Court allows receiver appointment over future Basic Payment Scheme funds as no legal execution remedy exists.

THE COURT OF APPEAL

Neutral Citation Number: [2017] IECA 245

Finlay Geoghegan J.

Irvine J.

Hedigan J.

Appeal No. 2015/466

BETWEEN

ACC LOAN MANAGEMENT LIMITED

PLAINTIFF/RESPONDENT

-AND-

MARK RICKARD and GERARD RICKARD

DEFENDANTS/APPELLANT

JUDGMENT of Mr. Justice Hedigan delivered on the 31st day of July 2017

Background

1. This is the first defendant’s appeal against the judgment and order of McGovern J. of the 13th July, 2015. This order provided for a

variation of the order of the High Court made by Kelly J. on the 4th October, 2011, appointing Judith Riordan as receiver by way of

equitable execution (“a receiver”) over the payments to be made by the Department of Agriculture, Fisheries and Food (“the

department”) in respect of the appellant herein under the single farm payment scheme (“SFPS”). It was varied so as to provide that

the same receiver be appointed over such payments as may be received in respect of the basic payment scheme (“BPS”). This

second scheme was introduced to replace the first.

2. In the original proceedings grounding these orders, the respondent issued a summary summons on the 1st December, 2011.

Judgment was granted in the Commercial Court on the 25th February, 2011, against the appellant and the second defendant in the

sum of €1,064,747.66. An ex parte application was brought on the 4th October, 2011, to have the above receiver appointed by way

of equitable execution. This was granted. It was an absolute order with the appellant given liberty to apply, on 48 hours notice to the

respondent and the Court, to have it varied. He did not do so. The respondent issued the motion to vary this order, in the terms

outlined above, on the 12th June, 2015.

3. The payment scheme operates so that the appellant is entitled to apply each year. The application is then considered and decided

upon by the department. The application will only be granted if certain qualifying criteria are met.

Appellant’s submissions

4. Mr. McNally B.L., on behalf of the appellant, submitted that the application was in reality for more than just a variation of the

original order because there was a fundamental change in the nature of the payment. The amendment sought, required a new

application. Counsel made two main points.

5. He submitted firstly that the decision of Peart J., relied upon by the trial judge, in O’Connell v. An Bord Pleanala [2007] IEHC 79 was

wrongly decided and this Court should follow the authorities followed by Hogan J. in Flanagan v. Crosby [2014] 1 I.R. 576, namely;

National Irish Bank Ltd. v. Graham [1994] 1 I.R. 215 and Honniball v. Cunningham [2006] IEHC 326, [2010] 2 I.R. 1. It was submitted

that these cases were not argued in O’Connell and that the correct approach is that receivers appointed by way of equitable

execution can only be appointed over equitable interests and not legal interests. He submitted also that the appellant’s entitlement to

a payment only arises when the department assesses the annual application and decides that he qualifies for the payment. Until such

a decision was made, there was nothing to be attached.

6. Second, it was submitted that even if the judgment in O’Connell is correct, there were two issues in that case which make

appointment inappropriate. First, all other remedies must be exhausted. In this regard, it is submitted that there was no attempt to

use the Enforcement of Court Orders Acts to satisfy the debt. Second, it was held that receivers cannot be appointed over salaries,

earnings or wages necessary to live. The appellant submitted that payments under the BPS amounted to supplementary income.

Respondent’s submissions

7. Mr. Fitzpatrick S.C., on behalf of the respondent, submitted that the payments were not legally due and accruing and as such were

beyond the reach of the normal legal process. The entitlement to claim was a chose in action (Waldron v. Herring [2013] 3 I.R. 323)

which has always been amenable to the appointment of a receiver by way of equitable execution. The right to appoint a receiver by

way of equitable execution in the circumstances of the instant case existed before the decision in O’Connell.

