Glasbrook v David & Vaux [1905] 1 KB 615


Facts: The sheriff of Glamorgan sued the defendants for 22 13/-, the charges had incurred levying execution of a writ issued by the defendants as judgment creditor, a writ later withdrawn at the request of the defendants because of the judgment debtors' bankruptcy. The amount of the plaintiff's charges had been settled by taxation (detailed assessment) at the sum claimed. The defendants nonetheless continued to dispute 19 which had been allowed for possession money (at 51/- for each day). They contended that this was a sum which plaintiff had no right to charge as one man had been left in possession under several writs issued by several creditors.

 

Judgment of Farwell J:

"The question, to my mind, turns simply upon the construction of the rules under the Sheriff's Act 1887. The last clause of the rule provides that, "In every case where an execution is withdrawn, satisfied, or stopped, the fees under this order shall be paid by the person issuing the execution": that is this case. The sheriff seized, and for the purpose of my decision I assume that he seized all the goods once for all. I think that is the fair meaning of the admissions, and I think that is the point the parties having come here to try. There were seven levies altogether, and, the goods having been once seized, there could be no subsequent seizure. The intention of the Act of 1887 was no doubt to enable the sheriff to recover the poundage and his expenses. Although the Act of Parliament uses the word "fees," and, of course, the rule follows it, when you come to look at the details they are the actual expenses: first, of making inquiries; secondly, of seizure; thirdly, of mileage; fourthly, of the man in possession.

The sheriff claims to have payment for the same man in possession from each of the judgment creditors. The result would be that the sheriff would get a very large sum (I am told 120) as possession money. I do not think that can be the true meaning of these rules. I think the proper view is that the sheriff was entitled to have his poundage, and, in addition to that, these fees, which are actual out of pocket expenses, and all of which stand on the same footing.

It has been held that there can be only one fee for seizure and one for mileage. If there can be only one seizure, and one journey to make a seizure, the possession also, so long as there is only one man in possession, must, it seems to me, be treated as a single possession. And I come to that conclusion the more readily because the rule provides that the man is in every case to provide his own board. That looks as if this 5/- a day is meant to keep the sheriff from being out of pocket. In Ex parte Sims James LJ treats possession as being one of the incidental expenses that the Act intended to provide for; and I think this case is indistinguishable in principle from the decision of Vaughan Williams J in In re Wells, ex parte Sheriff of Kent."

I am unable to see any ground for distinguishing between seizure, mileage, and possession. The three really hold together, and I think Wright J. in In re: Morgan took that same view. The result is that, whatever may be the liability of the various judgment creditors to the sheriff so long as he remains unpaid and as to that liability I say nothing - when he has been paid in respect of seizure and mileage and possession by one creditor he cannot recover the same sum from any of the others."

 

Comment

This case is a simple confirmation of the fees principle that undertaking only one task, regardless of the number of warrants involved, should attract only one fee. The judgment may be compared it to the recent decision in Throssell V Leeds [2004] and contrasted to other cases of the time. In Re. Wells ex parte the Sheriff of Kent [1893] it was ruled that, if a sheriff has made a seizure under one writ, and then has a second writ delivered to him, he cannot charge a further levy fee or mileage unless there is a second levy in a different location.

In Re. Morgan [1904] the High Court considered the charges permissible in a situation where a county court bailiff levied under two warrants of execution issued by separate creditors against the goods of the debtor. A couple of days later, while still in possession under the previous two warrants, the bailiff levied a third execution on the goods of the debtor on the same premises. In each case the bailiff seized and impounded different chattels to satisfy each warrant. Possession under all three executions was held by the same person and was retained until the debtor was made bankrupt shortly afterwards, at which time the goods were handed over to the Official Receiver. The court bailiff claimed his costs in the bankruptcy, asserting that he was entitled to possession money under each execution, notwithstanding the fact that possession under the second and third warrants was held simultaneously with that under the first warrant and by the same person.

The Official Receiver disputed this claim. At taxation the court found for the bailiff. The Receiver appealed to the High Court. Based on the wording of the fee scale then applicable, the court found that separate levies on different groups of goods should attract separate fees. Although the goods were kept in possession in one place on the same premises, there were still three separate possessions under each of the warrants. Wright J inclined to the view that, as a general principle, separate seizures with separate inventories deserved separate fees. Similarly, in In Re: Broster ex. p. Pruddall [1897] a county court bailiff who had levied execution of a warrant was required to levy for rent arrears as well under the provision now to be found at section 102 of the County Courts Act 1984.

This was treated as a separate seizure and on taxation was held to entitle the bailiff to a separate fee.

Although once again the decision is founded on the form of the applicable section of the relevant statute, it is indicative of the courts' attitude.