Lloyds & Scottish Finance Ltd. v Modern Cars & Caravans (Kingston) Ltd [1966] 1 QB 764

Facts: A camper van had been sold and bought in rapid succession and Mercantile Credit obtained judgment against Frederick Wood in the High Court.

He did not pay and so a writ was issued and sheriff's officers levied on a camper van. Shortly after, Wood sold the van to the defendants, Modern Cars and Caravans who sold it to the plaintiffs, Lloyds & Scottish, who in turn sold it on HP to a Mr Worsfold. The sheriffs seized the camper van from Worsfold who then refused to pay Lloyds & Scottish. They in turn sued Modern Cars for selling them goods with a pre-existing sheriff's levy. Modern Cars tried to defend the claim there was no valid levy or the levy had been abandoned.

The analysis of taking possession and abandonment which followed is the only part of the judgment of interest.

The sheriff called at the caravan site where Wood lived in the van with his family on April 14 1961. The sheriff, unable to remove the van or remain in close possession tried to get Wood to sign a walking-possession agreement which he refused because his wife claimed ownership of the van. The sheriff left the campsite leaving his employer's details, notes of the judgment and the creditor's solicitor as Wood said he wanted to arrange payments on the judgment with them.

Mrs Wood made signed a formal claim to the van and on May 4 interpleader proceedings were begun.

The bailiff revisited the caravan site on April 18, 24th and 27th and on May 4th 5th and 8th. He saw the van was still there and spoke to the Woods about their negotiations with the judgment creditor's solicitors. On May 10th, 12th and 15th he visited but found no-one at home. On May 19th he visited and found that the van had gone because Modern Cars had taken it.

Judgment of Edmund Davies J:

"I turn to the first issue - namely, did Allison (the sheriff's officer) ever seize the caravan in execution before the sale by Wood? Whether seizure has occurred is a question of fact, turning upon the circumstances of each particular case, but certain guiding principles have been evolved over the years, and these are conveniently summarised in Halsbury's Laws of England in this way:

"For an act of the sheriff or his bailiff to constitute a seizure of goods, it is not necessary that there should he any physical contact with the goods seized; nor does such contact necessarily amount to seizure. An entry upon the premises on which the goods are situate, together with an intimation of an intention to seize the goods, will amount to a valid seizure, even where the premises are extensive and the property seized widely scattered, but some act must he done sufficient to intimate to the judgment debtor or his servants that a seizure has been made, and it is not sufficient to enter upon the premises and demand the debt. Any act which, if not done with the authority of the court, would amount to a trespass to goods, will constitute a seizure of them when done under the writ.

In the light of the authorities cited in support of this passage, I hold that on April 14h there was a seizure by the sheriff's officer of the caravan and its contents as against the judgment debtor. He did not merely demand payment of the debt (as was done in Nash v Dickinson but having entered and told the debtor that he had come to levy execution and read out his warrant, he handed him the written intimation already referred to. Furthermore, he offered for signature a "walking-possession" agreement, and he warned Wood and his wife that the caravan must not be moved. It is said that he should have done more: that he should have asked the Wood family to leave the caravan, and then locked it up or towed it away. Such a submission is unrealistic, for the Woods' refusal to sign the agreement indicated clearly that they would not have consented to the much more drastic course of leaving; and had the officer proceeded to move the caravan with the Wood family still inside, and after Mrs. Wood had laid claim to its ownership, he would have run a grave risk of involving the sheriff in liability to pay damages for wrongful execution, wrongful imprisonment and trespass against the person, as occurred in Cave v Capel. It would have been highly inconvenient (though, it seems, physically possible) for him to have remained in the caravan with its four occupants, and he had no legal right to camp outside on the caravan site. Having done what he did, he went away. In my judgment, he departed after having effectively seized the caravan and its contents. It has been submitted that to do so after he had been refused consent to walking-possession" indicates that he never seized at all. But I interpret this incident in quite a different way, for in my view the fact that he requested such consent supports the view that he was then levying execution.

Where, as here, a judgment debtor concurs in the adverse claim of a third party to the goods, it would in most cases be impossible to get the debtor to agree to walking-possession. Then does it follow that, in every such case, there can be no seizure and no continuance thereof unless the sheriffs officer remains throughout on the premises? I think that question must be answered in the negative. In Lumsden v Burnett, a case relevant mainly to the issue of abandonment, distress was claimed to have been levied on eight pairs of trousers which were never actually taken into possession by the sheriff's officer, he merely having obtained the signature of the debtor's 13 - year-old daughter to a "walking-possession" agreement, which was manifestly worthless. The child had no authority to sign this document, but it was nevertheless held that the officer had effected execution and that it had not been abandoned, although the most that the officer did thereafter was to visit the premises occasionally to see whether the goods had been removed.