8. It was submitted that the decision in Graham was based on remarks in Holmes v. Millage [1893] 1 Q.B. 551 which it was argued

were obiter. Further it was submitted that other cases from England and Wales such as Maclaine Watson & Co Ltd. v. International

Tin Council [1987] 3 W.L.R. 508 were not opened in Graham. Holmes can be distinguished and it has been held that it is not a

requirement that the property be in the form of an equitable interest. It was submitted that Holmes was the only case which held

that this was a prerequisite. There were many cases from England and Wales prior to Soinco SACI v. Novokuznetsk Aluminium Plant

[1998] 1 Q.B. 406 where receivers were appointed by way of equitable execution over legal and future interests. It was submitted

that irrespective of the stream of authority chosen the right to appoint exists as it was there before and after Soinco. It was

submitted that the respondent was in the same position as the judgment creditor in Bourne v. Colodense [1985] I.C.R. 291 and

Maclaine. The right here is attached to the appellant and not the farm. It is unnecessary to make a choice between the Graham,

Honniball, and Flanagan decisions and O’Connell.

9. Mr. Fitzpatrick urged this Court to accept the reasoning in O’Connell. He argued that the reasons offered in the other line of cases

were based on a reliance on Holmes as cited in Graham in which Maclaine was not opened. It was submitted that Flanagan was not

authority for the proposition that O’Connell was wrongly decided. Further if a choice is necessary O’Connell should be preferred for

both policy reasons and because English decisions have shown that the divergence between legal and equitable interest in relation to

the entitlement to appoint a receiver by way of equitable execution does not exist.

10. The hindrance to execution in this case was that there is not an entitlement to a particular sum at a particular time. The asset is

the right to apply for payments under the scheme. This amounts to a chose in action, and is not something over which an order of

garnishee can be made. Counsel further submitted that this case is not affected by the decision of Hanna J. in Ballinrobe Credit Union

v. O’Neill [2016] IEHC 230 because the evidence in that case was more limited and was to the effect that the entitlement to the

payment arose before the application was made once there was compliance with the criteria.

11. It was also submitted that this Court can consider the jurisdiction expressed in O’Connell and it can expand it or accept the

expansion in the way in which it was done in Soinco. Further there are strong policy reasons for doing so as were set out in Flanagan.

The court in modern times should accept the development of the jurisdiction of equity.

12. In relation to the appellant’s argument that not all remedies had been exhausted the respondent submitted that no authority was

opened to support the proposition that the respondent should first have sought an instalment order. The respondent explained that it

had taken what was thought to be the better course as the alternative would involve taking the farm.

13. It was further noted that there had been no application to set aside the original order for hardship nor was it submitted that there

was no intention to apply for the payment. The respondent also referred to averments in its affidavits that noted the appellant’s

income and submitted that the payments under the scheme are subsidies. The attachment in this case is not to payments made from

an employer for work done by an employee. The payments are not income.

Decision

14. The defendants are tillage farmers in County Meath. They have been for some years in receipt of substantial sums of money

through the SFPS. The payments do not constitute their only income. The evidence is that the farm business in fact was generating

in excess of €750,000 per annum at the time of the original appointment of the receiver. The plaintiff at that time had obtained on

consent a judgment in the amount of €1,064,747.66. This judgment was wholly undischarged. Whilst the respondent did have the

benefit of security over the defendant’s farmlands, their value however would not be such as would cover the debt in existence. Upon

a sale, a considerable shortfall would remain. A statement of affairs was requested on 30th March, 2011, but was not forthcoming. In

these circumstances, an application was made to the High Court for the appointment of a receiver over sums that would become

payable on application and approval under the SFPS. The application was made ex parte to Kelly J. in the Commercial Court. He made

the order sought on the 4th October, 2011, giving liberty to apply to the defendants to vary or discharge the order. They did not do

so nor was this order appealed. In the ensuing three and a half years, €525,877.40 was received on foot of this order. This reduced

the debt due as of the 10th April, 2015, to €820,686.44.

15. On the 25th March, 2015, the respondent was informed by the department that the SFPS was being replaced with the BPS. The

department informed the respondent that an application would have to be made to bring payments under the new scheme within the

ambit of the receiver’s appointment. The respondent was of the view that the underlying facts were unchanged. All that had changed

was the identification of the payments that were to be received. They were to come from the same source and the appellant’s

entitlement thereto was largely upon the same basis. No significant legal difference appeared. The application was brought by notice

of motion and heard by McGovern J. on the 13th July, 2015.

16. In the approved note of his judgment, McGovern J. decided as follows:

(i) The SFPS had been replaced by the BPS.

