Claire Louise Sandbrook (in her capacity as High Court Enforcement Officer) v Marcus Herring & Anor

Section 23 of the Partnership Act 1890 applies to a writ of control directed generally against a debtor’s goods. A general writ cannot be used to evade the prohibition on execution against partnership property for an individual partner’s debt. The prohibition is compatible with the enforcement regime in the Tribunals, Courts and Enforcement Act 2007. Partnership property may remain partnership property during a continuing dissolution until the final winding-up, depending on the facts. The court may decide threshold questions of law and fee entitlement while reserving factual issues concerning ownership, loss and the consequences of any unlawful enforcement for later case management. Auctioneer’s commission and reasonable out-of-pocket expenses may be recoverable under the fees regulations. Advice about conducting an auction is not an exceptional disbursement, whereas independent security costs may qualify where necessary for effective enforcement.

The applicant was a High Court enforcement officer seeking directions and assessment of fees and disbursements arising from enforcement of a judgment debt owed by Marcus Herring to Christopher Herring. Goods and machinery were seized and sold during the dissolution of a farming partnership between Marcus and Christopher. Some assets were arguably partnership property.

The application relied principally on CPR 84.14 and 84.16. Marcus disputed the fees and also contended that section 23 of the Partnership Act 1890 prevented execution against partnership property, or made the writ defective. The court considered which legal and procedural issues could fairly be determined at the hearing, while leaving ownership, loss and the precise consequences of any breach for a later stage.

1. Section 23. Section 23(1) of the Partnership Act 1890 prohibits a writ of execution against partnership property for an individual partner’s debt, subject to the exception of a judgment against the firm. Section 23(2) provides the alternative enforcement route of a charging order over the partner’s interest. The provision is not impliedly repealed or displaced by the Tribunals, Courts and Enforcement Act 2007 or Schedule 12 to that Act.
2. Scope of the prohibition. The reference to a writ of execution is general and is not confined to a writ directed at specifically identified property. A general writ of control cannot be used to circumvent section 23. The reasoning in Peake v Carter was consistent with that conclusion.
3. Dissolution. Partnership property may remain partnership property during a continuing dissolution, including assets generated by trading in dissolution, until final winding-up. Whether particular goods fell within that category required further evidence and was not finally decided.
4. Effect of the sealed writ. The principle in R (on the application of Majera (formerly SM (Rwanda)) (AP) v Secretary of State for the Home Department that a court order must generally be obeyed until set aside did not provide a knock-out answer. Section 23 might mean that the writ did not authorise seizure of partnership property, that the goods were protected under paragraph 4 of Schedule 12, or that the writ was defective under paragraph 66. The court deliberately left the precise route and consequences open.
5. Fees and disbursements. Subject to the unresolved section 23 issues, the buyer’s premium was auctioneer’s commission recoverable under Regulation 9. Advice from the auctioneer on how to arrange and conduct the sale was neither an exceptional disbursement under Regulation 10 nor a separate advertising disbursement under Regulation 9(2)(c). Independent security costs were necessary for effective enforcement, having regard to the amount of the debt and the value and vulnerability of the goods, and were exceptional disbursements. Solicitors’ advice on whether enforcement should proceed was not necessary for effective enforcement.
6. Case management. Applying the overriding objective, the court determined the threshold legal issue, the provisional fee categories and the proceeds calculation, but did not determine ownership, loss, reasonable belief or the final consequences. Marcus was directed to advance his claims by the appropriate originating process, followed by a global statement of case and further case management.