Thomas Banks Hamilton v Secretary of State for Business, Energy and Industrial Strategy
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lane |
| Judgment Date | 06 October 2021 |
| Neutral Citation | [2021] EWHC 2647 (QB) |
| Docket Number | Case Nos: QA-2020-000162 and QA-2020-000227 |
| Year | 2021 |
| Court | Queen's Bench Division |
[2021] EWHC 2647 (QB)
Mr Justice Lane
Case Nos: QA-2020-000162 and QA-2020-000227
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The applicant appeared in person
Mr Simon Hunter (instructed by Shepherd & Wedderburn LLP) for the first respondent
Mr Chris Royle (instructed by Feltons Law) for the second respondent
Hearing date: 22 July 2021
APPROVED JUDGMENT
At the heart of this case is the vessel MV Samara, currently moored in St Katherine Dock, London. The second respondent is a High Court Enforcement Agent, authorised by Clare Sandbrook, a High Court Enforcement Officer, to proceed to sell the MV Samara, so that the first respondent may receive the relevant proceeds of sale in order to satisfy a debt owed to him by the applicant, Mr Hamilton.
THE LITIGATION
The first respondent obtained a directors' disqualification order against Mr Hamilton in Scotland on 24 April 2015. The first respondent was awarded two decrees of costs, amounting to a total of £20,356.04. Mr Hamilton sought to challenge the decrees of costs, but this challenge was refused by the Court of Session. Mr Hamilton's application for permission to appeal to the Supreme Court was refused on 21 April 2017.
The respondent then sought to enforce the decrees of costs. In February 2019, the decrees were registered in England and Wales. The first respondent then instructed the High Court Enforcement Officer to obtain and enforce two writs of control, covering the total amount of the debt.
Taking control of the MV Samara was considered necessary because Mr Hamilton was regarded as having ownership of the vessel, with the result that its sale would enable the first respondent to obtain from Mr Hamilton all or part of the sum owed by him to the first respondent as a result of the decrees of costs.
In 2019, a Mr Newett gave notice under CPR 85.4 that the MV Samara was his and not Mr Hamilton's. On 22 May 2020, Master Cook dismissed the application, following a remote hearing at which Mr Newett appeared in person. Master Cook found that, at the time of what was said to be a loan agreement between Mr Hamilton and Mr Newett, with the MV Samara standing as security, it was more likely than not that Mr Hamilton did not have any interest in the vessel which could be granted as security for a loan. Master Cook further held that, if that were not right, then the agreement did not have the effect of conferring any interest in the vessel on Mr Newett.
In his order, sealed on 26 May 2020, Master Cook, besides dismissing Mr Newett's application, ordered him to pay the cost of the application in the sum of £12,106.89.
Paragraph 2 of Master Cook's order reads:-
“2. The High Court Enforcement Officer do sell MV Samara, pursuant to paragraph 60 of Schedule 12 [to the Tribunals], Courts and Enforcement Act 2007.”
On 31 May 2020, Mr Hamilton applied to have the order of Master Cook set aside. The application contended that Mr Hamilton had unsuccessfully applied for an adjournment of the hearing on 22 May, which was refused on the basis that his position was not relevant to the question of whether Mr Newett had an interest in the MV Samara. Mr Hamilton's application alleged that he had in fact had no knowledge of the hearing. He submitted that the Scottish judgments, leading to the enforcement proceedings in England, had been obtained fraudulently; that there was “subsidiary ownership of Jacqueline Hamilton to MV Samara”; and there was “supporting evidence” regarding the loan agreement with Mr Newett and a loan agreement relating to Mr Newett.
On 2 June 2020, Master Cook dismissed Mr Hamilton's application “as being totally without merit”. Master Cook pointed out that the judgment debtor, Mr Hamilton, was not a party to Mr Newett's application under CPR 85.4 and that Mr Newett's previous applications for a stay of enforcement had been refused. The court had made previous directions in relation to the evidence to be filed by Mr Newett, as a result of which all evidence to be relied on at the hearing should have been served by 20 December 2019. Mr Newett had submitted evidence to the court and attended the hearing on 22 May 2020, when he made submissions to the Master. Mr Newett had not requested an adjournment or sought to put in further evidence. Mr Hamilton had been informed that he could attend the video hearing of Mr Newett's application but did not do so.
The application to set aside bears the reference QA-2020-000162.
