National Commercial Bank of Scotland v Arcam Demolition & Construction Ltd & others & Hatherley Hall Ltd [1966] 2 QB 593

Facts:

Judgment was entered by the plaintiff against several defendants including a Mr Campbell. A sheriff called to enforce a writ at Campbell's home. He would not sign walking-possession as Hatherley Hall Ltd claimed ownership of his household contents. The sheriff revisited several times over the next month and then on January 24th 1966 managed to persuade Mrs Campbell to sign the possession agreement.

The next day her husband wrote to the sheriff's officer stating that his wife had no authority to sign.

The sheriff initiated interpleader proceedings so that the Court could decide Hatherley Hall's claim to the household contents. They argued that possession had been abandoned when the wife signed the agreement, but the Court dismissed the claim and Hatherley Hall appealed.

Judgment of Lord Denning.

The sheriff could not, of course, sell the goods until the claim had been determined. So he had to take out an interpleader summons to determine the issue. Meanwhile, he had to remain in possession of the goods: because if he abandoned possession, the goods would cease to be in the custody of the law: and the company, Hatherley Hall Ltd., would be able to take possession of them as purchasers, free of the claim of the judgment creditor; see Blades v. Arundale Bagshawes Ltd. v. Deacon.26 Accordingly, the sheriff, by the bailiff, was under a duty to retain possession. He invited Mr. Campbell to sign a document agreeing to walking-possession." But Mr. Campbell refused to sign it. So the bailiff had to remain in possession. He did not actually stay in the house. But he did what was, I think, sufficient to retain possession. He visited the premises frequently and made sure that the goods were safely there and not removed. He did this from December 14th, 1965, to January 24th, 1966. But then something happened which is said to amount to an abandonment of possession.

It happened in this way: On January 24, 1966, the bailiff went to the house. He saw the wife, Mrs. Campbell. She had a houseful of children there and did not want the bailiff about the place. The bailiff told her that she could avoid it by signing a paper agreeing to give him "walking-possession." She said she ought to speak to her solicitors, and then the bailiff said that it did not matter so long as the furniture was not going to he moved. She said that she did not want to move the furniture as she was using it all. She read the paper and signed it. The bailiff left a copy with her and went away. When Mr. Campbell came home, he repudiated what his wife had done. He said that she had no authority from him to sign the paper: and he wrote and informed the bailiff. Hatherley Hall Ltd. wrote to the sheriffs solicitors saying that Mrs. Campbell had no right to sign anything.

It was at one time thought that, in order to retain possession, the bailiff, as the sheriffs officer, must actually remain in the house with the goods. He used to sit down in the kitchen and make himself at home. But that has long since been regarded as unnecessary. It is sufficient if he visits the house frequently to make sure that the goods are safely there and not removed. He then still retains possession. But he need not even do as much as that he need not visit the house - if he gets an agreement by some responsible person in the house to see that the goods are not removed. After getting such an agreement, he is said to take walking-possession". This has become so universal a practice that a form has been prescribed for "walking-possession" such as to entitle the sheriff to fees: see the Sheriffs' Fees (Amendment) Order 1956. This form is so framed as to he signed by the judgment debtor, who would he the person usually in charge of the goods. It is in these words:

"I hereby request that you will not leave a bailiff on my premises in close possession of the goods which you have seized under the above warrant of execution. If this convenience is allowed to me, I undertake, pending the withdrawal or satisfaction of the warrant: - (a) not to remove the said goods or any portion thereof nor to permit their removal by any persons unauthorised by you in that behalf; (b) to inform any county court bailiff or other persons who may enter my premises for the purpose of levying any other execution or distress that you are already in possession of my goods under the above warrant; (c) to inform you immediately at your office of the visit of any such county court bailiff or other persons for the purposes of levying as aforesaid."

