Vasivapada Trading Company Ltd v Attorney General [1999] SBCA 8; CA-CAC 5 of 1998 (21 January 1999)

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NATURE OF JURISDICTION:	Appeal from a judgment of The High Court of Solomon Islands (Muria CJ)
COURT FILE NUMBER:	Civil Appeal 5 of 1998 (an appeal from Civil Case 49 of 1996)
DATE OF HEARING:	22nd October 1998
DATE OF DELIVERY JUDGMENT:	21st January 1999
THECOURT:	MASON P, McPHERSON and WILLIAM JJA

PARTIES:	VASIVAPADA TRADING COMPANY LIMITED
	Appellant
	V
	ATTORNEY GENERAL
	Respondent
ADVOCATES:
Appellant:	A. Radclyffe
Respondent:	P.M. Afeau
KEYWORDS:	Default of bailiff in accounting for proceeds of execution - liability of sheriff for that default - liability enforceable by action for money had and received against Attorney-General - Crown proceedings Act, section 4.
EXTEMPORE/RESERVED:	Reserved
ALLOVVEDIDISMISSED:	Appeal allowed
PAGES:	1-11 & 1-12

MASON P: I would allow this appeal for the reasons given by McPherson JJA and I agree with the orders that are proposed in those reasons.

(2) Set aside judgment and orders of the Chief Justice of 25 April 1995. In lieu thereof order that there be judgment for the plaintiff in the action for $80,499.50 with costs against the defendant together with interest at the statutory rate of 5% from 15 January 1996 until the date of this judgment.

I have had the advantage of reading the reasons of Williams J.A. on this appeal. I agree with those reasons, in which the relevant facts are set out, except to the limited extent specified in what follows.

Writ of fi.fa. The benefits of the English legal system are considerable; but they do not extend to the law relating to sheriffs or execution of judgments. It is a notoriously difficult subject, which is not made easier to understand or apply locally by the need to determine the extent to which English common law and statutes are to be applied in places abroad like Solomon Islands where that law has been adopted. The starting point is the writ of execution itself, which in this instance was a writ of fi.fa. In .its traditional form, which is Form no. 1 in Appendix G to the High Court (Civil Procedure) Rules 1964, it embodies a royal command addressed to the sheriff directing that three things be done. The first is to clause to be made (fieri facias or fi.fa.) out of the goods and chattels of a named judgment debtor the amount of the judgment debt and costs. The writ then proceeds:

“... and that you have that money and interest before us in our said Court immediately after the execution hereof to be paid to the [judgment creditor]. And in what manner you shall have executed this writ make appear to us in our said Court immediately after the execution thereof ...”.

Return to the writ. The last sentence refers to what is known as the return to the writ. Despite its mandatory terms and those of the parts of the writ that precede it, in England it has ceased to be the practice for the sheriff to return writs directed to him unless expressly requested to do so. See Mather, Sheriff and Execution Law, 2nd ed.1903, at 117; 16 Halsbury’s Laws of England, 3rd ed., §29, at 21. Instead; he now delivers the proceeds of the execution to the execution creditor after deducting his fees and costs: ibid. Formerly, if he refused or failed to do so, an order could be obtained that he make a return, which could then be followed by an application to show cause why he should not be ordered to pay the person entitled to the proceeds. This was a procedure commonly used where the sheriff insisted on retaining, more than the fees that in law were due to him, which was considered a form of extortion exp. Villiers (1823) 11 Price 575,584-585; 147 E.R. 569, 572. The sheriff (who could not be everywhere) was and is entitled to delegate executions of the writ; but on such an application he is not at liberty to return an answer to an execution creditor or debtor to the effect that he has not personally received the proceeds of execution because they are retained by his bailiff. See Tait & Co. v. Mitchell (1888) 22 L.R. Ir. 327. He is liable for the acts of his delegate so long as the bailiff in question was acting under colour of the authority of the writ. See Gregory v. Cotterell (1855) 5 EI. & BI. 571, 585-588; [1855] EngR 783; 119 E.R. 593, 598 - 599.

Committal for failure to pay. Proceedings of that kind conclude, with a summary order that the sheriff pay the amount of the proceeds wrongly retained. As an officer of the court, he was liable to committal for failing to pay. See Anderson’s Treatise on the Law of Execution (1889) at 303, 315; and Mather’s Sheriff Law, at 110-111. In England, the need to obtain an order that the sheriff make a return was, under the procedure introduced by the Judicature Act, replaced by a simple notice requiring a return to be made as the preliminary to an order for committal. In Solomon Islands that procedure is reflected in 0.55 r.10 of High Court (Civil Procedure) Rules 1964 However, the law here departs from the English practice, in an important particular. In speaking of the person to whom a judgment sum is payable, 0.45, r. 16(2) of the Rules provides for the issue of a writ of fi.fa “directing the sheriff to pay the proceeds of execution into Court”. Notice of payment into court under that rule is to be given in the prescribed form to the plaintiff (the judgment or execution creditor) or 1· is advocate: 0.45, r. 16(5).