(ii) The original judgment in favour of the plaintiff had been obtained on consent.

(iii) Other than the fact that the defendant did not contest the original appointment of a receiver by way of equitable

execution, the facts were unchanged.

(iv) Under the previous order about €500,000 had been paid off the debt.

(v) The defendant appears to have lands which might or might not be sufficient to discharge the debt.

(vi) The defendant remains a judgment debtor.

(vii) The only change is in the nomenclature of the scheme.

(viii) The reasons for the original order of Kelly J. appointing a receiver by way of equitable execution have not changed.

The circumstances justified making the order.

(ix) He nonetheless did hear argument by the appellant against the appointment of a receiver. He rejected them. He found

that a divergence of opinion on receivers by way of equitable execution did exist but he accepted and followed the

reasoning of Peart J. in O’Connell.

(x) All reasonable steps had been taken except the step of a well charging order.

(xi) McGovern J. varied the order of Kelly J. of the 4th October, 2011, so as to provide that the receiver be appointed

over such payments as may be received in respect of the BPS and made no order for costs.

17. The defendant has appealed that decision to this Court. In his notice of appeal the appellant sets out his grounds of appeal. They

may be summarised as follows:

(i) The judge erred in his decision.

(ii) The appellant was denied natural justice because his affidavit filed on the 28th July, 2015, was ignored by the judge.

(iii) The application brought by the plaintiff requires more than a mere variation of an existing order. It requires a new

order.

(iv) The appellant seeks that the order made be set aside.

18. The respondent in its notice opposes the whole appeal. It claims firstly that the appellant has not particularised the grounds of

appeal. Without prejudice to that, the respondent pleads as follows:

(i) The affidavit of the 28th July, 2015, was sworn after the decision challenged herein was given.

(ii) The affidavit of the 2nd July, 2015, sworn by the appellant was opened and considered by the judge.

(iii) The judge did not accept that a new order was necessary following consideration of the basis of that contention as

set out in the appellant’s affidavit.

(iv) Without prejudice to this, the respondent pleads that it would have been appropriate to make a new order for the

same reasons as grounded the order made by Kelly J. because there was still €820,686.14 owing on foot of the original

judgment. As was the case previously, it was just and convenient to make such an order. The payments to be received

under the BPS were beyond the ordinary legal enforcement processes.

19. Was it indeed just a case of nomenclature as the learned trial judge found or was there really a need for a new order as opposed

to a variation of the old order. The nature of the two schemes is described in the Help Sheet/Terms and Conditions issued by the

Department of Agriculture, Food and the Marine and exhibited at DW5 of the affidavit of Damien Walsh sworn herein on the 5th June,

2015, see in particular p. 6 thereof. It may be summarised as follows: the previous scheme of one single payment is now replaced by

a scheme of four payments. The new scheme was designed to be more focused on specific Common Agriculture Policy (CAP) goals

such as environmental protection, development of young farmers and of desirable crops. It was intended that all recipients will receive

the same amount in payments as they previously did under the SFPS.

20. There is no evidence that the appellant will not succeed in his continuing applications for the BPS. This clearly constitutes a most

valuable right in the hands of the appellant. Under the Scheme no payment will be made unless the applicant farmer makes the

appropriate application within time and meets the criteria specified. When he does all payments will be made through the department.

There does seem to be a strong case for the argument adopted by the learned trial judge that what was being sought in 2015 was no

more than a variation of the order of 2011. However, he did go on to hear argument concerning the general power to appoint a

receiver by way of equitable execution over payments such as those provided in the BPS. That indeed seems the only substantive

issue in this appeal.

The power to appoint a receiver

21. The power to appoint a receiver derives from s. 28(8) of the Supreme Court of Judicature (Ireland) Act, 1877 which provides as

follows:-

“28(8) A mandamus or an injunction may be granted or a receiver appointed by an interlocutory order of the Court in all

cases in which it shall appear to the Court to be just or convenient that such order should be made and any such order

may be made either unconditionally or upon such terms and conditions as the Court shall think just…”

22. The Rules of the Superior Courts, 1986 make provision for the appointment of a receiver as follows:-

“Order 50, rule 6

(i) The Court may grant a mandamus or an injunction or appoint a receiver, by an interlocutory order in all cases in which

it appears to the Court to be just or convenient to do so.

