Home Information Cases Oyston v (1) Asker (2) SHCE Limited (2018)

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Oyston v (1) Asker (2) SHCE Limited (2018)

Summary

An interim injunction preventing a High Court enforcement officer from entering two residential premises to take goods to satisfy a large judgment debt was continued where there was a serious issue to be tried as to the proper construction of the Tribunals, Courts and Enforcement Act 2007 Sch.12 and whether under a warrant issued under para.15, force could be used to enter the properties.

Facts

The claimant judgment debtor applied for the continuation of an interim injunction restraining the first defendant enforcement officer from entering certain properties and taking goods without authority.

A writ of control had been issued in respect of a £32 million judgment against the claimant. The writ identified the judgment date incorrectly and made no reference to a partial payment which had been made. A day later two notices of enforcement were sent to the claimant at two residential addresses, an apartment and a house, which noted the correct outstanding amount. Nearly two weeks later three enforcement officers arrived at the apartment and were denied entry. They obtained a High Court warrant under the Tribunals, Courts and Enforcement Act 2007 Sch.12 Pt 2 para.15 authorising entry of specified premises under certain conditions, but did not continue to try to access the apartment and instead went to the house and entered that by force. The claimant applied for the injunction arguing that while the wrong judgment date on the writ was not necessarily fatal, the figure of £32 million on the writ was inaccurate and it was therefore flawed and a nullity. The first defendant accepted that there was an issue in respect of the figure on the writ of control, but contended that it was not a serious issue to be tried as the notices of enforcement made clear how much credit had been received. The claimant's main issue was the first defendant's right to use force to gain access to his property pursuant to the warrant. He argued that under the Taking Control of Goods Regulations 2013 reg.20, warrants issued under Tribunals, Courts and Enforcement Act 2007 Sch.12 Pt 2 para.15 entitled the first defendant to gain access by a usual entry or means, and made no reference to the use of force. He submitted that, according to Sch.12 paras 17, 18 and 18A reasonable force could be used to enter only if all the conditions set out were met, including that the premises were used for trade or business and that the writ had been issued under the Magistrates' Courts Act 1980 s.76(1). The first defendant argued that that was a misreading of para.18, its conditions should be read separately, and only one had to be met. The interim injunction was granted on the basis of the disputed construction of para.18 and/or para.15.

Held

The judgment debt - The court accepted that there had been a judgment debt of a liquidated sum totalling £32 million, payable by a certain date, which had not been met. The writ of control had not been inaccurate save for the date of the judgment, but it had not reflected the payment which had been made by the time the writ had been issued and that seemed to be a potential issue. A mistake on the face of the writ which affected its validity was a serious issue to be tried.

Construction of Sch.12 - The instant court did not have to decide the proper construction of the relevant paragraphs. There was a serious issue to be tried in respect of provisions which allowed entry to homes and business and involved rights under the ECHR art.8.

Damages as an adequate remedy - The interim injunction had been granted on the basis that the status quo should prevail. The claimant had promised to obtain finance, but had not done so and had failed to cede assets such as a valuable painting and luxury cars. The judgment creditors were prejudiced by their inability to enforce the judgment, but a freezing order had limited the risk of dissipation of assets. The first defendant would be prejudiced by a delay in receiving his fees. Damages would not be an adequate remedy for the claimant. If his assets were seized and sold and he then succeeded at trial, he would be unable to retrieve expensive and unique items. The balance of convenience lay with continuing the injunction.

Application granted

Queen's Bench Division
Melissa Clarke
Judgment date
13 March 2018
References