56 Fellows Road Limited v ABC Block Management Limited

Mr Wolanski is the sole director of the appellant company, 56 Fellows Road Limited (‘56FR’). The Respondent, ABC Block Management Limited (‘ABC’) obtained judgment against 56FR in the sum of £7731.28 (‘the debt’) on its counterclaim in 56FR’s claim against ABC (G9QZ60Q1) (‘the Claim’). On 15 June 2022, a High Court Enforcement Agent (‘HCEA’), Mr Fishwick, went to Mr Wolanski’s home address to enforce the judgment debt. Mr Fishwick demanded a payment of £9967.56 (which was the amount of debt and the enforcement fees) (‘the Amount’). Mr Wolanski used a debit card to pay the amount from his personal bank account (‘payment 1’). I will say more, below, about what happened to payment 1.

ABC later applied for a charging order to enforce the judgment debt (‘the application’). District Judge Moses (‘the District Judge’) refused the application. ABC appealed. HHJ Baucher (‘the Judge’) allowed ABC’s appeal. This is my judgment on Mr Wolanski’s appeal from the decision of the Judge.

The basic question on this appeal is what the effect of payment 1 was. 56FR argues that Mr Wolanski made payment 1 on its behalf and that it extinguished the judgment debt. ABC argues that he made payment 1 in his personal capacity and that payment 1 did not extinguish the judgment debt. The parties have also made submissions about a further payment (‘payment 2’). Payment 2 was made to Mr Wolanski under an agreement between him and Direct Collections Bailiffs Limited (‘DCBL’) dated 12 October 2022 (‘the Agreement’). The amount of payment 2 was the same as the Amount.

56FR appeals with the permission of Nugee LJ. On this appeal, 56FR was represented by Mr Kessler. ABC was represented by Mr East. I thank them both for their written and oral submissions.

For the reasons given in this judgment, I would dismiss this appeal. On analysis, this appeal does not turn on any difficult legal issues. The answers lie in the facts, and the Judge was right about those, essentially for the reasons which she gave.

There was no trial in this case; witnesses were not called or cross-examined. The District Judge dealt with the application by hearing submissions. He did not give a formal judgment. His reasons for refusing the application have to be deduced from the transcript of the hearing. The parties had agreed to adjourn that hearing, and ABC’s advocate had not prepared for a hearing of the merits of the application. The District Judge was not referred by her, or by Mr Wolanski, to many documents.

The Judge was referred to more of the evidence, but not to all of the contemporaneous documents. Crucially, she was nevertheless referred to the ‘form E4 complaint against a certificated bailiff’ (see paragraphs 12-16, below) (‘form E4’), the Agreement (see paragraph 32, below), and to the undated covering letter accompanying the Agreement (see paragraph 30, below). ABC applied before the hearing of this appeal for further documents to be admitted. That application was not opposed by 56FR. It seems to me that it is necessary in the interests of justice for this court to consider those documents. They fully support the conclusion reached by the Judge. They show that the form E4 is not a straw in the wind and support her interpretation of the Agreement.

Moreover, the main issue in this case is not an issue of credibility. The issue is what inferences are to be drawn from the documents about the circumstances in which Mr Wolanski made payment 1. For reasons which are analogous to those of Leggatt J (as he then was) in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm); [2020] 1 CLC 428, I consider that the contemporaneous documents are a much better guide to the facts which are relevant to that legal question than any oral evidence would be or would have been. Nor do I consider that the findings of fact which flow from those documents are in any way marginal; nor did the Judge, who saw fewer of them.

The relevant county court judgment was sealed on 23 March 2022. The Claim was dismissed. The court gave judgment on the counterclaim in ABC’s favour in the sum of £6603.38. 56FR was ordered to pay ABC the amount of the judgment and £545 in fixed costs.

A writ of control was issued in the Queen’s Bench Division on 10 May 2022 on ABC’s application. It referred to claim number G9QZ60Q1. It was addressed, not to DCBL, but to Simon John Williamson, a High Court Enforcement Officer (‘HCEO’) ‘authorised to enforce writs of execution from the High Court’. The writ commanded him, in the name of the sovereign, to seize the goods and chattels of 56FR to raise from them ‘the sums detailed in the Schedule’ and any fees to which he was entitled and ‘immediately after execution pay’ ABC ‘the said sums and interest’. The address for enforcement was ‘Flat A, 56, Fellows Road’. The number of the writ is ‘HCW3174460’ (‘the Writ’).

There is a ‘Payment Receipt’ dated 15 June 2022 on the notepaper of DCBL. There is a ‘case reference’ in the top left corner. It is illegible but we were told that it is the number of the writ. The ‘Def name’ is ‘56FR’. The amount received was the Amount. The payment method was debit card. The ‘card holder name’ is ‘Simon Wolanski’. He signed the receipt as the card holder. Against the box ‘If third party – what is the relationship to the Defendant’, the word ‘Director’ is written.

The next document has the same date. It is the form E4. Mr Fishwick is named as the bailiff. The complainant is Mr Wolanski. He said that the HCEO attended at about 8.00am. ‘He attended my private address. Debt is in the name of a company.’ Mr Wolanski was a 5% shareholder in the company that owned the debtor, and a director. He explained that the company only owned the freehold as an investment and got a few hundred pounds a year in ground rent. There was nothing ‘which could be construed as belonging to the company at the address’. The only reason the address was on the writ was because he had used it as a correspondence address at a court hearing.

