Shahram Sharghy acts for the High Court Enforcement Officer in the leading authority on Warrants of Entry under the Tribunals, Courts and Enforcement Act 2007

News | Fri 29th Sep, 2017

The court was required to determine whether the third party High Court enforcement officer, acting on the claimant’s behalf, could and had lawfully taken control of an aircraft (Boeing 737) with a value of approximately $60 million against a debt of over $200 million. The aircraft was mortgaged to around $101 million and was said to be owned by a company which was ultimately controlled by the defendant.

The claimant believed that the aircraft was stationed at an airfield near Alton, Hants and began enforcement proceedings, believing that the aircraft was due to take off the next day out of the jurisdiction. It obtained a Writ of Control pursuant to CPR Pt 83. A High Court Enforcement Officer obtained a Warrant of Entry pursuant to the Tribunals, Courts and Enforcement Act 2007 Sch.12 Pt 2 para.15 in order to enter the airfield and take control of the aircraft.

On the way to the airfield, the claimant informed him that the aircraft was actually stationed at Stansted Airport. He, therefore, obtained access to the aircraft at Stansted Airport on the premise that he was provided with a licence to enter the same. However, the following day he obtained a second Warrant of Entry for Stansted Airport in order to remove the aircraft to a safe location in order to prevent it being flown out of the jurisdiction.

The issues were whether the Enforcement Officer could, and had, lawfully taken control of the aircraft. The claimant submitted that the enforcement officer had the power to take control of the aircraft as staff had given him a licence to enter. The first defendant submitted that the Warrant of Entry was not valid as it had specified the wrong premises. It further submitted that it had been futile and wrong in principle to issue a warrant under sch.12 para.15, as all the proceeds of the sale of the aircraft would be taken by the bank, and an asset in which there was no equity in redemption was not suitable for execution.

In the first authoritative judgment on the issue since the 2007 Act came into force, Blair J held that the power conferred by a Writ of Control was exercisable only by using the procedure in sch.12. Under sch.12 para.9 an Enforcement Officer could only take control of goods if they were on premises that he had the power to enter. Under para.15, the power to enter under a Warrant would be granted provided where that (i) an enforcement power had become exercisable, (ii) there was reason to believe that there were goods on the premises over which the enforcement power would be exercisable to take control, and (iii) it was reasonable in all the circumstances to issue the Warrant.

In the instant case, the Warrant had not specified Stanstead Airport as the location. As such the Enforcement Officer did not have the power to enter under sch.12, notwithstanding the licence he had been given to enter the said premises. Observing the rules was of utmost importance in this regard of control. Reliance on the Writ of Control could only be placed where there was a Warrant of Entry for premises where the goods were situated. Control could not be validly taken otherwise.

However, although the obligations under the mortgage far exceeded the value of the aircraft, it was not correct to see the taking of control as necessarily leading to a sale, as taking control of goods might enhance a claimant’s position as against the overall debt owed. In the instant case, it was therefore not unreasonable to take control of the aircraft as in the absence of such control the evidence was that the aircraft would likely leave the jurisdiction.

Shahram Sharghy acted for The Sheriff’s Office.

Shahram’s profile is available here.

Judgment available here.

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