Sheriffs Act 1887. If, as the Chief Justice decided on 2 August 1996 in earlier proceedings in this action (CC no. 49/96), the liability of the Sheriff (who in Solomon Islands is the Registrar of the High Court) is enforceable against the Crown rather than the Sheriff personally, it does not sit quite comfortably with the procedure for summary enforcement contemplated under 0.55, r. 1 0, or the issue of a writ of fi.fa. pursuant to 0.45 r. 16(2). Perhaps, however, the explanation is that a summary order that the Sheriff pay the outstanding amount is now available only when he has himself received the proceeds of execution personally, which was not the case here. A potential further source of liability for what has happened in this instance might perhaps be found in s.29 of the Sheriffs Act 1887 (50 & 51 Vict. c.55), which is an Act of the United Kingdom Parliament that repealed a large number of enactments, some of them very ancient, governing sheriffs and their liabilities. For present purposes it is enough to refer only to such parts of s.29(2) as provide:

“(2) If any person, being either a sheriff, under-sheriff, bailiff or officer of a sheriff .....or being an officer to whom the return or execution of writs belongs does any of the following things, that is to say -

(d) ... is guilty ... of any wrongful act or neglect or default in the execution of his office or of any contempt of any superior, court;

he ... shall, without prejudice to any other punishment under the provisions of this Act, but subject as hereinafter mentioned, be liable -

and damages may be recovered by such person as a debt by an action in Her Majesty’s High Court of Justice.”

Section 29(7) imposes a two year limitation period upon proceedings under the section against a sheriff, under-sheriff or other person to whom s.29 applies.

Crown Proceedings Act. Section 4(5) of the Crown proceedings Act exempts the Crown from proceedings in respect of anything done or omitted by any person “while discharging any responsibilities which he has in connection with the execution of judicial process”. I respectfully agree with Williams J.A. that those words are fairly capable of covering what happened here when the bailiff retained, instead of paying into court or to the Sheriff, the proceeds of the execution levied by him in this case. The particular liability for which exemption is granted under s.4(5) is, however, limited to proceedings against the Crown “by virtue of this section”, which by s.4(1) is confined to “liabilities in tort”. Section 29(2)(ii) of the Sheriffs Act enables a person to recover damages from a sheriff, bailiff, etc. who is guilty of any “neglect or defaults in the execution of his office ...”. Both because of this and because the liability created by the provision is expressed to result in a debt, it might be possible to regard s.29(2)(ii) as imposing something other than a liability in tort: cf. The Stonedale No.1 [1956] A.C. 1; and The Putbus [1969] P.136, 150-151.

Vicarious liability under the statute. On that footing, the liability created by s.29(2)(ii) of the Sheriffs Act 1887 might elude the exemption under s.4(5) of the crown Proceeding Act. The Act of 1887 was designed as a codification of the law relating to the various duties of sheriffs and their officers in England. As such, much of it is occupied with matters quite remote from those affecting Solomon Islands. Section 29 is nevertheless capable, pursuant to cl.1 of Schedule 3 of the Constitution, of being applied here. However, in Lee v. Dangar Grant & Co. [1892] UKLawRpKQB 85; [1892] 2 Q.B. 337, 344, Lord Esher M.R. said he found it impossible to imagine “a more unclear exposition and codification of the law” than s.29 of the Act of 1887. What is more important, in that decision and in Bagge v. Whitehead [1892] UKLawRpKQB 88; [1892] 2 Q. B. 355, the Court of appeal in England made it c1ear that the liability imposed on the sheriff by s.29(2) was confined to liability for his own acts and did not extend to making him vicariously liable for those of his bailiff.

Moneys had and received. At the same time, it was accepted by their Lordships that s.29(2) left untouched “all rights of civil action which existed before the Act against the sheriff, either for his own acts or for the acts of his subordinates”: Lee v. Dangar & Co. [1892] UKLawRpKQB 85; [1892] 2 Q.B. 337,348. One such right of action possessed by an execution debtor, such as the plaintiff here, is to sue for moneys had and received whether by the sheriff himself or by his bailiff. In addition to the authorities cited in the reasons for Williams J.A. on this appeal, I would mention only Mather’s Sheriff Law, 2nd ed., at 110, n.(f), and Anderson on The Law of Execution, at 57. The authors of those texts remark that, in order to fix the sheriff with liability for the actions of his bailiff in receiving the proceeds of the execution, the plaintiff must adduce evidence to connect the bailiff with the sheriff, and that it usually takes the form of producing the sheriff’s warrant to the bailiff. In that event, says Anderson, at 315, “it is superfluous to produce the writ in the execution of which the bailiff was acting”. Here the writ was part of the evidence at trial. In any event, there is now no real dispute that the bailiff in question was appointed to carry out the execution. At the trial Mr. Kwaimani said he sent the execution file with the Execution card to the bailiff. Mr. Lawrence Teibi or his firm was not a special bailiff appointed by the execution creditor, for which by law a sheriff is not liable. All parties to the litigation have recognised that Mr. Teibi acted in the execution of the writ of fi.fa. It would otherwise not have been possible for him validly to seize and sell the vessel, as on all sides it is admitted that he did. The complaint is not that he had no authority to do so, but that he failed to account for the proceeds of execution either properly or at all.