He was present outside the flat with his ten-year old son. Mr Fishwick said that he had the right to force entry into the flat and was going to do that. Mr Fishwick said that his client had asked the court and had specifically got permission for him to force entry. He had arranged for a locksmith to come and change the locks. He would take between half an hour and an hour to arrive. Mr Wolanski challenged this repeatedly but was told that Mr Fishwick had permission to force entry.

Mr Wolanski tried to show him an email on his telephone to show that ‘we were trying to engage with the process’. Having read it, Mr Fishwick put the phone in his pocket. He said it was now owned by the court. Mr Wolanski offered to show him a receipt to prove that phone belonged to him. ‘No reasonable person could consider that the phone was owned by the debtor’. He would not give it back and told Mr Wolanski that he would have to go to court to get it back.

Mr Wolanski said, ‘I felt extremely vulnerable’ because he could not communicate with anyone. He felt sure he was being lied to, in particular about the court’s instructions to gain entry and that the locksmiths were on their way. He had no way of getting advice about his rights, however. ‘I was also shocked that my phone was taken with personal data on it’. His son was ‘in distress and crying’ throughout. That ‘further added to the serious harm and distress’ being caused to him. He was too scared to leave his flat to use a phone elsewhere because Mr Fishwick was telling him the locksmiths were going to break in and his son was ‘petrified that his belongings would be taken’.

‘In fear of the impending break in to my flat and the impact this was having on my son, I then felt my only option was to pay the funds arranged to pay the funds [sic] from my own personal account which has nothing to do with the Debtor. I could only do this if the officer would give me the phone to pay which I did’.

On 20 June 2022 Mr Wolanski sent an email addressed to ‘Complaints’ (an inbox operated by DCBL) (‘the Complaint’). At the head of the email he gave the details of the debtor, attendance address, creditor, the sum outstanding, and the date of the attendance. He asked to make an official complaint ‘with regard to an enforcement that was made against me (Simon Wolanski)…’. An Enforcement Officer ‘attended my residential address in relation to a debt owed by’ 56FR. When he had received the notice of enforcement addressed to that address, he had contacted DCBL on 23 May 2022 by email and had told DCBL that that was not a business address, but his ‘private family home’. He added, ‘The Enforcement Officer unlawfully Enforcement [sic] the Debt which was in the name of [56FR] against me personally’. He was ‘manipulated into making the payment’ by the conduct of the Enforcement Officer.

He gave details of that conduct which are consistent with the account in the complaint (see paragraphs 12-16, above). The ‘only reason’ the Enforcement Officer had taken his phone was ‘as leverage against me to force me to pay. As a result of panic, fear and having no opportunity to contact advice to challenge the information being given to me I felt I had no other option than to make a payment personally which I then did’. The Enforcement Officer had acted unlawfully. ‘He… had no right to enforce the debt against me personally’. He added, ‘If this is dealt with swiftly and the full funds that were taken from me returned then I will close the matter’.

Mr Wolanski made a ‘chargeback’ request to his bank, Barclays Bank (‘the Bank’). It is not clear when he did that. The Bank told DCBL about it on 21 June 2022. On 28 June 2022 DCBL emailed the Bank. They gave details of the judgment, saying it been issued against Mr Wolanski ‘under the Claimant name: [56FR]’. The judgment was not complied with so their client, ABC, instructed DCBL to execute a High Court writ. Notices of enforcement were sent to the Defendant at two addresses, one of which was Flat A. The balance was not cleared so ‘an attendance by a DCBL HCEA was required’. On that visit, ‘the Defendant agreed to make the full payment…using a third party payment link’. A copy of the receipt was attached as evidence ‘which has been signed by the Defendant’.

On 8 July 2022, ‘Complaints’ sent an email to Mr Wolanski. It referred to a phone call that day. DCBL would not be able to continue with his complaint because he had submitted a form E4 to the courts. The email then referred to a chargeback request by Mr Wolanski. DCBL had submitted a defence to that. There was a valid receipt on the case and the correct balance, ‘as stated on the High Court Writ, has been paid by yourself, so this is not something we would be looking to accept as a valid Chargeback’. If the chargeback went through, and the funds were remitted to Mr Wolanski, ‘the balance would be owed and the Enforcement Process, as per regulatory guidelines, would be required to commence again to recover the balance’. The email also referred to Mr Wolanski’s request for footage from Mr Fishwick’s body-worn camera. All enforcement agents wear such cameras on every attendance, but ‘upon review of the agent’s camera, the footage of your attendance was not captured due to a technical issue. I would like to offer my apologies for any frustration this may have caused’. The email asked Mr Wolanski to confirm whether he wanted to pursue the Complaint or his form E4.

Mr Wolanski made a witness statement on 5 August 2022 in his county court complaint against Mr Fishwick. It was signed with a statement of truth. The stated purpose of the witness statement was to indicate which parts of the statement of Mr Fishwick he contested. Mr Wolanski said that Mr Fishwick had confirmed that all of the issues he had complained about had happened. In paragraph 3 he itemised three breaches of the law by Mr Fishwick, one of which was threatening to force entry into Mr Wolanski’s home when he knew that it was a flat, and not commercial premises. Mr Fishwick was also lying about having seen letters from 56FR on the seat of a car: Mr Wolanski had nothing to do with the vehicle R10 LTT (or LLT: both are mentioned). Nor had Mr Fishwick taken control of that car. Contrary to Mr Fishwick’s statement, Mr Wolanski had not said that there any goods belonging to 56FR in the flat. He had not shown 56FR’s bank accounts to Mr Fishwick. 56FR had no bank accounts. There was compelling evidence that Mr Fishwick should be re-trained before continuing to act as an HCEA.

