Dayman v Aziz

Dayman v Aziz confirms that CPR rule 69.7 is procedural and does not abolish the established right of a court-appointed receiver to remuneration from assets in the receivership. A receiver’s entitlement to be indemnified for costs, expenses and remuneration is not dependent solely on an express order complying with rule 69.7(1), unless the relevant statutory scheme expressly provides otherwise. An order may nevertheless contain sufficient terms, including incorporated correspondence or an agreed remuneration arrangement, to authorise payment. The court applied the reasoning in Capewell and treated CPR rule 69.7 as incapable of making a fundamental change to the general law of receivership.

The claimant had been appointed as a restraint and management receiver under section 77 of the 1988 Act. After the receivership was discharged, she sought possession of property belonging to the defendant in order to realise funds for her costs and fees.

The defendant argued that the claimant could not charge for her services because CPR 69.7(1) required the court to direct remuneration and specify its basis. The preliminary issue was whether the claimant had an entitlement to remuneration despite the alleged absence of a sufficiently express order.

1. Application allowed. Judgment was entered for the claimant.
2. CPR 69.7(1) does not make a receiver’s entitlement to remuneration depend exclusively on a fresh or expressly worded order satisfying that provision. The rule forms part of a procedural code applicable to receiverships generally and did not make a fundamental change to the general law of receivership.
3. The established principle is that a receiver is entitled to be indemnified from assets held in the receivership for costs and expenses, and for remuneration where the receiver is entitled to be remunerated. The court adopted the reasoning in Re B and, in particular, the House of Lords’ reasoning in Capewell.
4. In any event, the relevant order, read with the incorporated letter of agreement and related material, made it sufficiently clear that the receiver was to be remunerated from the receivership assets and that approval was to be obtained before remuneration was drawn. The construction point therefore also favoured the claimant.
5. The judge left open, because it did not arise for decision, whether the court could authorise remuneration retrospectively by reason of the nature of the receiver’s office.