Plaintiff’s claim as pleaded. The difficulty is that the plaintiff in its action here sued not for moneys had and received, but for negligence or breach of statutory duty. For the reasons given by Williams J.A., a claim in that form cannot succeed. Even if the statement of claim was intended to convey that the cause of action relied on was something in the nature of a misfeasance in office, it too would be subject to the exemption conferred on the Crown by s.4(5) of the Crown Proceedings Act. That would not have been so if the action had been framed as one for moneys had and received, which is not an action in tort. Section 3 of the Crown proceedings Act contains no comparable exemption or qualification in the case of a claim for moneys had and received under the procedure by which it would formerly have been enforceable against the Crown under the Petitions of Right Act 1860; 23 & 24 Vict. c.34. Within the meaning of s.3 of the Crown Proceedings Act, the Petitions of Right Act provided a form of proceeding which, by force of cl.2 of the First Schedule and s.11 of the Crown Proceedings Act, is now replaced by an action against the Crown in the High Court “instituted and proceeded with in accordance with” the High Court (Civil Procedure) Rules 1964; that is to say, by an ordinary action to recover the money as a debt. In respect of such an action, the period of limitation has long been fixed at six years: see Anderson on Execution, at 323. The plaintiff’s claim is therefore still well within that period. The writ of execution having issued only on 24 May 1995, the bailiff’s liability to account for the proceeds of execution by paying them into court or to the sheriff for that purpose, cannot have arisen until, at earliest, some time after that date.

Wrong cause of action pleaded. The question is why effect may not now be given to the plaintiffs claim against the Crown in the present action. The only answer capable of being offered is that in its amended statement of claim the plaintiff misconceived the form of action available to it, and sued in negligence or breach of statutory duty for damages, when it should have claimed in debt for moneys had and received. The fact that the claim was laid in damages rather than debt cannot possibly be considered fatal. Nowadays the form of relief claimed may help to identify the nature of the cause of action relied on; but it serves little, if any, other useful purpose. Since the Judicature Act, if not before, the prayer for relief has not been demurrable: see Watson v. Hawkins (1876) 24 W.R.884. It can only be the plaintiff’s reliance in paras. 6, 7 and 9 of the amended statement of claim on negligence and breach of statutory duty that can be said to present any real or supposed obstacle to success in the action. However, if those paragraphs, including the reference to “damages” in para.9, are disregarded, the pleading discloses material facts sufficient to raise a claim for moneys had and received. Paragraph 3 alleges a judgment on 28 April 1995 in action CC no. 100/95 against the plaintiff (the execution debtor) in the sum of $98,140.46 with interest and costs. Paragraph 4 alleges that a writ of fi.fa. was directed by the Registrar/Sheriff on 25 May 1995. Both paragraphs are admitted by the defendant. Paragraph 5 alleges a sale by the bailiff for $300,000, from which the execution creditor received $111,844.50, comprising judgment debt, interest and costs, and the plaintiff as execution creditor the sum of $102,749.36 which was paid by cheque on 15 September, 1995,

The defence. The same paragraph also alleges that the bailiff wrongfully retained $80,499.14. As to this, the defendant pleads no more than that the Registrar “did not specifically refer ... the matter of execution to the bailiff”. That is an issue that has been dealt with earlier in these reasons. By 0.21, r.14 of the High Court Rules, every allegation of fact in any pleading, not denied specifically or by necessary implication in the pleading of the opposite party, is taken to be admitted. However, by 0.23, r.4, no denial is necessary as to damages, which are deemed to be put in issue in all cases, unless expressly admitted. Having regard to the form of the plaintiff’s pleading, it is fair to regard the defence here as denying the amount of the claim but no more than that. Reliance was also placed on s.16(3) of the Magistrates Court Act, which, expressing it in general terms, exempts the Sheriff from liability to be sued for any act or omission of any officer or other person in the execution of any process. To my mind, however, that exemption whatever its limits, from liability is confined to the subject-matter of that section, which by s. 16(1) is “the execution of all orders and processes, of the Magistrates Court ...”.Under 0.1, r.1, of the High Court (Civil Procedures) Rules 1964, “bailiff” is defined to mean “a person appointed to be a bailiff pursuant to the law constituting Magistrates Courts”, and “Sheriff’s officer” means a bailiff. Mr. Lawrence Teibi was appointed a bailiff under the Magistrates Court Act, and so was a “bailiff” and Sheriff’s officer within the meaning of the High Court Rules; but it does not follow that, when acting as bailiff or officer in executing a High Court writ of fi.fa., he carried with him the exemption that under s. 16(3) would have attached to the Sheriff in respect of his acts or admissions in the execution of process in the Magistrates Court. In any event, it was not the Sheriff, but the Attorney-General on behalf of the Crown, who was sued in this case.