On 10 August 2022 DCBL emailed the Bank. The Bank notified DCBL on 27 July 2022 that a payment of £9967.56 had been ‘charged back’ by the cardholder. DCBL referred to the earlier chargeback in June, and to the defence it had submitted then. DCBL then repeated, word for word, the defence it had put forward in the email of 28 June 2022 (see paragraph 19, above).

DCBL emailed Mr Wolanski on 15 August 2022. Ms Clements, the Complaints and Compliance Manager, had fully reviewed his complaint. She repeated the background, in similar language to the account given in DCBL’s emails to the Bank. She repeated that the notice of enforcement had been sent to Flat A. The HCEA had attended that address ‘provided by the case Claimant as a relevant address for enforcement’. Mr Wolanski had said that he lived there, but ‘it is not uncommon for businesses to trade from residential properties’. The HCEA had identified himself and had explained the procedures to Mr Wolanski. A neighbour had told the HCEA that Mr Wolanski ‘drove a particular vehicle’. He believed the vehicle was ‘an asset of the case Defendant’ and listed it as such ‘on his paperwork’.

Mr Wolanski had disputed the debt and ‘persistently refused’ to pay. Mr Wolanski had shown the HCEA court documents on his phone. The HCEA asked him who owned the phone, believing that it was ‘a company asset and it was clearly used for work purposes’ and gave the phone back to Mr Wolanski. ‘Following further deliberation’ Mr Wolanski had decided to make the payment. The HCEA accepted the payment, and the payment was processed. On 28 June the Bank told DCBL that an application to charge back the payment had been made. DCBL’s defence had been successful. DCBL had then been told about a second chargeback request on 16 July 2022. DCBL did not know its outcome. DCBL rejected Mr Wolanski’s suggestion that the Bank had told him that DCBL had tried to process a second payment on his card. DCBL’s system did not allow that. Ms Clements repeated the account of what had become of the footage from the HCEA’s body-worn camera given by Complaints on 8 July 2022 (see paragraph 20, above). The ‘monies received by DCBL are currently on hold pending the outcome of the chargeback’. Mr Wolanski had spoken to a colleague of Ms Clements’s. I infer from another email in the bundle dated 16 August that that colleague was Mr Tom Ennis, who, it appears, is the HCEO in this case. Mr Wolanski had ‘confirmed’ that were the chargeback to succeed, ‘then the complaint will be resolved’. If the chargeback failed, ‘DCBL have confirmed that as a gesture of goodwill, and in full and final resolution of the matter, a refund of the enforcement fees will be made, this will be £2166.00’. The offer was made ‘solely on a commercial basis, as a gesture of goodwill’.

On 16 August 2022 Mr Wolanski replied to DCBL’s email. He made some points about the car. He said he would send her details of a letter which the Bank had sent him about ‘the attempt to take payment for the second time’. If the chargeback was not successful, he would issue ‘a claim in the county court for the full amount that was charged plus interest. I reserve the right to recover any other losses in relation to this dispute and the visit by Mr Fishwick’. He added ‘In the event that this is the case please can you confirm that you will continue to hold the funds until such time as the court hearing is concluded and that you will not be sending the money to ABC’.

He sent another email to Ms Clements, copied to Mr Ennis, on 19 August 2022. He asked her to ‘get back’ to him ‘regarding the email I sent a few days ago asking if you would continue to hold onto the funds in the event that my chargeback fails and I instigate a money claim online application for unlawful enforcement’.

He emailed Ms Clements again on 25 August 2022. He was hoping that she could reply to his question about ‘what you will do with the principal debt money in the event my chargeback is not successful and the notification I have given that I will issue a claim in County Court for unlawful enforcement’. She replied on 26 August. If the chargeback did not succeed, he would need to discuss with the Bank whether he could appeal. She confirmed that ‘the funds paid to DCBL are still on hold’. If the chargeback succeeded, the money would be remitted to his account. She asked him to let her know if the Bank gave him any information about his options if the chargeback failed, ‘and we can include this in our review of the situation’.

Mr Wolanski raised this issue again in an email of 27 August 2022 to Ms Clements. He had asked her what would happen to ‘the funds paid to DCBL in the event the chargeback failed’. He would issue a claim in the county court ‘for recovery of the full amount’. There would still be a dispute between him and DCBL. ‘I was querying whether the funds paid to DCBL would be transferred across to ABC in this case if the funds would remain on hold with DCBL until after a court hearing had concluded’. She replied on 8 September 2022. The funds were still on hold ‘while the Chargeback is ongoing’. She asked him to keep her informed about its progress. She did not answer his question.

She emailed him on 15 September 2022 to ask if he had heard from the Bank. He replied on 20 September 2022. He had ‘just seen that the chargeback was not accepted’. He would be reviewing his options. ‘Failing that’ he would issue a claim online ‘for recovery of the principal debt and fees – the reason for the claim is that the [HCEA] broke the law when carrying out the enforcement’. That would give him the opportunity ‘to claim for additional costs and compensation for suffering that myself and my son incurred whilst being threatened by untruthful statements made by Craig Fishwick steeling [sic] my phone’. He had ‘not’ been advised by the county court that his form E4 application had been accepted and that there would be an online hearing about Mr Fishwick’s conduct. The ‘not’ might be a typing mistake. To avoid ‘the issue of a claim’, he asked DCBL to review Mr Fishwick’s conduct and to ‘reimburse me for the principal debt plus the fees’. If DCBL did not decide to do that, ‘Alternatively…please can you confirm that if you will be holding on to the principal debt whilst the outcome of the legal process is resolved or if you will be passing the funds to ABC’.