(ii) Any such order may be made either unconditionally or upon such terms and conditions as the Court thinks just.”

23. Order 45, rule 9 provides:-

“In every case in which an application is made for the appointment of a receiver by way of equitable execution, the Court

in determining whether it is just or convenient that such appointment should be made shall have regard to the amount of

the debt claimed by the applicant, to the amount which may probably be obtained by the receiver, and to the probable

costs of his appointment, and may, if it shall so think fit, direct any inquiries on these or other matters, before making the

appointment. The order shall be made upon such terms as the Court may direct.”

24. A very helpful analysis of the jurisdiction to appoint a receiver by way of equitable execution is to be found in the judgment of

Millet J. in Maclaine Watson and Company v. International Tin Council at pages17 to 20. Certain relevant principles may be deduced

therefrom:

(i) The court’s jurisdiction to appoint a receiver by way of equitable execution arises “in all cases in which it appears to

the court to be just and convenient to do so”.

(ii) The statutory provisions did not, according to Millet J., confer a power to appoint such a receiver in a case where

prior to the Judicature Acts no court could have. This statement does not now appear to represent the law in England

and Wales, see Colman J. in Soinco SACI v. Novokuznetzk Aluminium Plant [1988] 1 QB 406.

(iii) The appointment of a receiver by way of equitable execution is a form of equitable relief to enforce a judgment debt

granted in the special circumstances of a particular case if the usual process of execution or attachment is not available.

The remedy is discretionary.

(iv) It is required that there should exist some hindrance arising from the nature of the property preventing the judgment

creditor from obtaining execution at law but which the appointment of a receiver can overcome.

(v) It is not execution that is granted but equitable relief on the ground that there is no remedy by execution at law. The

appointment of a receiver takes away a hindrance preventing execution at common law.

(vi) The hindrance should arise from the nature of the property.

(vii) An applicant for such an order should be required to show that circumstances are such that it would be practically

very difficult if not impossible to obtain the fruit of his judgment unless equitable execution is granted. Millet J. considered

this as a somewhat liberal formulation but was not troubled by it since he was dealing with a case of impossibility.

(viii) There could not be a receiver appointed over a man’s future salary. This was not available either at law or in equity.

The Court of Chancery had no jurisdiction to prevent a man from receiving his earnings unless he himself had assigned or

charged them. Future earnings are not by law attachable by any process of execution direct or indirect.

(ix) The test established by Chitty J. was that there should be no way at getting at the fund except by the appointment

of a receiver.

(x) The existence of a legal interest is not a bar to the appointment of a receiver. Millet J. observed that no cases were

cited to him that said that this was so and that in fact two cases were cited where there was such an interest.

25. It was and it remains the respondent’s case that payments to be made under both schemes are not payments which were legally

due and accruing. Thus, they were beyond the reach of the normal legal process. This it argues was the basis of the decision by Kelly

J. of the 4th October, 2011, i.e. the payments were such as might at some point in the future become legally due. He followed

O’Connell in which Peart J. applied in Ireland the English decision in Soinco. In O’Connell, the respondent An Bord Pleanála sought

assistance to execute an order for costs against O’Connell by the appointment of a receiver by way of equitable execution over “so

much of any monies which the applicant might in the future recover by way of damages in an action” commenced in the High Court in

a personal injuries action. Those proceedings had only been commenced and it was unclear what if any damages might be awarded.

Dealing with the objection that a receiver should not be appointed over monies payable in the future, Peart J. noted and accepted

the reasoning of Colman J. in Soinco where he dealt with the appointment of a receiver over monies not due or accruing at the date

of the application. Colman J. noted by way of comparison developments in the law involving the preservation of assets by way of the

