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13 April 2021
This blog post is the part of a series profiling Chris Badger AHCEO, our legal and compliance director, who possesses extensive experience managing specialist and high profile cases on behalf of the Royal Courts of Justice. If you require the services of a High Court Enforcement Officer or would like to receive specialist advice for an upcoming case, please contact Just today on 020 3848 9060
One of the most exciting cases I have been involved with is related to the seizure of a Boeing 767 Passenger Jet owned by Air Zimbabwe, who were our defendant under the writ.
We were instructed by a large commercial law firm who were acting for a claimant in relation to the non-payment of some aviation parts which had resulted in a multimillion-pound judgment being obtained against the airline.
What made this particular matter quite challenging was that the defendant was being pursued by multiple creditors in multiple different jurisdictions throughout the world and in the lead-up to our instruction other aircraft belonging to the airline had been detained in other parts of the world for non-payment of debt.
In a nutshell, they knew that creditors were chasing them for repayment and that always can make enforcement quite difficult because they can either hide their assets or it can become much more difficult to secure them.
This matter predated the 2014 reforms, so it was enforced under the older system and in those days, we were required to obtain permission from the court to execute a writ on a Sunday, which we did.
Prior to that, we made a lot of enquiries and identified that of the fleet that Air Zimbabwe had there are only two commercial airliners that were in service and one of these was a lot older than the other.
From our research, we knew that both of these aircraft were Boeing 767s, a wide-body passenger jet. We discovered that the airline used to operate a flight each week from Harare in Zimbabwe to London Gatwick.
As we identified that they were due to be arriving on this particular Sunday, we made arrangements to contact the airport. When you're dealing with aircraft, that really is the only time you notify anyone outside prior to seizure that you're coming.
The reason you do that is because you have to get the airport authorities and the airport's legal teams to sign off on your paperwork in effect, particularly in the post 9/11 climate, which brought about a number of more robust security measures.
As a result, we held a number of meetings with London Gatwick Airport to detail our activity, in which they signed everything off step-by-step thereby granting the permission to attend on this particular morning, identified as the opportune moment to seize the aircraft.
I should add, we did have one false start because, as I mentioned, Air Zimbabwe were aware that there are a number of creditors pursuing them at this time and consequently, their flight schedule changed regularly during this period.
However, on the occasion in question the Boeing 767 did arrive as scheduled at London Gatwick South Terminal landing at 2:00am in the morning, just before the Christmas period.
As one of the attending officers, once we received confirmation from the airside operations team at the airport, we were escorted on board the aircraft when it finally landed.
Once onboard the aircraft, we explained the situation in full to the onboard crew who were very helpful and introduced me to the captain of the aircraft. At this point, I entered the cockpit of the aircraft to explain that as an officer of the High Court of England and Wales, I would be taking control of the aircraft.
He was absolutely charming gentleman from the start, and I patiently walked him through the purpose of our instruction, that we were intending to seize the aircraft and that according to the law, the aircraft was already seized by the fact we had entered it.
The captain's only real concern was for his crew and passengers and as he had previously dealt with the experience of dealing with enforcement agents in other jurisdictions, he was very helpful.
And so, we fixed a notice of seizure to the inside of the cockpit as well as outside of the cabin and we notified air traffic control that the aircraft had been now be seized under a Writ of Control following the non-payment of an outstanding Judgement.
This took place on a wintry December morning. We then arranged to return to the airport the following day to undertake a meeting with the airline which went very smoothly as their principal concern was for the return of the aircraft itself.
This meeting was attended by the Judgment creditor and their solicitors who appeared willing to agree to return the aircraft to the defendant upon receipt of a promise of payment.
We advised them that that wasn't particularly wise as releasing the aircraft without something more substantial than a verbal promise would permit it to fly off and thereby leave the jurisdiction of England and Wales.
So we continued to conduct settlement discussions over the coming days, but these didn't immediately achieve a successful conclusion. Consequently, we arranged to carry out a full maintenance inspection on the aircraft.
This is important as from the point at which an aircraft is seized it becomes the property of the High Court Enforcement Officer much like any other asset such as a car, or even residential assets that are available for seizure.
However, the difference with seizing an aircraft is that as the High Court Enforcement Officer you become responsible for a multi-million pound, highly specialised item. This means that you then have to take on additional responsibilities, such as making sure that it is the full-service schedule is maintained on for the plane during your possession.
This involves detailed checks which involve technical analysis, engine maintenance and various other mandatory activities to ensure that the aircraft remains compliant with maintenance and service requirements.
Now clearly, not all Enforcement Agents have the experience to deal with these sorts of assets so it is my responsibility to contract the appropriate experts and maintenance teams that can undertake these duties on behalf of the High Court.
What was interesting with this aircraft was that as mentioned, we identified this aircraft as the better of the two 767s but our technical analysis revealed the condition was actually pretty bad.
Infact, when we undertook the maintenance inspection the aviation team identified that the aircraft had what the engineer described as a catastrophic hydraulic leak. So catastrophic that, had the plane departed, it would have been able to take off and retract its landing gear but incur risk upon landing.
The engineer in question reported that the leak was so bad that there was actually a strong possibility the landing gear would not have come back down, which is pretty scary when you take a step back and think about it.
The other development that was important in this case and relates to aircraft seizure more generally was that the aircraft's airworthiness certificate expired whilst it was in our custody.
You can think of this as the aviation equivalent of a MOT. The only difference being that instead of costing a nominal sum, the certification process is actually a multi-million-pound process, so this could have been a concern.
Fortunately, by that time it was becoming clear that the defendant was willing to pay and they eventually paid just before Christmas. That was a great relief to the 300 or so passengers scheduled to depart from London who during this period experienced quite severe delays, eventually resulting in the airline paying for hotel accommodation.
Once the payment had been agreed, we were able to release the aircraft and that's a formal process, which includes the aforementioned certification of airworthiness, allowing the aircraft to fly back to Zimbabwe.
What's interesting to note is that since this period Air Zimbabwe has never flown back into the jurisdiction of England and Wales. So, this was a very interesting enforcement process and I personally learned a great deal from the case which I regularly reference for high value and complex high court enforcement cases
So, what should a claimant know if they plan to seize an aircraft?
Firstly, it is really important to have the right experts and all the relevant information available to you. Looking back on this case, if we knew that the airworthiness certificate was at risk of expiring midpoint of seizure, we may have taken different steps.
Secondly, do consider the full financial implications of seizing an aircraft, including all of the hidden costs involved. In this case, the claimant was fortunate the airline was able to pay because had they not be able to do this, we would have progressed to sell the plane.
To sell the aircraft in this case our claimant would either have incurred a number of upfront costs in order to ensure it remained airworthy or alternatively risk selling the asset for the cost of harvesting scrap material.
Thankfully, this story resulted in a happy ending for all involved. The client was very pleased to recover the unpaid debt, our team built up a great deal of expertise and, while the airline itself faced a payment, it was able to fly the passengers back to Harare without further incident.
Chris Badger AHCEO is a regular speaker at industry events and can provide specialist advice on how to best enforce complex and high value writs of execution under the authority of the High Court of England and Wales.
If you require the services of a High Court Enforcement Officer for a specialist case, please contact Just today on 020 3848 9060