It seems from an undated letter which DCBL sent to Mr Wolanski under the cover of an email dated 30 September 2022 that Mr Wolanski sent a further email to DCBL on 21 September, which I have not seen. The undated letter gave the results of a ‘further review’. The complaint he had made against DCBL and the form E4 proceedings were, as Mr Wolanski had admitted, ‘separate’. They would be dealt with separately. It had been ‘confirmed that the chargeback was not accepted. Therefore, the monies that were on hold cannot be held pending the outcome of the form E4 proceedings. DCBL do not have any legal basis for keeping them longer than is necessary’. DCBL had reviewed the case and the evidence. DCBL asserted that there was ‘no evidence’ to support Mr Wolanski’s allegations against the HCEA. While the form E4 complaint continued, DCBL ‘take these matters very seriously’. DCBL had spent ‘significant time and resource to address these within DCBL’. The form E4 proceedings were pending, which added to the cost. ‘In the light of the above, and to draw the matter to a close, DCBL have made a commercial decision to offer as a goodwill gesture, the return of £9967.56 in full and final settlement of this matter on the basis that all complaint correspondence is concluded together with the withdrawal of the form E4 proceedings you have issued’. Mr Wolanski was invited to sign and date an attached document if he agreed.

He replied on 30 September 2022. He did not agree with everything in the review but said ‘I appreciate your gesture of goodwill to bring this matter to a close’. He intended to sign the document, but wanted to have a quick call first, ‘to understand some of the terms which I do not quite understand’. He suggested a call on the Monday.

The Agreement was signed by Mr Wolanski and Mr D Connor on 12 October 2022. The parties were Mr Wolanski (referred to as ‘the Complainant’) and DCBL. Clause 1 provided that ‘The sum total of [the Amount: the figure was given in numbers and in words, followed by ‘ONLY’] will be returned to the Complainant’. Mr Wolanski agreed by clause 2 to withdraw his form E4 proceedings in the county court. DCBL confirmed that there would be no further ‘High Court Enforcement attendances’ at 56 Fellows Road in relation to the Writ. Clause 4 provided that the Agreement was ‘in full and final settlement of the matter relating to [the Writ] and [the Claim]. The parties agree that no further recourse will be sought by either party’. Once Mr Wolanski had received ‘the payment referred to’ in clause 1, and once the form E4 proceedings had been withdrawn, ‘the matter with DCBL with reference [the number of the Writ] stands closed’. There was no admission of liability. ‘Such payment relates to the Agreement only’ (clause 7). Clause 8 was a confidentiality clause.

The final relevant document is dated 27 January 2025, nearly two months after the hearing in front of the Judge (‘the minutes’). The minutes were signed by Mr Wolanski. The minutes record a meeting of the ‘directors’ of 56FR. Mr Wolanski was present. ‘The chairperson’ (unnamed) recorded that proper notice of the meeting had been given to ‘all the directors’, and that a quorum was present. The existence of an ‘historical debt’ owed by 56FR to ABC and of the associated enforcement fees was noted. As the company had no bank account, Mr Wolanski had paid the amount on 15 June 2022 from his personal account, ‘thereby creating a loan balance with the company’. It was resolved that that transaction be ‘retrospectively authorised’ and that payment 1 ‘be treated as having been made on behalf of the company’. The impact of that was said to be that ‘the company’s liability to ABC ‘is now extinguished’ and the company owed the amount to Mr Wolanski.

I have read the transcript of the hearing before the District Judge on 24 April 2024. Mr Wolanski appeared on behalf of 56FR. ABC was represented by Ms Nyon, a ‘solicitor’s agent’. The District Judge told the parties that he understood Mr Wolanski’s case to be that he had paid the debt. Mr Wolanski confirmed that he had the receipt. The District Judge said that the issue was the charging order but ‘we do not need the charging order because it has been paid, that is a fairly straightforward issue is it not?’ Ms Nyon said ‘He [it is not clear who] says that the claimant made the payment, the bailiff did attend to collect the payment, but at that time, due to the bailiff’s services, the claimant made a complaint against the bailiff and the defendant (inaudible) to refund the payment and judgment debt remains valid and unpaid’.

The District Judge asked Mr Wolanski ‘You paid the bailiff, the bailiff has not paid the defendant, is that what the problem is?’ Mr Wolanski answered, ‘Yes’. He asked Mr Wolanski whether he had ‘given evidence of satisfaction of payment to the defendant?’ He answered, ‘Yes’. Ms Nyon told the District Judge that the bailiff had refunded the payment. The District Judge asked further questions in order to find out what evidence there was that the payment had gone back to Mr Wolanski. It was for the defendant to show that and there was no evidence about it. He said that without such evidence, he was likely to discharge the charging order. He did not understand why the defendant had not had time to put in the relevant evidence, as Ms Nyon asserted, because the case had last been before the court in January.

Ms Nyon referred to the Agreement, describing it as confidential. Mr Wolanski told the District Judge that he had a copy of the Agreement. It was between him personally and ‘DCBL who are the bailiffs’. Mr Wolanski said that the settlement agreement had nothing to do with ABC or with the charging order. ‘If you want the background to why it exists, it was because the bailiffs conducted themselves untowardly’. The District Judge asked if in the Agreement ‘…they are saying that you should get all the money back?’ Mr Wolanski replied, ‘It was not a refund, no, it was a compensation payment to me personally for the way I was treated by the bailiff’.