Mareva injunction. The principles developed in that area of the law had developed over time so that such orders could now be

granted over not just assets existing at the time of making the order but also over assets coming into existence after the making of

the order. Colman J.’s reasoning was as follows at page 422:-

“If pre-trial Mareva injunctions can apply, as, in my judgment, they do, to assets brought into the jurisdiction

subsequently to the making of the order, there can be no reason, in principle, why post-judgment conservatory

injunctions should not also be capable of applying to after-acquired assets, provided that they are within the overall

monetary ceiling incorporated in the order. If that is correct, and there is a jurisdiction to preserve for execution by

injunction assets acquired and yet to be acquired after judgment, there would seem equally to be no reason in principle

why a receiver should not also be appointed to preserve such assets. And if a receiver may be appointed to preserve

such assets, why not to effect attachment of those assets for the benefit of the judgment creditor, provided that the

court is satisfied that the debtor can be adequately protected against double jeopardy? In these circumstances I can see

no reason whatever why, 124 years after the Judicature Acts, the court should deny to itself a jurisdiction which is self-

evidently likely to be extremely useful as an ancillary form of execution. I would therefore hold that there is jurisdiction to

appoint a receiver by way of equitable execution to receive future debts as well as debts due or accruing due at the date

of the order.”

26. Peart J. noted that in Courtney, Mareva Injunctions and Related Interlocutory Orders, 1st Ed., (Ireland, 1998) the author

described favourably the reasoning of Colman J. in Soinco. The learned author noted at page 431:-

“It is thought that the foregoing reasoning is both convincing and attractive and may be persuasive to an Irish Court.”

27. Adopting the above approach, Peart J. decided it was appropriate to appoint a receiver by way of equitable execution over any

possible damages that might be awarded to Ms. O’Connell in her personal injury action. He held:

“I am satisfied that the ordinary processes of execution normally available to a judgment creditor are not in the

circumstances of the present case sufficient to enable the second named Notice Party enforce payment of its judgment

against the applicant. I am satisfied that the reasoning of Colman J. in Soinco is equally persuasive in this jurisdiction, and

I see no reason why this Court should conclude that the law here should be different. The appointment of a receiver by

way of equitable execution is a remedy by which equity assists a judgment creditor to secure enforcement of a judgment

against the judgment debtor. To appoint such a receiver over such sum as may be recovered by the applicant in her claim

for damages, and limited of course to the amount of the judgment debt, including interest, does not do any injustice to

the judgment debtor, especially in circumstances where judgment has already been obtained. It is not therefore unjust. I

am satisfied that it is convenient to do so, given the inability of the ordinary methods of execution to effect a discharge

of the amount due, and given the fact, which I accept, that the second named Notice Party can have no control over the

applicant's proceedings for damages and no reasonable way of ensuring that it is aware of what is happening in relation to

those proceedings even if they are not settled prior to any hearing. The second named Notice Party would never be

aware if the case was settled prior to trial, and in a position to make any timely application for an order of garnishee over

any settlement monies. Neither would it be aware of the date of any trial so as to hold a watching brief and make an

appropriate application at the conclusion of the trial. It is therefore convenient that an order should be made.”

28. It must be noted that the nature of the future payments involved in O’Connell is markedly different to that herein. The criticism of

this judgment in Keane, Equity and the Law of Trusts in the Republic of Ireland, 2nd Ed., (Dublin, 2011) is based upon the nature of

the property in question. The learned author states that in fact there is no property at all to which the judgment debtor was entitled

either immediately or in the future. There was at least the possibility that Ms. O’Connell would not in fact succeed in her personal

injury action. There was therefore something inherently speculative about the whole application. Here however, the appellant has

repeatedly applied for and received substantial subsidies under the SFPS. There is no evidence of any likely difficulty in making future

applications under the BPS. The scheme itself, as summarised at para. 19 above, clearly indicates that it is intended that any farmers

that have benefitted before from the SFPS would benefit to the same extent from the BPS. The likelihood of such payment being

made is highly probable. Indeed, it is all but certain.

29. However, the appellant has no legal right to payment of specific sums of money under the BPS. Until his application is made and

approved, there does not exist a debt claim against the department capable of being the subject of a garnishee order. This was quite

properly conceded by Mr. McNally for the appellant. The only right the appellant has is to apply for a payment under the BPS albeit an

application all but certain to be granted. It is thus an intangible but very valuable property right which may be described as a chose in

action because it can only be enforced, if necessary, through legal action. The need for the appellant to sue for his payment has

never arisen but his right to sue for it and succeed, all application conditions having been met, were he not paid it, is very clear. It is

an entitlement both to apply for the BPS payments and to pursue a cause of action to obtain the same all conditions having been met

and it thus constitutes a chose in action. See Waldron v. Herring [2013] 3 I.R. 323 (Edwards J.) at paragraph 14. Moreover, the

subsidies payable to the appellant under the scheme are undoubtedly “an amount which may probably be obtained by the receiver in

accordance with Order 45, rule 9.