Mr Hamilton applied for permission to appeal against the order of Master Cook of 22 May 2020. He also applied for permission to appeal against the order of Master Cook of 2 June 2020, in which Master Cook refused to set aside his order and judgment of 22 May 2020.
On 22 January 2021, Stewart J struck out Mr Hamilton's appeal against the order of Master Cook of 22 May 2020 (QA-2020-000227). On 26 March 2021, Stewart J reinstated Mr Hamilton's appeal in QA-2020-000162, which had earlier been struck out for failure to comply with an order of 13 November 2020. As for appeal QA-2020-000227, Stewart J ordered that, if Mr Hamilton was applying for a set aside the strike out in that appeal, he was required to file an application notice, providing reasons in support. If Mr Hamilton did so, then the combined matters would be listed for hearing before a judge on the first available date after 23 April 2021, with an estimated time of two hours.
Following receipt of Stewart J's order of 26 March 2021, Mr Hamilton filed an application notice in respect of QA-2020-000227. Unfortunately, however, some of the parties misunderstood the effect of Stewart J's order, a matter that was aggravated by the hearing being listed only for 30 minutes, rather than the two hours envisaged by Stewart J.
Following that hearing, which came before me on 16 June 2021, I ordered that there should be a hearing on 22 July 2021, at which the court:-
(a) Would consider Mr Hamilton's application to set aside the strike out order of Stewart J of 22 January 2021 in QA-2020-000227;
(b) If that application to set aside was granted, would consider Mr Hamilton's application for permission to appeal the order and judgment of Master Cook in QA-2020-000227; and
(c) Would consider Mr Hamilton's application for permission to appeal the order of Master Cook of 2 June 2020 dismissing (as totally without merit) Mr Hamilton's application to have Master Cook's order and judgment of 22 May 2020 set aside (QA-2020-000162).
Directions were made for the filing and service of written submissions and other materials on which the parties respectively intended to rely at the hearing. To that end, the solicitors for the first respondent helpfully collated relevant materials in three bundles.
THE CENTRAL ISSUE IDENTIFIED
Mr Royle produced written submissions on behalf of the second respondent, followed by a supplementary skeleton argument of 20 July 2021. In accordance with his overriding duty to the court, Mr Royle, in those documents, raised for the first time a matter of such significance that the majority of the hearing on 22 July was devoted to it; and which requires to be addressed at this point of the judgment. The court is extremely grateful to Mr Royle for the thoroughness and clarity of his submissions on this issue.
The short point is that, on the face of the relevant legislation, the second respondent is not empowered to sell the MV Samara. The vessel has been statutorily abandoned, such that the enforcement powers conferred by the Tribunals, Courts and Enforcement Act 2007 have ceased to be exercisable. Mr Royle submits that such a result is, in effect, so problematic (indeed, absurd) that this court should construe the relevant legislation in such a way as to avoid it. Any such construction would, however, in practice involve the judicial insertion of provisions into the legislation.
LEGISLATIVE FRAMEWORK
Section 62(1) of the 2007 Act provides that Schedule 12 to the Act applies where an enactment, writ or warrant confers power to use the procedure in that Schedule; that is to say, taking control of goods and selling them to recover a sum of money. The power conferred by a writ or warrant of control is, by section 62(2), exercisable only by using the Schedule 12 procedure. What were writs of fieri facias (except for an ecclesiastical form, not here relevant) were, by section 62(4), renamed writs of control. The same subsection re-named warrants of execution as warrants of control. Section 63 makes provision for enforcement agents.
Paragraph 1 of Schedule 12 provides that using the procedure in that Schedule to recover a sum “means taking control of goods and selling them to recover that sum in accordance with this schedule and regulations under it”. The power to use the procedure to recover a particular sum is called an “enforcement power”. By paragraph 2, only an enforcement agent may take control of goods and sell them under an enforcement power.
Paragraph 3 of Schedule 12 contains a number of definitions. Amongst these are “goods”, which means “property of any description, other than land”; “interest”, which means “a beneficial interest”; and “premises” which means any place, including a vessel.
Paragraph 8 of Schedule 12 provides that an enforcement agent may not take control of goods after the prescribed period, which may be prescribed by reference to the date of notice of enforcement or of any writ or warrant conferring the enforcement power or any other date.
Paragraph 10 of Schedule 12 provides that an enforcement agent...
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