Farmer loses appeal against bank's appointment of receiver over EU BPS payments

A Co Meath farmer has lost his Supreme Court appeal over a bank’s appointment of a receiver over annual payments of €170,000 to him under the EU Basic Payment Scheme.

A five-judge Supreme Court ruled ACC’s appointment of the receiver by way of equitable execution over the payments to Mark Rickard was, in the circumstances of this case, “warranted and justifiable”.

In a recently published unanimous judgment, Mr Justice John MacMenamin said ACC had in February 2011 secured judgment for some €1.06m on consent at the High Court against Mark Rickard and his brother Gerard arising from monies advanced to the two in 2007.

ACC later appointed a receiver over certain lands of Mark Rickard in Co Meath over which it had security. Because of the extent of monies owed, it said there would be a shortfall even after sale of those lands and sought to appoint a receiver over payments to be made to Mark Rickard under the EU Single Payment Scheme.

Mr Justice MacMenamin said, in that application, ACC told the court it seemed Mark Rickard had received payments of some €162,656 under that scheme.

The evidence, he noted, was to the effect the SPS payments were not his sole source of income and it had been represented to ACC the brothers’ farm business was expected to generate some €750,000 through the sale of wheat, oats, maize, straw and oil seed rape.

The High Court agreed to appoint a receiver over the SPS payments to Mark Rickard and, as a result, ACC received the sum of €525,877 between 2011 and 2015.

After the SPS payments scheme was replaced by the EU Basic Payment Scheme, ACC successfully applied in 2015 to vary the order appointing the receiver so it would apply to payments made to Mark Rickard under the new scheme. It said some €820,686 was then outstanding under the judgment.

Mr Justice MacMenamin said Mark Rickard’s replying affidavit opposing the variation application raised only legal issues and at no stage suggested the appointment of the receiver had already had a serious effect on his own finances.

Mr Rickard described ACC’s application as “blunt and draconian” but was silent as to his own financial circumstances. He also argued the payments were akin to emoluments or earnings and should not be subject of an order appointing a receiver by way of equitable execution.

After the High Court granted the variation application, Mr Rickard appealed but his appeal was dismissed by the Court of Appeal.

The Supreme Court later agreed to hear a further appeal concerning the extent of the power of a receiver to collect monies over both equitable and legal interests. The appeal also raised issues whether payments made to farmers under the BPS were in the nature of salary and, if so, whether a receiver could be appointed over such payments.

Dismissing the appeal, Mr Justice MacMenamin said the claim advanced by ACC concerning the BPS is very similar to that concerning the SPS to which Mr Rickard had raised no objection in 2011. Mr Rickard had also made no complaint about the effect on him of the earlier order.

In the circumstances, the appointment of the receiver over the BPS payments was “warranted and justifiable”, he ruled.

He stressed that what is “just and convenient” in any one case must be determined by a court on the facts of each case and the courts “must be vigilant to ensure the position of a judgment debtor is not rendered unsustainable by the making of such an order”.

An onus will therefore lie on a judgment debtor to place “full and candid” evidence before the court about the effect of a receiver’s appointment on them, he said. There was no evidence in this case the appointment of the receiver was “unjust”.

The BPS payment, he also held, was not a “salary” payment for work done and is more in the nature of a “grant or entitlement” Mr Rickard had a right to claim from the Department of Agriculture.

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