The legal “label”. The result is that, on the allegations of fact in the amended statement of claim that are expressly admitted or taken to be admitted, the plaintiff established on the pleadings at trial a sale for $300,000 by the bailiff under a fi.fa. of goods belonging to the plaintiff execution debtor; the payment of $111,844.50 to the execution creditor; and retention by the bailiff of the balance in an amount that is not admitted, but which is alleged to be $80,499. In my respectful opinion, those allegations were and are sufficient to raise a claim for moneys had and received. It is true that that was not the form in which the claim was formally pleaded; but that is not necessarily fatal to its recognition in this Court. In Shaw v. Shaw [1954] 2 Q.B 429, the plaintiff claimed damages for breach of promise against the estate of a deceased man with whom she had gone through a form of marriage. Unknown to her, he was in fact married at the time. Her claim failed at first instance because a promise to marry made by a person who is already married to another is against public policy, and either void or unenforceable. The Court of Appeal allowed an appeal and awarded damages to the plaintiff on the basis of breach of an implied collateral warranty by the deceased that he was and remained capable of marrying the plaintiff. To the objection that no such warranty had been pleaded, Denning L.J. responded ([1954] 2 Q.B. 429, 441):

“It is said that an implied warranty is not alleged in the pleadings, put all the material facts are alleged, and in these days so long as those facts are alleged, that is sufficient for the court to proceed to judgment without putting any particular legal label upon the cause of action.”

The other members of the Court of Appeal, who were Singleton and Morris L.JJ., agreed. Their reasons for judgment do not refer to the pleading point. Presumably their Lordships considered it so obvious as not to deserve mention, but, concurring as they did in the decision to award damages, they must both have reached the same conclusion as Lord Denning on the pleading point. The forms of action have now disappeared and, said Lord Atkin in United Australia Ltd. v. Barclays Bank Ltd. [1941] A.C. 1, 29, “should not in these days be allowed to affect actual rights”.

Quantum of claim. On that footing, the plaintiff here is entitled to succeed in its claim for moneys had and received. Enough is pleaded in the amended statement of claim, and has been admitted or proved, to enable the court to proceed to judgment “without putting a particular legal label” on the cause of action against the Crown. What remains and is a little less certain is the quantum of the debt or amount due to the plaintiff. As previously noted, the sale in execution produced $300,000, of which $111,844.50 was paid to the judgment creditor. In the agreed bundle of documents admitted at the trial, there is a letter from the plaintiff which admits to having received a cheque from the bailiff for $102,749.36, which is also the amount that the bailiff claims to have refunded to the plaintiff according to his own report forming part of that bundle of documents. That leaves a deficiency of $86,406.14, which is the amount the bailiff claims to have retained on account of “Bailiff Poundage/Sale Commission & Costs”.

Bailiff’s fees. Statute apart, a sheriff or his bailiff was originally not entitled to any remuneration for his time and trouble in executing a judgment of the court. See Montague v. Davies Benachi & Co. [1911] UKLawRpKQB 93; [1911] 2 K.B. 595, 604-605. He is, however, entitled the reasonable costs or outlay incurred in carrying out the sale, which are sometimes referred to as fees and sometimes as costs. A right to “poundage” was recognised by statutes dating back at least to the time of Elizabeth I. The rate of poundage allow was one shilling in the pound on the first £100 (or 5%), and sixpence thereafter, calculated on the sum payable to and received by the execution, creditor as a result of the levy: see 16 Halsbury, 3rd ed., §44, at 31. Under authority conferred by the Sheriffs Act 1887, certain fees and amounts in respect, of poundage were prescribed in England by statutory order S.R. & O. 1920 no.1250. See 34 Halsbury, 3rd ed., §1182 at, 675, and Appendix A at 720. They may suggest some relevant factors to be considered; but there is no reason for supposing them to apply in Solomon Islands. In any event, the High Court Fees Rules 1985, which repealed previous rules relating to fees, substituted new scales of fees which include the following:

“(7) Sheriffs fees (to be paid to the bailiff from payments made under writ of execution, or proceeds of execution or sale - after deduction, where of expenses of sale)

(b) 5% on proceeds of any sale (not to exceed 5% of judgment debt and costs).”

Poundage and expenses. To my mind, this prescription makes it plain that the bailiff here was, on account of fees or “poundage” under Scale 7(b), entitled at most to 5% of the amount of the judgment debt and costs on that judgment. Precisely what the amount of costs was is a little unclear; but on 15 January 1996 the Registrar, who was then Mr. (now Mr. Justice) Awich calculated the bailiffs fee at 5% of $98,140.06, which is the amount of the judgment debt specified in the writ of fi.fa .. It may be contrasted with the bailiff’s claim, which was calculated at 10% on $103,331.20. The Registrar’s calculation comes to $5,425, while acknowledging that it “may rise by 5% of costs once proved”. On the same occasion, the Registrar disallowed the following:

(a) a fixed fee of $10, on the ground that “there is no authority in the Rules;

(b) a seizure fee of $250, on the ground that there is “no provision for it in the Rules”;

(e) safe custody charge (storage) of $200 per day x 59 days = $11,800, Which would also be allowed if the receipt was produced;

(f) 20% sales commission on $300,000, as to which the Registrar’s decision was “no provision in the Rules to charge commission for sale in execution”.

