DIPIKA Patel v SARBJIT Singh
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,Sir Anthony Evans,SIR ANTHONY EVANS |
| Judgment Date | 13 December 2002 |
| Neutral Citation | [2002] EWCA Civ 1938 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A2/2002/1727 |
| Date | 13 December 2002 |
[2002] EWCA Civ 1938
Lord Justice Peter Gibson
Sir Anthony Evans
A2/2002/1727
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE JACK)
MR D WOOLGAR (instructed by Messrs Roebuck & Co) appeared on behalf of the Applicant
MR J CROSFILL (instructed by Messrs M H Baharally & Co) appeared on behalf of the Respondent
Friday, 13th _ December 2002
Order 46 rule 2(1) of the Rules of the Supreme Court, contained as it is in Schedule 1 to the Civil Procedure Rules, continues to be in force. It provides:
"A writ of execution to enforce a judgment or order may not issue without the permission of the court in the following cases, that is to say:—
(a) where 6 years or more have elapsed since the date of the judgment or order…"
From that rule it is plain that the court has a discretion whether or not to give that permission. The primary issue raised on this appeal is as to the circumstances in which it is appropriate for such permission to be given.
The background to this dispute is this. The claimant, Miss Dipika Patel, obtained judgment in default against the defendant, Sarbjit Singh, on 8th September 1992 in the sum of £19,649.69. That sum was made up of what are known as clawbacks of commission payments paid by Miss Patel to Mr Singh in respect of insurance contracts which had been procured by Mr Singh but which had then lapsed. On 30th _ September 1994 a certificate of judgment was issued allowing the judgment to be enforced in the High Court, but even before then, according to Miss Patel, on 15th _ July 1994, she had obtained a writ of fieri facias. Nothing was recovered. The judgment remained wholly unsatisfied.
On 1st May 2002 she applied for permission to issue a writ of execution pursuant to Order 46 rule 2(1)(a). Her application was supported by a witness statement which appears to be dated 29th January 2002, though no date is put against her signature. That date appears from the top right-hand corner of the document. In it she said:
"3 On 15 July 1994 I obtained a Writ of Fieri Facias however, the Defendant had left the United Kingdom and was apparently working in Germany. For that reason I was unable to enforce that Writ.
…
5 No change has taken place by death or otherwise in the parties to the above action since the said judgement was obtained.
6 Execution has not been reissued earlier in respect of the said judgement because as set out above the whereabouts of the said Defendant were unknown and it appeared that any attempt to obtain the satisfaction of the said judgement would have been abortive. The said Defendant's residence is now known to me and I am advised and verily believe that he has means to satisfy the said judgement.
7 My mother (Mrs K.C. Patel) and I have recently had contact with the Defendant at a social function and raised the issue of outstanding judgement. I now exhibit DP1 a copy of a letter received [from] solicitors acting for the Defendant. That letter makes allegations that my mother and I were harassing and making threats against the Defendant, those allegations are strongly denied. However, of significance [to] the present application is the assertion that the Defendant has the financial means to commence legal proceedings. In those circumstances I believe he has the means to satisfy the outstanding judgement."
The exhibited letter is dated 22nd October 2001. In it solicitors for Mr Singh complained on his behalf that Miss Patel's mother has "on numerous occasions" harassed and threatened Mr Singh and the solicitors said that they were instructed to commence proceedings for an injunction if Mrs Patel persisted with those actions. The solicitors said that Mr Singh had the financial means to commence legal proceedings for defamation.
Miss Patel's application was heard by Master Ungley on 9th May 2002. We have been supplied with a brief note taken by counsel then appearing for Miss Patel of the Master's judgment. Unfortunately the note does not appear to have been shown to, or corrected, by the Master. So far as relevant it reads:
"This is a very stale judgment. The Claimant's explanation that the Defendant was in Germany and so did not enforce is not a sufficient reason when the Claimant did not attempt to track the Defendant down. The Claimant's arguments would enable any judgment creditor to apply to issue a writ of fieri facias when the judgment creditor loses contact with the judgment debtor."