30. Mr. McNally, for the appellant, referred the Court to the judgment of the High Court in Flanagan v. Crosby [2014] 1 I.R. 576. It

was submitted that Hogan J. found that O’Connell was wrongly decided and instead followed the previous decisions of National Irish

Bank Ltd. v. Graham [1994] 1 I.R. 215 and Honniball v. Cunningham [2006] IEHC 326, [2010] 2 I.R. 1. Both these latter cases held

that the appointment of a receiver by way of equitable execution is confined to the enforcement of equitable rights only. In Honniball,

Laffoy J. relying on the decision in Graham, observed at para. 30 as follows:-

“The principle, as I understand it, is that the court will not appoint a receiver by way of equitable execution over property

of which the judgment debtor is the legal owner and which can be the subject of legal process…The principle is that the

equitable remedy is only available where the judgment debtor has only an equitable interest in property against which the

judgment creditor seeks recourse.”

31. In the first place, it seems clear that the appellant does not argue herein that they have any legal right to the BPS payments.

That is why Mr. McNally conceded that the respondent could not obtain a garnishee order on the payments. In fact, the appellant

argued that he did not even have an equitable interest at the time of the appointment of the receiver.

32. However, it seems to me that none of these cases are apposite since they did not involve attempts to attach property to which

the judgment debtor had only an equitable interest. In his judgment, in Flanagan, Hogan J. was addressing the question he set out at

paragraph 1:-

“Can a receiver be appointed by way of equitable execution in respect of the future salary or other emoluments of an

employee to which he is, in law, entitled? Or is the power to appoint a receiver by way of equitable execution confined to

equitable interests in property only?”

33. The principle set out by Laffoy J. noted above in fact supports the proposition that the equitable remedy is available where the

judgment debtor has an equitable interest only. Hogan J. concluded at paragraph 30:-

“The decisions in National Irish Bank Ltd. v. Graham [1994] 1 I.R. 215 and Honniball v. Cunningham [2006] IEHC 326,

[2010] 2 1.R. 1, clearly hold that the appointment of a receiver by way of equitable execution is confined to the

enforcement of equitable rights only.”

34. Thus, the rationale for his judgment was that the previous High Court judgments in Graham and Honniball which he had expressed

himself as bound to follow (see para. 29 of his judgment) had held that a receiver could only be appointed over rights which were

equitable in nature. In this case the only interest of the appellant in the BPS is the equitable one of a right to apply and a right to sue

if refused. There is much to be said for the wider view expressed by Hogan J. at para. 29 of his judgment where, having reviewed the

authorities, he observed:-

“If, therefore, the matter were to be viewed afresh, examined from the standpoint of first principles, then tradition apart,

there seems no reason, in principle, why an order for the appointment of a receiver by way of equitable execution could

not be made in respect of legal as well as equitable interest. Yet, irrespective, however, of how the matter might be

approached if the issue were to be considered as if it were res integra, I nevertheless feel that I would not be entitled to

depart from the view expressed in contemporary times by both Keane J. in National Irish Bank Ltd. v. Graham [1994] 1

I.R. 215 and by Laffoy J. in Honniball v. Cunningham [2006] IEHC 326, [2010] 2 I.R. 1. To that extent, therefore, I

consider myself bound by the majority views, as expressed by members of this court, and it is clear that, absent special

circumstances, I must follow this line of authority.”

As however the question herein involves only equitable interests, this broader approach does not require consideration.