On that footing, the total to be refunded to the execution debtor was $80,499.14, which is the sum mentioned in para.5 of the plaintiffs statement of claim. Alternatively, if vouchers for expenditure were produced the amount to be returned or refunded would be $65,685.14.

Amount of judgment. In my respectful opinion, it is that amount of $80,499.14, for which Judgment ought now to be entered for the plaintiff in this action. Contrary to the Registrar’s ruling, the bailiff failed to vouch by producing receipts for the expenses he claimed to have incurred. In the agreed bundle of correspondence at the trial, there is a letter dated 15 January 1996 from Ms. Corrin, the solicitor for the execution creditor, containing a “breakdown of sum received”, which incorporates those expenses as part of that sum of $111,844.50 paid to her by the bailiff. A letter dated 22 January 1996 to the bailiff from the Registrar records that the amount of those expenses was paid by the execution creditor, which was then reimbursed as part of the sum paid to its solicitor of $111,844.50. The bailiff was therefore not entitled to claim the same amount over again before the Registrar. What the precise costs of obtaining judgment were, it is difficult to be sure, although there is a letter dated 20 September 1995 from solicitor for the execution creditor which refers to “fixed costs” totaling $230.00. At the rate of 5% on that sum, the amount at issue is sufficiently small to justify its being disregarded altogether.

Judgment. I would accordingly allow the appeal, set aside the judgment below; and give judgment for the plaintiff in the action with costs against the defendant for $80,499.50, together with interest at the statutory rate of 5% from 15 January 1996 (which is the date when the Registrar made his ruling disallowing the bailiff’s claim: cf. ex p. Villiers (1823) 11 Price 575, 585; 147 E.R. 569, 572) until the date of this judgment. Because if the matter had been better pleaded and presented at the trial, this appeal would probably not have been necessary, I would not make any order as to the costs of the appeal.

The appellant, Vasivapada Trading Company Limited, appeals against a judgment of the Chief Justice dismissing its claim against the respondent (the Attorney-General representing the Crown pursuant to the provisions of the Crown Proceedings Act) for damages in the sum of $80,499.14 for negligence or breach of statutory duty.

Sasape Marina Ltd (“Sasape”) obtained judgment against the appellant in the High Court of the Solomon Islands on 25 April 1995 in the sum of $98,140.06 with costs. It then on 25 May 1995 caused a writ of fieri facias to be issued out of the High Court directed to the Sheriff of the Solomon Islands. That writ commanded the Sheriff to “cause to be made the sum of $98,140.06” together with interest at the rate of 18% from the date of judgment and $180 costs from the goods, chattels and property of the appellant in the bailiwick to satisfy the judgment of 28 April 1995. The writ went on to require the Sheriff to “have that money and interest before us in our Court immediately after the execution hereof” to be paid to [Sasape] in pursuance of the said judgment.” Finally it contained the following direction to the Sheriff: “And in what manner you shall have executed this our Writ make appear to our said Court immediately after the execution thereof.” There was also an endorsement thereon to the following effect: “Levy the sum of $98,140.06 plus interest at 18% from the date of judgment together with $180 costs and the costs of execution; besides Sheriff’s poundage, officer’s fees, cost of living and all other legal and incidental expenses.”

That writ was issued in accordance with Order 45, Ru1es 8, 13,14, 15, and 16 and Order 46, Rule 1 of the High Court (Civil Procedure) Rules and was in the form prescribed (Appendix G Form 1).

The Sheriff of the Solomon Islands is the person appointed from time to time to be the Registrar of the High Court (Legal Notice No. 29 of 1962 issued pursuant to s. 20(1) of the Western Pacific (Courts) Order in Council 1961). That appointment has survived subsequent changes in the legislation applicable to the High Court (see definition of “Sheriff” in Order 1 of the High Court (Civil Procedure) Rules). Those Rules also recognise the position of Bailiff; that term is defined to include any person appointed as such pursuant to the Magistrates Courts in the Solomon Islands.

The action as initially constituted named as defendant “The Registrar and Sheriff of the High Court”. Because that was a “public office” (definition s. 144(1) of the Constitution) The Registrar and Sheriff was a public officer for purposes of the Crown Proceedings Act (see definition s.2). In consequence on 2 August 1996 the Chief Justice ordered (referring to s.15 of the Crown Proceedings Act) that the Attorney-General be substituted as defendant for The Registrar and Sheriff of the High Court.

On the hearing of the appeal the Attorney-General conceded that the Sheriff in executing a writ of fieri facias was an officer and servant of the Crown and that in the circumstances the Attorney-General was the correct party.