The note then refers to two decisions including National Westminster Bank v Powney [1991] Ch 339, but unfortunately what is recorded by counsel does not make complete sense. The note then continues:
"I accept I have a discretion to be exercised on principles that enable the court to say that there are exceptional circumstances. In Powney there was delay. Once the original writ of fieri facias was issued in 1994 the judgment creditor thought the judgment debtor was not in the jurisdiction and let matters lie. There are not sufficient reasons to issue out of the six years."
The Master when refusing permission to appeal said:
"The judgement was obtained in 1992, a writ of fieri facias was issued in 1994 but not executed because the judgment creditor thought the judgment debtor was in Germany. There was no evidence of any attempts to trace the judgment debtor and accordingly no material to invoke the discretion to extend time."
Miss Patel appealed. Her appeal was allowed by Jack J. He noted that Order 46 rule 2(1) does not include any guidance as to how the grant or refusal of permission should be determined. He referred also to Order 46 rule 4(1), which provides that an application for permission to issue a writ of execution need not be served on the defendant unless the court so directs. In this case the court did so direct. He referred to rule 4(2), which requires the application to be supported by a witness statement or affidavit containing a number of specified matters including paragraph (b) "stating, where the case falls within rule 2(1)(a), the reasons for the delay in enforcing the judgment or order".
The judge reviewed the authorities. He agreed with what he called the statement of principle set out by Evans-Lombe J in Duer v Frazer [2001] 1 WLR 919 at page 925, paragraph 25, that the court will not extend time beyond six years save where it is demonstrably just to do so. The judge said in paragraph 28 of his judgment:
"I would not interpret that as meaning simply that it must be shown to be just, I would ascribe a stronger meaning to demonstrably than that, such as plainly. I consider that this is necessary to give effect to the judgment of the Court of Appeal in Powney.
As the Master considered that exceptional circumstances must be shown, I conclude that the Master misdirected himself as to the law. It is therefore for me to exercise the court's discretion on the basis of the evidence before me. I regard the claimant's statement as unfortunately brief. That may well not be her personal fault. I think that it is right to understand her position as follows. She took steps to execute the judgment, but she could not find the defendant, who, as she heard, was working in Germany. She then had no further news of him until she met him in the autumn of last year. That is the plain implication of what she does, and does not say, in her statement. It is not contradicted by the defendant who has not relied on any evidence of his own.
Until recently the claimant was acting in person. It is possible that enquiries could have located the defendant wherever he was in Germany. It is also possible that they might not have done so. If he was located, the enforcement of the judgment in Germany would have required the defendant to instruct German lawyers. That could have been an intimidating prospect.
Looking at the defendant's position, the defendant has paid nothing against the judgment; he has done nothing to explain his position to the court; he has not suggested that he has suffered any particular prejudice. I must bear in mind that nearly ten years have passed since the judgment, also that there was a delay of some six months before the application under order 46, rule 2 was issued. I do not think though that the second point carries any real weight.
I regard the question of the proper exercise of the court's discretion in these circumstances as one of difficulty, in the sense that I find the factors are closely balanced. I conclude however that the defendant has demonstrated sufficiently that it is just that she be allowed to take further steps to recover what is due to her."
The judge therefore allowed the appeal and granted permission to issue the writ of execution.
The appeal by Mr Singh to this court is brought with the permission of Latham LJ. Mr Dermot Woolgar, for Mr Singh, submitted that Jack J was wrong to interfere with the exercise of discretion by the Master. He argued that the Master was right to look for something in the circumstances of the case to take it out of the general rule. He submitted that the court should strive for consistency between the approach in section 24 of the Limitation Act 1980, imposing a limitation period of six years for actions upon a judgment, and Order 46 rule 2(1)(a). He criticised the judge's exercise of discretion on the facts, pointing to the inadequacies in the explanation by Miss Patel of the delay, including her...
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