1999. When it gave permission to appeal on 25 June 1999 this court admitted the appellant to bail with a condition of surrender on the day set for hearing. At the conclusion of the hearing on 3 December 1999 the court allowed the appeal, reserving its reasons.
The law
Section 92 of the County Courts Act 1984 provides:
Penalty for rescuing goods seized
(1) If any person rescues or attempts to rescue any goods seized in execution under process of a county court, he shall be liable
(a) on summary conviction, to imprisonment for a term not exceeding one month or to a fine of an amount not exceeding level 4 on the standard scale, or both; or
(b) on an order made by a judge in that behalf, to be committed for a specified period not exceeding one month to prison or to a fine of an amount not exceeding level 4 on the standard scale, or to be so committed and to such a fine,
and a bailiff of the court may take the offender into custody, with or without warrant, and bring him before the judge.
(2) The judge may at any time revoke an order committing a person to prison under this section and, if he is already in custody, order his discharge.
Section 101 provides:
Interpleader by district judge
(1) If a claim is made to or in respect of any goods seized in execution under process of a county court, or in respect of the proceeds or value of any such goods, the district judge may, as well before as after any action brought against him, issue a summons calling before the court the party at whose instance the process issued and the party making the claim.
(2) Upon the issue of the summons, any action brought in any county court or other court in respect of the claim or of any damage arising out of the execution of the warrant shall be stayed.
(3) On the hearing of the summons, the judge shall adjudicate upon the claim, and shall also adjudicate between the parties or either of them and the district judge upon any claim to damages arising or capable of arising out of the execution of the warrant by the district judge, and shall make such order in respect of any such claim and the costs of the proceedings as he thinks fit.
Section 29 of the Legal Aid Act 1988 provides:
Representation in contempt proceedings
(1) This section applies to any proceedings where a person is liable to be committed or fined �
(a) by a magistrates' court under section 12 of the Contempt of Court Act 1981;
(b) by a county court under section 14, 92 or 118 of the County Courts Act 1984;
(c) by any superior court for contempt in the face of that or any other court;
and in this Act "proceedings for contempt" means so much of any proceedings as relates to dealing with a person as mentioned in paragraph (a), (b) or (c) above.
(2) In any proceedings for contempt against a person the court may order that he be granted representation under this section for the purposes of the proceedings if it appears to the court to be desirable to do so in the interests of justice.
History
Mr Newman ran a small publishing business, Mantella Publishing, with his partner Jan Burgess and her husband Tom Burgess. The enterprise was dependant, as practically all such businesses now are, on computers. They published a magazine about reptiles: one guesses that it had a modest circulation, but it had been going since 1993. Mr Newman is dyslexic � a characteristic which the bailiff understandably enough considered unusual in a publisher. Mr Burgess is a computer specialist: his proper job is as a senior systems engineer with a national company; but his written evidence before this court is that two of Mantella's three computers, the Mesh and the Olivetti, had been bought by him and were still being paid for by him, bar some �200 contributed by Mr Newman. The third, he deposes, had no name because he had built it himself.
Mr Newman found himself sued to judgment in the Aylesbury County Court for a debt of �470.31. His attempts to have the judgment set aside, which there is no need to detail, had failed by October 1998. The judgment creditors, Modern Bookbinders Ltd, finally instructed the court bailiff to levy execution on his goods.
There is substantial, though not complete, agreement between Mr Newman and James Dickins, the court bailiff, about what then happened. The warrant of execution was issued on 8 February 1999. Ten days later Mr Dickins made a first visit to the house at 191 Meadowcroft, Aylesbury, where Mr Newman lived and had his publishing office. When on 23 February he finally found Mr Newman at home, the latter told him that he did not owe the money. Mr Dickins gave him some advice about applying to set the judgment aside. There followed a series of further visits until on 23 March Mr Newman's renewed application was dismissed with a bar on the making of any more applications without leave.
Six days later Mr Dickins came round again. He gave Mr Newman the option of having his goods taken there and then or signing a walking possession form which would leave them on the premises for the time being. Mr Newman responded that he did not own the computers. This, Mr Dickins credibly deposes, "is not an uncommon statement for any defendant to make to a bailiff and I confirmed to him that if this was the case the third party would have to take the necessary steps to prove that they owned the goods, since I was entitled to levy on those which appeared to be the defendant's, as these items did."
The material part of the form, N. 42, begins: "Please do not take my goods listed here�". The bailiff has listed the Olivetti computer, the Mesh computer and "One computer no name", each with its screen and keyboard, together with a Brother fax machine. The form goes on to say:
"I agree that until payment is made or the warrant withdrawn I will:
* not remove or damage the goods or allow anyone else to do so;
* show this form to anyone who calls and tries to take these goods and I will tell you that they called; and
* allow you to re-enter the premises at any time (and as often as you want) to see the goods or to complete the enforcement of this warrant."
Mr Newman says that, being (as he told the bailiff) dyslexic, he did not realise that what he was signing included an admission that the goods were his. In the event it may not matter, since it is common ground that he had already told Mr Dickins that they were not. For the rest, it is clear that Mr Dickins fairly described the effect of the agreement to Mr Newman.
On 3 June Mr Dickins returned with a colleague to take the computers. Mr Newman told him again that they were not his. He also says, and Mr Dickins does not contest it, that he told the bailiff that the data they held were needed to run the business. Later that day the bailiffs returned to find that Mr Newman had removed the computers from the office. They had simply been moved, according to Mr Newman, into the adjacent living room; but Mr Newman admits that he did not volunteer this when asked, and Mr Dickins says that he asserted that Tom Burgess had taken them. Whichever it was, this was a breach of the walking possession agreement and a contempt of court.
Next day Mr Newman got Mr Burgess to provide a statement and some documentation showing that the computers were his (or more accurately in the case of two of them, a finance company's) and faxed these to Mr Dickins. The statement reads:
" Declaration of computers and accessories.
I hereby certify that the following computers and peripherals are owned solely by myself and currently on loan to Mrs J Burgess at 191 Meadowcroft, Aylesbury, Buckinghamshire.
Two of these machines (Mesh and Olivetti) were purchased on credit and are still being paid for by myself. Third machine has been built by myself, invoices for components available
T.A.Burgess
(All software on all PCs is owned and registered to myself)"
Annexed were two apparently authentic copy documents, one a credit agreement for a loan of �4,500 dated March 1995, the other a credit sale agreement dated February 1998 for a multimedia PC at a price of �1,750.13 plus interest. But when Mr Newman followed up by telephone Mr Dickins said the documents proved nothing. Mr Dickins explains that he had consulted the court manager and they had agreed that the documents did not amount to an interpleader. The court manager for his part deposes that he showed the documents to District Judge Rhodes, who "directed that the material showed insufficient proof of ownership to commence the interpleader procedure". We have no statement from the District Judge himself.
There followed a further conversation on 7 th June which amounted to a stand-off, Mr Newman refusing now to tell the bailiff where the computers were. Five days later, apparently without telling Mr Newman, Mr Burgess let himself into the house to upgrade the Mesh computer, but finding that he had left his toolbox at home, took the computer away...
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