The facts giving rise to the alleged causes of action in the appellant can be shortly stated. The writ of fieri facias in question was given by the Sheriff ( or person acting on his behalf) to L. Teibi who had been duly appointed a bailiff under s.17 of the Magistrates Court Act on 3 February 1992; he was therefore a bailiff as defined in the High Court (Civil Procedure) Rules. Thereafter on 11 July 1995 he seized the appellant’s vessel “M.V. Thomas E” at Gizo and, after holding it at Talagai until 8 September 1995, sold it by tender for $300,000 to Sasape Marina. (The appellant referred to the fact that the Rules required sale by auction but no substantive argument was addressed to the court on that point). From that sum the bailiff paid directly to the judgment creditor $111,844.50 and directly to the appellant $102,749.36. He retained for himself the balance, $85,406.14, for poundage, sale commission, and costs. (Though nothing was specifically said about it either at trial or on appeal Order 45 Rule 16 strictly required that the whole of the sale proceeds less bailiff proper expenses should have been paid into court.).

i) Fixed fee	$ 10.00
ii) Seizer fee	$ 250.00
iii) Advertising costs	$ 900.00
iv) Transport hire $151 x 14	$ 2,114.00
Safe custody charge (storage) $200/day x 59 (11/7 - 08/9/95)	$11,800.00
vi) 20% sales commission of $300,000	$60,000.00
vii) Poundage 10% (judgment sum + 5% statutory interest from date of judgment)	$10,332.14

On the matter being referred to the Registrar and Sheriff by the appellant, the former calculated that at most the bailiff would be entitled to $14,814, being 5% of the judgment debt plus expenses. The Registrar by letter of 15 January 1996 called upon the bailiff to produce receipts for expenses being advertising costs, transport hire, and storage charges. The bailiff’s response was the letter of 21 February 1996 in which he conceded that he could not produce receipts. Further, the solicitor for the judgment creditor satisfied the Registrar that some of the costs claimed by the bailiff had been paid for by her client and that had been taken into account in the amount paid by the bailiff to the judgment debtor. In consequence the Registrar and Sheriff determined that the bailiff should refund $80,499.14 to the appellant as the bailiff’s proper fees and charges (in the absence of receipts) amounted only to $4,907.

That amount was not paid by the bailiff to the appellant and it can be assumed that the bailiff now has no means of satisfying a judgment for $80,499.14.

The Chief Justice, both in his judgment on the interlocutory issue and in his judgment in the action, pointed out that much of the English common law relating to the position of sheriff was inapplicable to the situation which exists in the Solomon Islands. As a general proposition that is correct. But nevertheless much of the English common law relating to the role of sheriff and execution by writ of fieri facias still applies in the Solomon Islands.

One critical question for determination in the case is the legal nature of the relationship between the Registrar and Sheriff and the bailiff in question. The Chief Justice cited authorities concerned with the liability of a master for the wrongs of his servant and the factual matters relevant to determining whether or not such a master-servant relationship existed. He noted that the bailiff (Teibi) was “a private business person running a private bailiff service” and was given “a contractual appointment to perform the work of a bailiff for a fee, not wages”. Because of those considerations the Chief Justice concluded that the bailiff was an “independent contractor who could in law, be also regarded as the agent of the Registrar/Sheriff”. Because he was experienced “as a bailiff he could work as bailiff without the need to be under the command and control of a Registrar/Sheriff”. Thus it seems clear that the Chief Justice concluded that the bailiff in question was properly categorised as an independent contractor for whose misconduct the sheriff was not liable.

Such a conclusion is not in accordance with the common law on the subject. Parke B said in Woods v Finnis [1852] EngR 291; (1852) 7 Exch 363 at 370; [1852] EngR 291; 155 E.R. 988 at 991: “There is no doubt that the sheriff is liable for all acts done, and neglects of duty, by the bailiff in the execution of a writ, on the ground that if the sheriff thinks fit to commit the execution f a writ, which he is bound to execute, to another, he is responsible if that person does not execute it properly, and is in the same condition as if he had executed it himself”. To similar effect is the statement of Maule J in Smith v Pritchard [1849] EngR 1050; (1849) 8 C.B. 565; 137 E.R. 629: “Now, the liability of the sheriff in case of mistake or misconduct on the part of his officer, though extensive, is confined to cases where there is a misdoing of something which the sheriff commands him to do. If the sheriff is sued for a misfeasance of the officer, it is no answer to say that his command was not obeyed; he is still liable, provided the thing done be something which by the command or under the authority of the sheriff the officer was bound to do .... The reason that the sheriff is held liable is, that, having a duty imposed upon him by law, instead of performing it himself, he delegates it to another; and therefore it is but just that he should be responsible for the misconduct of those to whom he so delegates the performance of his duty” (C.B. at 588; E.R. at 638). Also in point is the statement by Jervis CJ in Gregory v Cotterell [1855] EngR 783; (1855) 5 E. & B. 571; 119 E.R. 593: “.... the reason of the extended liability of the sheriff beyond that of an ordinary person, for the acts of those to whom he delegates authority, is, that he is supposed to be executing his duty in person, as he is bound in the first instance to do. The impossibility of so doing authorises him to delegate that authority to another; and he puts that party in his place: and for whatever that party does, not only when done virtute mandati, but colore mandati, the Sheriff is responsible ... I apprehend, therefore, that the principle laid down by Mr. Blackburn is correct, that the sheriff has a power of delegating his authority to another, and that, having conferred that authority upon another party, he is responsible for everything that that party does; and if that party, by colour of the authority, commits a wrong, that, for that wrong, the sheriff is liable” (E.& B. at 585-6; E.R. at 598-9). Blackstone J in Saunderson v Baker [1799] EngR 426; (1772) 3 Wils. K. B. 309 at 317; [1799] EngR 426; 95 E.R. 1072 at 1076 and Lord Denman C.J. and Littledale J in Raphael v Goodman (1838) 8 Ad. & EI. 565 at 570; [1838] EngR 716; 112 E.R. 952 at 954 spoke of the sheriff and his bailiff being the “same” or “one person”; similar phraseology was used by Parke J in Smart v Hutton appended to the decision in Raphael v Goodman. (See also Lord Mansfield in Ackworth v Kempe (1778) I Doug. 40; 99 E.R. 30 and Woodgate v Knatchbull [1787] EngR 221; (1787) 2 T.R. 148; 100 E.R. 80).

