Duer v Frazer

JurisdictionEngland & Wales
Date2001
Year2001
CourtQueen's Bench Division
Queen's Bench Division Duer v Frazer 2000 March 16, 20; April 19 Evans-Lombe J

Execution - Foreign judgment - Writ of execution - Application for permission to issue writ of execution more than six years after judgment registered - Exercise of court's discretion - CPR Sch. 1, RSC Ord 46, r 2

In March 1984 the claimant obtained judgment against the defendant in proceedings in Germany. That judgment, which remained enforceable in Germany for 30 years after it was given, was duly registered in England four months later. Inquiry agents hired by the claimant discovered that the defendant was living on a small Caribbean island, on which he owned a small plot of land, and one of their representatives met the defendant in 1989. No further steps were taken to enforce the judgment until 1994 when the claimant hired new inquiry agents. Only in 1997 did the defendant become aware that the claimant was still seeking to pursue execution of the judgment. The claimant applied to the court for permission to issue execution of the judgment pursuant to RSC Ord 46, r 2 since more than six years had elapsed since the date of the judgment. Permission was granted at a without notice hearing, but was subsequently discharged on the defendant's application.

On the claimant's appeal—

Held, dismissing the appeal, that the court would only extend time beyond the six-year period provided for by RSC Ord 46, r 2 where it was demonstrably just so to do; that the burden of proof to establish that it was just to do so rested on the judgment creditor; that, whilst every application turned on its own facts, the court would have regard to the reasons given for not issuing judgment during the initial six-year period and to any prejudice suffered by the judgment debtor as a result of the delay, including in particular any change of position by him; that for the purposes of RSC Ord 46, r 2 there was no reason to treat the judgment of a foreign court which had been registered in England any differently from that of an English court; and that since the claimant had failed to satisfy the court that the interests of justice required it to exercise its discretion to extend time the master's order would be affirmed (see post, pp 925B–F, 926G).

Dicta of Slade LJ in National Westminster Bank plc v Powney [1991] Ch 339, 363, CA applied.

The following cases are referred to in the judgment:

BP Properties Ltd v Buckler [1987] 2 EGLR 168, CA

Lamb (W T) & Sons v Rider [1948] 2 KB 331; [1948] 2 All ER 402, CA

Lougher v Donovan [1948] 2 All ER 11, CA

Lowsley v Forbes (t/a L E Design Services) [1999] 1 AC 329; [1998] 3 WLR 501; [1998] 3 All ER 897, HL(E)

National Westminster Bank plc v Powney [1991] Ch 339; [1990] 2 WLR 1084; [1990] 2 All ER 416, CA

The following additional case was cited in argument:

Evans v Bartlam [1937] AC 473; [1937] 2 All ECR 646, HL(E)

APPEAL from Master Hodgson

By notice of appeal dated 9 February 2000 the claimant, Anne-Margaret Duer, appealed from the order of Master Hodgson dated 3 February 2000 setting aside, on the application of the defendant, Peter Nigel Frazer, the further writ of execution issued on the without notice application of the claimant by Master Hodgson on 19 April 1999 in respect of the judgment in favour of the claimant entered by the Higher Hanseatic Regional Court of Hamburg on 20 March 1984 and registered in England by order of Master Topley dated 24 July 1984.

The appeal was heard in private but judgment was given in open court.

The facts are stated in the judgment.

Catherine Newman QC and Richard Morgan for the claimant.

Jonathan Harvey for the defendant.

Cur adv vult

19 April. The following judgment was handed down.

EVANS-LOMBE J

1 This is an appeal against the order of Master Hodgson of 3 February 2000 whereby he discharged his order made without notice giving the claimant permission to issue execution to enforce a judgment dated 20 March 1984 of the Higher Hanseatic Regional Court of Hamburg (to which I will refer as “the German judgment”) against the defendant registered pursuant to the order of Master Topley made on 24 July 1984.

2 The background facts from which the issues in this appeal arise are as follows. The claimant is a German national. The defendant is a former British army officer. In late 1970 the claimant and the defendant started an antiques business in Germany. They later formed a close relationship. It is the claimant's case that in order to assist the defendant to establish the business she advanced to the defendant a loan of DM250,000. It is her case that when the relationship broke up and the antiques business was liquidated she was never repaid that sum. In 1983 she commenced proceedings in the German courts against the defendant. Initially those proceedings failed but succeeded on appeal when judgment was entered for the claimant in the Higher Hanseatic Regional Court of Hamburg on 20 March 1984. The defendant's appeal from that judgment to the Federal High Court was summarily dismissed.

3 After the dissolution of the antiques business the defendant went to live on a property owned by him in Devon. His main source of income was an army pension. On 24 July 1984 on the application of the claimant, the German judgment was registered in England by order of Master Topley pursuant to the Foreign Judgments (Reciprocal Enforcement) Act 1933. By this date the defendant had sold the property in Devon and moved to the island of Nevis in the West Indies. The claimant then applied to garnishee the defendant's army pension. In response the defendant applied to set aside the registration of the German judgment on the grounds set out in an affidavit sworn by him on 8 November 1985. That affidavit showed as his address, “Zetland Plantation, Gingerland in the Island of Nevis, West Indies”. The defendant made his application in person but it was dismissed by Master Topley on 13 November. The claimant's garnishee proceedings were withdrawn in 1986 because it was discovered the that it was not possible to garnishee an army pension.

4 On 1 July 1986 a plot of land on Nevis was vested in the defendant “as trustee” by a company called North Shore Estates Ltd of which he was a small shareholder. The defendant's explanation for this transaction is set out in his most recent witness statement. It is the defendant's case that at this time he formed a partnership with a prominent citizen of the island to develop a plot of land on which the defendant wished to build a house for himself. The defendant's partner had funds which would have enabled them to build other houses on the site. The defendant's name appeared on the title to the land as trustee for the purpose of this partnership and also for the purpose of avoiding the payment of a local “alien land holding tax” which would otherwise have been payable. The defendant paid...

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2 books & journal articles
  • FOREIGN LAW IN DOMESTIC COURTS
    • Singapore
    • Singapore Academy of Law Journal No. 2017, December 2017
    • 1 Diciembre 2017
    ...Act (Cap 264, 1985 Rev Ed). 94[2009] 2 SLR(R) 166. 95Westacre Investments Inc v Yugoimport-SDPR[2008] EWHC 801 (Comm). 96Duer v Frazer[2001] 1 WLR 919 and The Society of Lloyd's v Jean Pierre Longtin[2005] EWHC 2491 (Comm). 97[2012] EWCA Civ 980. 98[2012] EWCA Civ 1624. 99Howden North Ameri......
  • Practical Problems Regarding the Enforcement of Foreign Money Judgments
    • South Africa
    • South Africa Mercantile Law Journal No. , August 2019
    • 16 Agosto 2019
    ...EWCA Civ 1668 (24 Nov 2003) in par 107.70 National Westminster Bank plc v Powney & Others [1991] Ch 339 (CA) at 361.71 Duer v Frazer [2001] 1 WLR 919 (QB) at 925. In this case, over f‌i fteen years had lapsed since the relevant foreign judgment had been registered in England and the Court d......

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