35. The appellant argues also that the monies payable are in the first place equivalent to earnings or wages necessary to live, that

they amount to supplementary income and are future income. By their nature it is argued, these are not property over which a

receiver may be appointed. The appellant relies upon M’Creery v. Bennett [1904] 2 I.R. 69, Picton v. Cullen [1900] 2 I.R. 612 and

Holmes v. Millage [1893] 1 QB 551. In M’Creery v. Bennett, Barton J. relying upon Holmes v. Millage held that there was no

jurisdiction to prospectively impound the future earnings of a judgment debtor. He found however that salary which has already

become due and pensions for past service might be the subject of equitable assistance to a judgment creditor. The rationale appears

to be that stated by counsel for the defendant in Holmes v. Millage at page 552. These were that the court will not make an order

that is futile. It cannot compel the defendant to do his work or his employer to employ him. In Picton the Court found it had

jurisdiction to appoint a receiver over an instalment of a school teacher’s salary which had actually become due for work already done

but also cited Holmes v. Millage as authority for the proposition that a receiver cannot be appointed over the future earnings of

anyone. Thus, it seems clear that it is the maxim that equity will not act in vain which is in action on this point. It is further clear

from the comments of Lindley L.J. at p. 554 of his judgment that it was the wages of Mr. Millage that he was considering therein:-

“The question raised by the appeal is one of great importance, not only to the parties immediately concerned, but to

every wage-earning person in the country. The question involved in the appeal is whether a judgment creditor is entitled

to a receiver of the future earnings of his judgment debtor.”

36. None of these decisions support the proposition that the court cannot appoint a receiver over future debts or income. Only wages

or salary are excluded on these authorities.

37. From this review of the relevant authorities, it seems to me that the following principles should guide the courts in determining

upon the appointment of a receiver by way of equitable execution;

(a) The court has jurisdiction to appoint a receiver to receive future debts as well as debts due or accruing.

(b) A receiver may not be appointed over future wages or salary.

(c) The court must consider whether it is just and convenient to do so. In this respect, the court should have regard to

the amount of the debt, the amount that may probably be obtained by the receiver and the costs of the appointment of

a receiver.

(d) Are there special circumstances in the particular case that make the usual process of execution or attachment

unavailable?

(e) Is there some hindrance arising from the nature of the property which prevents the judgment creditor from obtaining

execution at law which the appointment of a receiver can overcome?

(f) There should be no way of getting at the fund other than by the appointment of a receiver.

(g) It is not execution that is granted but equitable relief where there is no remedy by execution at law.

(h) The remedy is discretionary.

38. Applying these principles to this application the following seems clear;

(a) If the appellant applies to the department for payment under the BPS and meets all the conditions then the payments

will become due and owing. They may be regarded as future debts.

(b) Payments under the BPS are not future wages or salary. They are subsidies payable by the department to farmers

who comply with certain policies approved under the Common Agricultural Policy of the European Union. They may be the

subject of the appointment of a receiver.

(c) As to whether it is just or convenient to appoint a receiver, the debt in question although now substantially reduced

by virtue of the amounts received to date, remains a very large one. The amounts that may be received for payment

down of the debt are likely to be equivalent to sums already paid under the SFPS. They are very substantial. On the

evidence, there is no other practicable way in which the debt may be reduced. The costs of appointing a receiver are

likely to be very small by comparison with the sums to be received. No real issue has arisen on this point.

(d) The circumstances of this case are that no process of execution over the BPS payments is available to the

respondent bank because until they are granted there is no property against which to execute. In the same way, there is

no property to attach but there will be in the future. BPS payments are future income.

(e) The hindrance faced by the judgment creditor in this case is that the judgment debtor has no legal interest in the BPS

payments until he applies and meets all the conditions required for payment. The equitable relief of a receiver overcomes

this hindrance which prevents execution at common law.

(f) It is conceded quite correctly that the respondent cannot obtain an order of garnishee and it cannot execute against

property that does not yet exist.

(g) There is therefore no remedy by execution at law and only the appointment of a receiver can provide the equitable

relief that can go towards payment down of the substantial debt that is owed.

(h) The arrangement in place since the original order made in 2011 has resulted in a major reduction in the debt due by

the appellant to the respondent herein. This is to the benefit of both. No grounds are ascertainable that would suggest

that the Court should not exercise its discretion.

39. All the conditions required for the appointment of a receiver by way of equitable execution over the BPS payments that may be

made to the appellant are therefore met. The appeal will be dismissed.