Those cases, in my view, clearly establish the relationship between the sheriff to whom a writ of fieri facias is directed and an under-sheriff or bailiff who actually executes the writ. The authority to seize the goods is derived from the writ which is addressed to the sheriff. It would be a physical impossibility for the sheriff personally to executive all such writs and that is why it is recognised that he may delegate the authority to an under-Sheriff or bailiff. But as the writ is directed to the sheriff in law he remains personally responsible for its execution.

That must be the position in the Solomon Islands. As noted above the Rules of the High Court formally recognise that a bailiff appointed as such pursuant to the laws constituting Magistrates Courts is a bailiff for purposes of the High Court Rules. In the instant case the writ was directed to the sheriff and the sheriff properly and understandably gave the writ to a duly authorised bailiff for execution. Thereafter the relationship between the sheriff and the bailiff was as indicated in the common law cases cited above.

Where the sheriff (or someone to whom he has delegated his authority), for example, seizes goods pursuant to a fieri facias which are not the goods of the judgment debtor the sheriff will be liable in trespass (Saunderson and Ackworth). In such circumstances the sheriff could also be liable in damages for negligence or misfeasance. The sheriff may also be liable in appropriate circumstances for damages for misfeasance by a public officer in the discharge of his duties (Brasyer v Maclean [1875] UKLawRpPC 9; (1875) L.R. 6 P.C. 398).

But more significantly for present purposes the sheriff will be liable in an action for money had and received where a fee larger than that permitted by law has been retained. (Blake v Newburn (1848) 5 Dow & L. 601, Jons v Perchard (1794) 2 Esp. 507; 170 E.R. 436, Dew v Parsons (1819) 2 B. & Ald. 562; 106 E.R. 471 and Woodgate v Knatchbull). There is also a useful discussion of the liability of the sheriff in such circumstances in Atkinson’s Sheriff (6th ed. by Melsheimer) at 323 ff. In Jons the money had been taken by a sheriff’s officer and there was no evidence that it had come into the hands of the sheriff; nevertheless it was held that an action for money had and received lay against the sheriff to recover monies retained by the sheriff’s officer to which he was not entitled by law. In Gregory the court in effect held that payment to the sheriff’s officer was the equivalent of payment to the sheriff; the sheriff was bound by the payment and was answerable for it both to the judgment creditor and the judgment debtor.

It is also interesting to note that there is American authority (National Automobile and Casualty Insurance Company v Pitchess (2d Dist) 35 Cal App 3d 62, 110 Cal Rptr 649) to the effect that money received by the sheriff upon executing a writ of attachment is held on trust; any dealing not in accordance with the terms of that trust would give rise to an action for breach of fiduciary duty. It is not necessary to decide whether or not that analysis is appropriate here. Clearly under common law both the judgment creditor and the judgment debtor may recover from the sheriff in an action for money had and received where funds obtained on execution are improperly withheld or improperly distributed.

In the instant case, as noted above, the appellant’s claim was framed either in negligence or breach of statutory duty. The statement of claim alleged that the respondent owed a duty of care to the plaintiff “to ensure that the Civil Procedure Rules and High Court Fees Rules are complied with by the Court and its agent and that monies under the control of an officer or agent of the Court are dealt with according to law”. It went on to allege negligence in the following particulars:

“(a) The Registrar failed to exercise any or any proper control over the said bailiff in CC100/95;

(b) on being informed of the breach of the Civil Procedure Rule and/or High Court Fees Rules by Sasape Marina Ltd’s solicitor and the Plaintiff the Registrar failed to take prompt action to recover the money from the bailiff;

“As to the claim of negligence or breach of Statutory duty, the evidence in my view does not support that contention. The Registrar/Sheriff had appointed an experienced a person well versed in the work of enforcement of Court judgments. He was entitled to rely on the bailiff’s professional experience. He did so. However as soon as complaint was raised against the bailiff, the Registrar/Sheriff took the matter of complaint up with the bailiff. He sought explanations from the bailiff; requested the bailiff to return the files; requested the bailiff to return part of the money; and threatened the bailiff with possible police investigation. In Doc. 22 the Registrar/Sheriff wrote to the bailiff pointing out that some money ought to be returned to the defendant in CC100/95 (the plaintiff in the present case). Correspondence in this regard ensured between the various parties including the plaintiff, the judgment creditor and the Registrar/Sheriff. No response came from the bailiff until 21 February 1996 in which be provided explanations justifying his actions including that of retaining the amount here claimed by the plaintiff. Except for the complaint of unlawful retention of the sum of $80,499.14 the bailiff did what was expected of him in enforcing the judgment in CC 100/95. There was no inaction or carelessness on the part of the Registrar/Sheriff upon being notified of the complained action of the bailiff. There is no evidence to substantiate the claim that the Registrar/Sheriff was guilty of any act of negligence in this case.

