N was charged with VAT fraud. He was the joint owner of a company with his brother T each holding 50% of the shares. T was never charged. A restraint and receivership order was made against N, preventing the company from dealing in any way with its assets. N was acquitted but the assets of the company were used to meet the receiver’s costs and expenses. In each case the Commissioners had been appointed receivers of the applicant’s assets pending a decision in parallel criminal proceedings on a confiscation order. The final orders were not made, and the Commissioners appealed orders denying them their costs from the assets they had realised.
Held: Save as provided otherwise, statutory receivers were to be treated precisely as their common-law counterparts. The regime of restraint and receivership orders was not contrary to the applicants’ human rights. Acquitted defendants are not, save exceptionally, entitled to compensation for being deprived of their liberty while on remand, and it was no more unfair that they should be uncompensated for any adverse effects that restraint and receivership orders might have had upon their assets.
The introduction of CPR 69.7 had made a significant change in law and practice for receivers as regards remuneration.
Simon Brown LJ said: ‘I entirely accept that an acquitted (or indeed unconvicted) defendant must for these purposes be treated as an innocent person . . I cannot accept, however, that for this reason it must be regarded as disproportionate, still less arbitrary (another contention advanced by the respondents), to leave the defendant, against whom restraint and receivership orders have been made, uncompensated for such loss as they may have caused him – unless, of course, by establishing ‘some serious fault’ on the prosecutor’s part he can bring himself within the strict requirements of section 89.
It is common ground that acquitted defendants are not, save in the most exceptional circumstances, entitled to compensation for being deprived of their liberty whilst on remand or indeed for any other heads of loss suffered through being prosecuted. In my judgment it is no more unfair, disproportionate or arbitrary that they should be uncompensated too for any adverse effects that restraint and receivership orders may have had upon their assets.’
Lord Justice Simon Brown, Lord Justice Laws and Lady Justice Arden
[2003] 1 WLR 177, Times 31-May-2002, Gazette 27-Jun-2002, [2002] EWCA Civ 670, [2002] 4 All ER 633
Bailii
Supreme Court Act 1981 31, Criminal Justice Act 1988 Part VI, European Convention on Human Rights First Protocol, Civil Procedure Rules 69.7
England and Wales
Cited by:
Cited – In re X (Restraint Order: Payment out) QBD 22-Apr-2004
A restraint order had been made in respect of the defendant’s assets pending trial. Application was made to release a sum to pay the defendant’s company debts.
Held: A payment could be made only where the the realisable value of the property . .
Cited – Capewell v Commissioners for HM Customs and Excise and Sinclair CA 2-Dec-2004
The court approved guidelines for the appointment and remuneration of a receiver appointed under the 1988 Act. . .
Cited – Capewell v Customs and Excise and Another (No 2) CA 29-Jul-2005
The Commissioners had been appointed as receiver of the claimant’s assets. The receivership was later discharged, but should have been discharged earlier, the court had the power not only to calculate the level of remuneration but also who should be . .
Cited – Capewell v Revenue and Customs and Another HL 31-Jan-2007
The defendant appealed against an order regarding the remuneration of a receiver appointed to administer a restraint order placed on the assets of the defendant under the 1988 Act on the basis of an allegation that the defendant had been involved in . .
Cited – Barnes (As Former Court Appointed Receiver) v The Eastenders Group and Another SC 8-May-2014
Costs of Wrongly Appointed Receiver
‘The contest in this case is about who should bear the costs and expenses of a receiver appointed under an order which ought not to have been made. The appellant, who is a former partner in a well known firm of accountants, was appointed to act as . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.172232