In In re: Cooper a sheriff's officer, intending to levy execution on two caterpillar tractors, went to the debtor's farm and there handed to an employee two forms stating that execution had been levied on the two tractors, although they were not removed, and he also handed him two forms inviting the debtor to agree to walking execution and then left. Danckwerts J held that this constituted a levying of execution.7 But the citation of authorities could proceed indefinitely. I hold on the facts of this case that on April 14h, 1961; the sheriff's officer seized under the writ the caravan and its contents.

Then was that seizure abandoned before the defendants bought the caravan from Wood? This is again a question of fact, and it is agreed that the answer depends upon the intention of the sheriff's officer, which is a matter of inference to be deduced from the evidence as & whole. For the defence, it is submitted that if a sheriffs officer leaves the debtor's premises for any reason, he abandons possession, and, certainly as against a third party, the debtor's goods are thereafter free from any encumbrance. More particularly, it is submitted that, as far as outsiders are concerned, seizure cannot be continued even by a walking-possession agreement signed by the debtor.

Reference must here he made to Bower v Hett, where Lord Esher MR said:

In this case there was a seizure of goods by the bailiff; but he went out of possession under an arrangement with the judgment debtor that he might at any time come in again and retake possession of the goods. He was therefore out of possession."

I do not think that these words can be interpreted as meaning that whenever an officer leaves the debtor's premises he must in all cases be regarded as having abandoned his seizure of the debtor's goods, in so far as third parties are concerned, and the decision must turn, as I think, on the wording of the arrangement entered into between the parties. In Ackland v Paynter Graham B said: "I do not mean to lay down the general proposition that a sheriff can in no case quit possession without any qualification; but I should consider, that to show it not an abandonment, he ought to be able most clearly to account for it, as being caused by some urgent necessity, and to give very satisfactory evidence of that.

Bagshawes v Deacon affords an example of failure by the sheriff to produce such satisfactory explanation of going out of possession. It is to be observed that A. L. Smith LJ gave the leading judgment both in that case and in Lumsden v Burnett to which reference has already been made, where possession was held to continue notwithstanding that the sheriff's officer had left the premises.

Counsel for the defendants, relying upon Blades v Arundale has submitted that, to he effective, the seizure must be maintained by continued personal possession. He submits that even a "walking-possession" agreement signed by the judgment debtor would not serve to avert abandonment of the seizure as between the creditor and a third party. Swann v Earl of Falmouth is relevant to this latter submission as well as to the question of what constitutes seizure. There a landlord's agent entered the tenant's premises (a wharf), walked around them and gave a written notice that he had distrained certain goods lying there for arrears of rent, and that unless the rent was paid or the goods replevied within five days, they would be sold, and he then went away. Littledale J, after holding that there had been an original seizure and no abandonment thereof, continued:

"The case might have been different, had the question arisen between the landlord and an execution creditor, or a purchaser for valuable consideration without notice, for the landlord might, perhaps, he considered to have lost his right as against third persons if he neglected to give reasonable notice of it."

But in these days when "walking-possession" agreements are such a common feature and have even been encouraged in the case of county court bailiffs by the Lord Chancellor's Department, it is difficult to see why, if abandonment turns on intention, any distinction should be drawn between the judgment creditor and third parties, and there are several reported cases where no such distinction has been made. In my judgment, it is one which cannot validly be made. There was either abandonment of the seizure, or there was not.

In the present case, did the sheriff ever intend to abandon the seizure made by his officer on April 14th? The evidence indicates that he did not. The nine visits paid by his officer between that date and the disappearance of the caravan, his reporting of Mrs. Woods claim to the judgment creditor, and his action in taking out the first interpleader summons, all point unmistakably, in my view, to the conclusion that at no time did he intend to abandon the seizure. On the body of evidence I hold that in fact no abandonment took place."

Outcome:

1. A valid levy can be made with effective possession taken, without a signed walking-possession agreement.

2. The levy must he protected from abandonment.

3. Seizures without a signed possession agreement are therefore possible, but the bailiff must work at them diligently, making contact with the debtor at least once.

4. Contrasting opinion to White v Chapple [1847] when a sheriff's officer went out of possession of seized goods for a very short while in order to get a drink when another bailiff entered and levied.

5. A child cannot sign a walking-possession agreement. In England and Wales a Child is a person under 18.