After some discussion the District Judge eventually clarified that 56FR had paid the Amount to the bailiffs, and that the bailiffs had agreed to pay the Amount to Mr Wolanski personally. In the words of the District Judge, that covered ‘the charging order, any fees and what have you’. The debt owed by 56FR to ABC had been £7731.28. The District Judge asked why the bailiff had paid that, and Mr Wolanski told him that the form E4 complaint had been made. He alleged that the bailiff had stolen his mobile phone, had tried to break into his flat and ‘lied about…’ (the sentence is cut off in the transcript). The form E4 ‘was not anything to do with the right of the bailiff to attend and take the money, it was how he did it…’. That was between Mr Wolanski and the bailiff, ‘Not the company’.

The District Judge clarified that the bailiff had had the money in June. He observed that the bailiff should then have handed the money ‘to the enforcer of the judgment which is ABC...’. Ms Nyon said, ‘Yes, DBC Legal was instructed by the defendant to enforce the charging order and that money under [the Agreement] says to be returned to the complainant which is’ Mr Wolanski. The District Judge pressed her about what had happened to ‘the money that the bailiff had that should go to ABC…?’

The District Judge made the point that if the bailiff had done something wrong and paid compensation that was between the bailiff and that person. ‘That is a matter for them to pay somebody that is alleging that they have done something wrong. But the actual money should still be going to the person who has got the benefit of the bailiff should it not? It is not one and the same money, it is separate money. It is two lots of money, one lot of money which you have paid, that goes in this instance to the defendant and then if it transpires that the bailiffs have done something wrong, then they have done something wrong, not the owner of the legal charge because the bailiff has done something wrong, so they should be paying that money separately, should they not?’

Ms Nyon agreed. She pointed out that ABC was not a party to the settlement agreement. Her instructions were that it was a ‘commercial decision’ to give the money to Mr Wolanski. The District Judge did not understand why, if it was being said that ABC had given the money back, they still needed the charge. They had given the money back which was the subject of the charge. Ms Nyon said that the judgments were still valid. If ABC had given the money back, for whatever reason, the District Judge did not understand why it was still owed to ABC.

Mr Wolanski interrupted because ‘I am not sure if we are going off on a tangent’. The money was paid by 56FR to DCBL, the bailiffs. He added. ‘At that point in time [56FR] had discharged its debt and the bailiffs had got the money and the bailiff’s responsibility was to pass that money onto ABC’. He repeated that point. He had then made a personal complaint against DCBL about the way DCBL had treated him. That was ‘nothing to do with the company’. It was ‘just the bailiffs’ who had agreed to pay him. He had a form E4 hearing listed against the bailiff which could have led to him being struck off and penalised. ‘They did not want that to go ahead so they said, we are going to give you close to ten grand and you have to withdraw that application, which I did’. Mr Wolanski added, ‘That in my opinion does not stop them still having to pay the debt to ABC’.

The District Judge said, ‘No, that is right’. If the issue was between the bailiff and Mr Wolanski ‘only, then the fact that they have paid you that money is between you and the bailiff…That means you still owe the money under the charge, but you have paid it have you not?’ Mr Wolanski said, ‘Yes’. The District Judge’s response was, ‘The bailiff should then pay the money to ABC’. He added that the bailiff would be out of pocket ‘because they have had to pay extra money to compensate you.’ Whichever way it was looked at, the charge had been ‘discharged’. ABC should either have asked the bailiff for the money, or they were ‘party to an agreement to discharge it, in which case either way it is not the claimant’s responsibility any more because it has been paid or there is an agreement to pay it back’. The District Judge asked Ms Nyon to ‘Clarify that if you can’.

ABC’s position was that ‘the money debt remains valid’. The District Judge’s riposte was that ABC should get the money from the bailiff. The bailiff would then either say that ABC had entered into an agreement to give the money back or ‘…yes, here is your money’. If there was an issue whether the bailiff had done what the bailiff had agreed to do, that was an issue between ABC and the bailiff. It was not an issue between all three ‘unless all three get involved…There is either some money to come to ABC from the bailiffs still, or, if it is not that, they have entered into an agreement for it to go back. Either way I cannot see how this charge stands’.

The District Judge discharged the charging order, ‘Upon the claimant having paid the sums to the defendant under a judgment secured by an interim charging order. And upon it being agreed that the claimant paid the sum secured by the judgment by way of charging order in full…’.

The District Judge’s reasoning appears to have been that payment 1 was made to discharge the judgment debt owed by 56FR to ABC, and that it had that effect, and that payment 2 was a separate payment from DCBL to Mr Wolanski which had no effect on payment 1.

The application for permission to appeal was dated 15 May 2024. It was settled by a trainee solicitor employed by ‘DCBL Legal Limited’ (‘DLL’), who was duly authorised to ‘make this Statement’ by ABC. The trainee had had conduct of the case ever since ABC instructed DLL to get a charging order over ’58 Fellows Road’ [sic].

ABC got a judgment in the sum of £7148.38 on a counterclaim in the Claim. ABC instructed the HCEOs DCBL to recover the debt. DCBL instructed HCEAs to recover the debt. A High Court bailiff ‘employed by’ DCBL attended Flat A, 56 Fellows Road on 15 June 2022. That was Mr Wolanski’s home address.