But I do not think it necessary, in point of law, for the agreement to be made by the judgment debtor himself. It is sufficient if it is made by any responsible person in the house. Take the simple case where the only person in the house is a caretaker. It would suffice if the caretaker signed a form saying that he would not permit the goods to be removed and would inform the bailiff if anyone tried to remove them. It would not be necessary for the caretaker to have the authority of the judgment debtor. So here it was sufficient for the wife to agree that the goods would not be removed. She was a responsible person in the house. She could see to it that the goods were not removed: or, if anyone attempted to remove them, she could tell the bailiff. She did not need her husband's authority for the purpose. The agreement signed by her was good enough to give "walking-possession," even though the judgment debtor did not authorise it, or even objected to it. Once the agreement was signed, there was no need for the sheriff's officer to visit the premises every day. He could rely on it as giving "walking-possession."

In my judgment, the sheriff has never abandoned possession. The interpleader was properly taken out and heard and determined: and the sheriff retained possession meanwhile. The master so held. He went on to hear the claim of Hatherley Hall Ltd and decided in favour of the judgment creditor and barred the claimant, Hatherley Hall Ltd. I think the master was quite right and I would dismiss this appeal."

Davies LJ:

"I agree. In Mather on Sheriff and Execution Law there is reproduced a circular issued by the Lord Chancellor's department to registrars and high bailiffs of county courts. The principles adumbrated in that circular apply with equal force to the sheriff, and the relevant part of that circular is in these terms:

"The Lord Chancellor considers that it is to the public advantage that walking-possession should be adopted by high bailiffs to the utmost possible extent, goods being removed or a possession man being put into close possession only in cases where it is considered that the course is necessary to safeguard the goods."

That being the principle, it seems to me that the course followed by the sheriff in the present case was eminently proper. What he did was to take the undertaking from Mrs. Campbell, who was a responsible person in the house where the goods were. That course would, of course, be most convenient to her and her family. It would save embarrassment and, not only that, it would save expense which might ultimately have to be met either by the judgment debtor, her husband, or the claimants, Hatherley Hall Ltd. In one sense it might be said that the sheriff took the course of constituting Mrs. Campbell his agent to safeguard the goods and to remain in possession of them as some sort of bailee.

The argument put forward forcibly by Mr. Lewis in this case seems to be that the only person who could sign the undertaking which is scheduled to the Sheriffs' Fees (Amendment) Order, is the judgment debtor. But if that be right, walking-possession in this case would have been impossible, for the judgment debtor, Mr. Campbell, refused to give the undertaking on the ground that he was not the owner of the goods. If it be only the judgment debtor who can sign such an undertaking, then the claimants, Hatherley Hall Ltd, could not do so. That would give rise to such an impasse that the sheriff would have to remain in close possession.

The further point which is, I think, of great importance in this case as showing what the intention of the sheriff was and what the realities of his actions were is that on the day after he had received this undertaking from Mrs. Campbell, he put the matter in the hands of the court in the sense that he issued his interpleader summons, On those facts and in the light of those principles, the contention that the sheriff abandoned possession is quite an impossible one, and I agree, therefore, that the appeal fails.

Russell LJ - "I also agree. It is admitted that the sheriff never intended to abandon possession. But it is said that the fact, which seems to have been accepted, that between January 24 and the hearing of the interpleader summons the sheriff did not actually visit the premises constituted abandonment. But this failure to visit is explicable in a manner inconsistent with abandonment, because the wife, who was as much in actual control of the furniture in question as anyone, had signed this particular document. Here was, I should have thought, ample factum to add to the admitted intention. It is, of course, very rarely that the occasion could occur when the person signing the walking-possession agreement is not both the judgment debtor and also the owner of the goods. I am happy that one can arrive at a decision which I think it consistent not only with due process of law but also with common sense. I venture to read two sentences from the evidence of Mrs. Campbell herself: "I was signing on behalf of myself, not on behalf of my husband. He said" - that is, the sheriff's officer - "it would save him leaving someone in the house. I had a houseful of children and did not want that."

 

Results

1. It explains how walking-possession agreements work, and concludes any "responsible person" can sign one, even a spouse

2. A Bailiff can choose such a person to be in possession

3. The purpose of a walking-possession is preventing seized goods being removed

4. In contrast to Lumsden v Burnett [1898] and Lloyds & Scottish Finance Ltd. v Modern Cars & Caravans (Kingston) Ltd [1966] and H v Sandwell MBC [1992]