There is the point raised by the learned Attorney General regarding the duty of the Sheriff toward the plaintiff in this case. In my view there is no duty owned by the Sheriff to the plaintiff. If there is any, it has not been established. A duty however existed between the Sheriff and the judgment creditor as far as CC 100/95 is concerned. That duty between the Sheriff and the judgment creditor is one founded in contract for the purpose of satisfying the judgment on behalf of the creditor. The Sheriff or bailiff is to enforce the judgment on behalf of the judgment creditor in return for the payment of the Sheriffs or bailiffs fees and charges. If the Sheriff or Bailiff having done his work and had not been paid his fees and charges, he is entitled to sue for them. What duty the Sheriff owed to the judgment debtor (the plaintiff) in this case has not been established, if there was any.

There was also the allegation that the Registrar/Sheriff had breached his statutory duties, in particular O.54,r10 which provides that the Sheriff is responsible for sales in execution of judgment. It is said that the Sheriff did not authorise the sale of the plaintiff’s vessel. To this argument I feel the answer lies in the authority given to the bailiff who was authorised to exercise the legal functions of the Sheriff in executing the order of the Court. In my judgment the Registrar/Sheriff has not breached his statutory duties.”

Those findings must, in my respectful opinion, be regarded with some caution because, as noted above the Chief Justice had erroneously classified the relationship between the sheriff and the bailiff. Nevertheless there is force in his conclusion that the sheriff was not guilty of negligence.

An argument might however be formulated that the Rules imposed a statutory duty on the sheriff to pay the proceeds of the execution into court prior to distribution. But, in my view, it would be a pointless exercise to consider that proposition in depth because of the effect of s.4 of the Crown Proceedings Act. Relevantly that section provides:

“(1) Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject -

(5) No proceeding shall lie against the Crown by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial process.”

There is no definition of “execution of judicial process” or “judicial process” for purposes of the Act; the provision appears to be identically worded with s.2(5) of the English Crown Proceedings Act 1947. I could find no direct authority as to the meaning of those expressions in the English Act. However, it seems clear that “execution of judicial process” must encompass the execution of a writ of fieri facias; that is part of the judicial process of enforcing the judgment of the court from which the sheriff’s authority is derived.

It would appear, at least in England, that the effect of the statutory provision is to exempt the Crown from liability, leaving the sheriff personally liable. That appears to be the clear inference from a reading of Halsbury (3rd Edition) Vol.34 p.661 ff on Sheriffs and Bailiffs.

This action is now constituted as one against the Crown and as it is flamed as an action in tort the statutory provision affords the Crown immunity.

It follows that even if one could formulate this as a claim for breach of statutory duty (in that the sheriff failed to comply with the Rules of Court) judgment could not be given against the Crown. The immunity granted by s.4(5) would provide immunity with respect to an action based either on negligence or breach of statutory duty.

If an action were brought for money had and received in accordance with the common law authorities referred to above there would be no statutory provision giving the Crown immunity.

The Chief Justice in his reasons for judgment also questioned whether or not the appellant had proved entitlement to the amount claimed. He concluded that the bailiff may have a right to retain more than $4,907, and said in his judgment: “How much was properly due to the bailiff we do not know unless the taxing master (Registrar of the High Court) identified it in the light of the bailiff’s claim. So until that is done I do not think it can be successfully argued that the bailiff wrongfully retained the whole amount of $80,499.14.”

With respect I would differ from the Chief Justice in that regard. The Registrar formally called upon the bailiff to justify his claim for fees by producing receipts. The bailiff either refused to do so or was unable to do so. In either event the Registrar was entitled to rule, as he did, that the bailiff was not entitled to make a claim where receipts were not produced. In those circumstances the Registrar correctly ruled and notified the bailiff that he was only entitled to claim $4,907. I would therefore be prepared to hold that the appellant had established an entitlement to the amount claimed if otherwise it established a viable cause of action.

I had initially thought that the only conclusion this court could reach was that the appeal should be dismissed, leaving it to the appellant to commence a fresh action for money had and received to which there would be no defence. However, having read the reasons for judgment prepared by McPherson JA, I have become persuaded that the matters pleaded and findings made in relation thereto permit this court to give judgment as if the cause of action sued on was for money had and received. However, because the appellant required the indulgence of this court in order to succeed there should be no order made in the appellant’s favour with respect to costs of the appeal.

I would therefore allow the appeal, set aside the judgment below, and give judgment for the plaintiff in the action against the defendant for $80,499. 14 with costs to be taxed. I would allow interest from 15 January 1996. No order as to costs of the appeal.

Court of Appeal of Solomon Islands

Vasivapada Trading Company Ltd v Attorney General [1999] SBCA 8; CA-CAC 5 of 1998 (21 January 1999)