On 15 June 2022 Mr Wolanski paid the Amount to the bailiff ‘from a personal bank account ‘as he felt forced into making the payment in order for the bailiff to leave the Property whereby his family were present’. DCBL then made a ‘commercial decision to refund the sum paid by Mr Wolanski, in part because he was a third party’. Mr Wolanski breached the terms of a confidential settlement agreement between DCBL and him by including a copy in the bundle.

Paragraph 8 continued, ‘The crux of the matter is that a payment was made by a third party, being Mr Wolanski, who was not a party to the Court proceedings under [the Claim]. The payment did not satisfy the Judgment debt and the Defendant did not receive a remittance of the funds for this reason’.

The grounds explained that the parties had agreed an adjournment of the hearing in front of the District Judge. DCBL had instructed an advocate to attend, who ‘did not have an appropriate level of understanding of the substantive matters in the case’. The grounds then briefly summarised the hearing.

The ‘Summary’ stated that the District Judge’s order was a mistake. Neither he nor the advocate understood the case properly. That was an error of fact. The judgment debt was still outstanding, and ABC could take enforcement action. ABC asked for the matter to be relisted for a new hearing, or for an order approving the charging order.

The Judge heard the appeal on 5 December 2024 and gave an ex tempore judgment. Mr Wolanski was in person. Mr Doyle of counsel represented ABC. There were essentially two grounds of appeal: procedural unfairness and that the decision of the District Judge was wrong.

The Judge summarised the facts and the arguments. In paragraph 7 of her judgment, she said that Mr Wolanski had paid the Amount ‘by a personal bank account as he felt he was compelled to make that payment in order for the bailiff to leave the property where his family, in particular his 10-year-old son, were present’. He had made a complaint which led to the Agreement. ABC had then tried to ‘enforce the debt by a different method’, that is, by making the application. ‘In simple terms, [Mr Wolanski] argued that the money had been paid and that he had received separately compensation from …DCBL. [ABC’s] position was that the money in relation to the outstanding debt had not been discharged’.

The Judge summarised the submissions and the decision of the District Judge. She acknowledged that, in the circumstances, he had had a ‘difficult task’. He had thought that the case was straightforward, but had not had all the evidence.

The District Judge had not considered, in particular, the statements of Messrs Davidoff for ABC and Ennis for DCBL. The latter’s evidence was that the debt had not been discharged. The Judge recorded that he accepted that the Enforcement Agent (or bailiff) Mr Fishwick had attended the flat on 15 June 2022, which was Mr Wolanski’s personal address and that ‘the debt was paid in full’ to the bailiff (paragraph 16). Having reviewed Mr Wolanski’s complaint ‘internally and despite there being no evidence available to support his allegations, DCBL took a commercial approach to offer the money paid by Mr Wolanski in the sum of £9,667.56 be returned to him in settlement of the matter between DCBL and Mr Wolanski personally’. That was a pragmatic decision. He added that ‘the return of the funds was [not] an admission of liability and was a confidential settlement agreement to bring…the complaint to a close. For the avoidance of doubt the money judgment remains due to the defendant by the claimant. The defendant was not a party to the agreement and was not restricted by the claim. DCBL informed [ABC] that the funds had been returned to [Mr Wolanski] and [ABC] expressed to DCBL that they would like to proceed with the alternative method of enforcing the money judgment’.

Mr Wolanski argued before both the District Judge, and the Judge, that 56FR had paid the money to DCBL. Mr Doyle had described that argument as ‘ingenious’. The fact that he had signed the receipt as ‘director’ was some support for his argument. But that was not a reference to Mr Wolanski paying the money ‘in his capacity as director. The document simply seeks clarification as to his relationship with the third party’.

Mr Wolanski’s submission was not supported by the evidence before the District Judge. The District Judge was required to decide the issue on evidence, not submissions. The evidence was in form E4. The Judge quoted the passage I have quoted in paragraph 16, above. The Judge added, ‘Thus, on his own evidence, [Mr Wolanski] was paying the debt in a personal capacity’ (paragraph 20).

In paragraph 21 she explained that the only asset which 56FR owned was the ‘very property which is now the subject of argument in relation to the charging order. This explains why the money was “returned” to [Mr Wolanski] when he engaged in his dispute with DCBL’. Mr Wolanski had argued that DCBL should have paid ABC. ‘However, they could only do so if they had received money from [56 FR]’. But Mr Wolanski’s ‘own evidence submitted to DCBL was that he had paid money which, “Had nothing at all to do with the debtor”. Thus, the debt was not discharged’.

The Judge then referred to a paragraph from the 31st Edition of Chitty on Contracts. The passage has been garbled in transcription. Its effect is that when a third party who is not jointly liable for it pays a debt, the debt is not discharged unless the payment is made by the third party as agent for or on account of the debtor. Prior authority or later ratification is necessary. If the creditor repays the sum to the third party, the payment is at an end, and the debtor cannot later purport to ratify the payment. ‘The debtor, therefore, becomes again responsible’.

In paragraph 24, she added that if she accepted Mr Wolanski’s argument that he had paid the debt with the authority of 56FR, ‘then, on his own case, he must have received the payment in that capacity. That shows the fallacy of the submission’.

She then considered the effect of the Agreement. Mr Wolanski had told the District Judge that this was ‘not a return of the monies but “compensation”’. He had acknowledged that its wording was ‘sloppy’. Both the covering letter and the Agreement ‘specifically’ referred to ‘the return’. That word meant what it said. It was not ‘sloppy drafting’. It was the return of the money which Mr Wolanski had ‘paid in his private capacity’. It was perhaps because Mr Wolanski realised ‘the attendant difficulty’ that he had tried to argue that he had made the payment ‘with the direct authorisation’ of 56FR (paragraph 27).

Mr Wolanski had not persuaded her that payment 2 was compensation. That ‘defies logic’. She gave four reasons. Payment 2 was ‘the exact same sum’ as the judgment debt. It was paid because Mr Wolanski told DCBL that it was ‘from monies which had no bearing on’ 56FR.

The Agreement used the word return ‘not once but twice’. If it was not personal funds DCBL had a statutory obligation to pay the money to ABC. It had not done so, because it considered that the money was ‘personal funds’ (paragraph 28).

She referred to other parts of District Judge’s reasoning. Her overall conclusion was that he had not understood ‘the issue because he had not considered all the evidence and had construed the bailiff as [ABC’s] agent’ (paragraph 33). ABC were entitled to enforce the judgment debt. The District Judge had wrongly discharged the interim charging order. It was also unfortunate that one of the recitals to his order was wrong. It had not been agreed that the judgment debt had been satisfied (paragraph 34).

There is little, if any dispute about the relevant law. This court has recently considered the legislation governing writs of control and the powers and duties of HCEOs and HCEAs in three appeals: Court Enforcement Services Limited v Marston Legal Services Limited [2020] EWCA Civ 588; [2021] QB 129 (‘Marston’); Bone v Williamson [2024] EWCA Civ 4; [2024] 1 WLR 3235 and Burton v Ministry of Justice [2024] EWCA Civ 681; [2025] KB 66 (‘Burton’). On analysis, this case does not depend on the details of the legislative scheme. It is only necessary to give the briefest outline.

A writ can only be enforced by using the procedure in Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 (‘the Act’). Only an HCEA may use that procedure. So the HCEO to whom the relevant writ is addressed must appoint an HCEA to use that procedure to enforce the writ.

Paragraph 50(1) of Schedule 12 provides: ‘Proceeds from the exercise of an enforcement power must be used to pay the amount outstanding’. It is clear from paragraph 50(2) that ‘proceeds’ includes ‘money taken in exercise of the power, if paragraph 37(1) does not apply to it’. Marston shows that those proceeds can include what Lord Leggatt called ‘bank money’. It is common ground in this case that the card payment was ‘bank money’ for this purpose. A creditor is strictly liable for the misbehaviour of an HCEA appointed to enforce that creditor’s judgment debt (Burton).

There are three amended grounds of appeal. It is not clear when they were amended.

Mr Kessler submitted that payment 1 immediately discharged the judgment debt owed to ABC, ‘even if DCBL misappropriated it’. In answer to a question from Newey LJ he initially said that if an HCEA went to a person who was wholly unconnected with the debtor, and extracted a payment from that person, the HCEA had to pay that sum immediately to the judgment creditor. The HCEA had no power to ‘hand the money back’ in those circumstances, without an order of the court.

He later qualified that answer by conceding that the position might be different if cash had been handed over and immediately returned. The analysis was ‘slightly complicated’. It was not immediately obvious that such a payment would discharge the judgment debt. He also accepted that if a third party had paid under duress, he could get that payment back because the HCEA ‘has no lawful power to take control of anyone’s goods but the debtor’s’.

Newey LJ asked whether, if a person intended to pay the judgment debt, he could pay and then ask for a chargeback. Mr Kessler said that he did not know enough about banking law to answer that question. If an HCEA went to the wrong address and extracted a payment from a third party his remedy would be a claim for unjust enrichment. The money should be held in the HCEO’s bank account, so the HCEO was the correct defendant.

The writ commanded the HCEO ‘immediately after execution’ to pay the proceeds of enforcement to ABC, and paragraph 50(1) of Schedule 12 requires the proceeds of enforcement to be used to pay the amount outstanding. The HCEO and the HCEA were both ABC’s agents for the purposes of collecting the debt. The HCEA is not just the agent of the creditor but also an officer of the court (paragraphs 79-81 of Marston).

There was no need for Mr Wolanski formally to authorise himself to pay the judgment debt for ABC. Mr Kessler relied on Mr Wolanski’s witness statement dated 25 January 2024 as evidence that Mr Wolanski paid the debt for ABC. He also relied on the passage from Mr Ennis’s evidence quoted by the Judge in paragraph 16 (see paragraph 55, above).

Newey LJ suggested that Mr Wolanski’s own case (in form E4) was that he had paid the Amount in a personal capacity. Mr Kessler said that as a director Mr Wolanski could pay a sum from his personal account; he would be paying in a personal capacity, but ‘it was wrong to say that was not the act of the company’. Mr Wolanski had the power to authorise himself to make a payment for the company. The question was whether he had done so. The very same act of payment was the authority to pay. No formality was necessary. This was distinct from Mr Wolanski’s form E4 and the Complaint which both concerned the conduct of the HCEA.

A judgment debt cannot be created by agreement. The Agreement could not undo the payment of the judgment debt. The judgment debt was extinguished by payment 1. DCBL had no power to ‘return’ payment 1, and, as a matter of law, they should not have been holding onto it. The fees belonged to the HCEO. The complaint proceedings were brought by Mr Wolanski and not by 56FR. DCBL could not ignore the terms of the writ. It was a breach of paragraph 50 of Schedule 12 to return the Amount. The premise of the Agreement was that payment 1 discharged the judgment debt. The Agreement severed any link between payment 1 and payment 2. Mr Wolanski could ratify payment 1 today, if necessary.

It is unnecessary for me to say much about Mr East’s submissions. He took us carefully through the documents and the relevant authorities. The question was what Mr Wolanski had done. That could be inferred from the documents. He had paid the Amount personally, and not on behalf of 56FR. It was also a reasonable inference that nothing had happened to the money during the relevant period. There was a lacuna in the scheme if money was paid by a third party who was not authorised by the debtor to make the payment. The debt could only be discharged by the debtor or by a person authorised by him. The Agreement was between Mr Wolanski and DCBL. Neither ABC nor 56FR were parties to it.

The minutes (see paragraph 33, above) were the only objective evidence of ratification. They post-date the Judge’s judgment. The language of the minutes did not support the argument that Mr Wolanski made payment 1 on behalf of 56FR. The inference to be drawn from the minutes was that Mr Wolanski had made payment 1 personally. There were no arguments before either the District Judge or the Judge that payment 1 had been ratified later. The ratification recorded in the minutes was too late because the money had already been returned.

The chargeback requests showed that it could not be the case that the debt was instantaneously discharged by payment 1. Any public policy arguments fell away if payment 1 was not made by the debtor.

This case very much turns on its own facts. The parties dispute some of the details. In the absence of the footage from Mr Fishwick’s body-worn camera, which DCBL should have been able to provide, precisely in order to resolve disputes about the conduct of Mr Fishwick, I have no reason to doubt Mr Wolanski’s account of the events of 15 June 2022 given in the contemporaneous documents. The Judge was not shown all the contemporaneous documents, but she saw the crucial documents. The contemporaneous documents as a whole give a picture which is compellingly clear on the point which matters in this case.

Mr Wolanski did not suggest, at any stage in his complaints or in the correspondence which led to the Agreement, that he had made payment 1 on behalf of 56FR. On the contrary, his consistent position was that he had made payment 1 personally, and that he had made it unwillingly because he and his young son were intimidated by Mr Fishwick’s threat to break into Flat A. It simply does not lie in his mouth, after the conclusion of the Agreement, and after his acceptance of payment 2, to assert the contradictory position that, far from making the payment personally, he made it on behalf of 56FR in order to discharge the judgment debt. The submission that DCBL were obliged by the Writ immediately on 15 June 2020, or within 14 days, to pass payment 1 to ABC is (at best) unrealistic. Mr Wolanski immediately made two successive chargeback requests. The second was not dismissed until 20 September 2022, over three months after he made payment 1. It seems to me likely that DCBL could do nothing with payment 1 until the Bank refused the second chargeback request.

Further, Mr Wolanski repeatedly asked DCBL for assurances, while the chargeback requests were pending, that they would not pass payment on to ABC if the chargeback requests failed. Mr Wolanski’s actions, far from showing that he intended to make, or made, payment 1 on behalf of 56FR, and in order to discharge the judgment debt, show no such thing. His later actions, as evidenced by the contemporaneous correspondence, show that he was indignantly protesting about the extraction of payment 1 from him personally, and that he was doing all he could to ensure that payment 1 did not reach ABC.

I reject the submission that payment 1 immediately discharged the judgment debt on these facts. The correspondence suggests that, because of Mr Wolanski’s actions, DCBL were not able to do anything with payment 1 until the Bank rejected his second chargeback request round about 20 September 2022. The correspondence also shows that Mr Wolanski did not want payment 1 to be passed to ABC if the Bank rejected his second chargeback request.

DCBL did not help their position by their defensive response to Mr Wolanski’s complaints. They insisted, at first, that Mr Fishwick’s conduct was unimpeachable and that payment 1 had been lawfully made and that it did discharge the judgment debt (or would have done, if it had been paid). Mr Wolanski’s consistent argument was that he made payment 1 personally in order to make Mr Fishwick go away (and to stop him breaking into Flat A) and not on behalf of 56FR to discharge the judgment debt. Once DCBL accepted that argument (whether tacitly or by implication) it had no legal right to keep payment 1. Payment 1 had not been made for or on behalf of the judgment debtor; and Mr Wolanski, who had made the payment personally, wanted it back. Mr Kessler relied on the evidence quoted by the Judge in paragraph 16 of her judgment (see paragraph 55 above). In the overall context, that passage cannot bear the weight which Mr Kessler puts on it.

‘Proceeds from the exercise of an enforcement power’ in paragraph 50(1) of Schedule 12 must mean ‘the proceeds from the lawful exercise of the enforcement power’. Far from being required to hold onto payment 1, DCBL was obliged to return it to Mr Wolanski. I agree with the Judge’s interpretation of the Agreement. The use of the word ‘return’ is not an accident; nor is the fact that the amounts of payment 1 and payment 2 are the same. The Agreement reflects the legal position. If, as Mr Wolanski repeatedly asserted, and, as DCBL must eventually have accepted, payment 1 was paid by Mr Wolanski personally and was not paid to discharge the judgment debt, DCBL had no option but to ‘return’ it. I would therefore reject the submission which Mr Kessler made when he first answered Newey LJ’s question (see paragraph 69, above). To be fair to him, he immediately qualified that answer (see paragraph 70, above). I also reject the submission that payment 2, far from being the ‘return’ of payment 1, was a distinct payment of compensation which recognised that Mr Fishwick had misbehaved. That is not what the Agreement says.

If payment 2 was the return of payment 1, any later ‘ratification’ of payment 1 was too late. It is not therefore necessary to decide whether or not the minutes are evidence of a later ratification of payment 1 by 56FR.

For those reasons I would dismiss this appeal.

I agree.

I also agree.