Sucden Financial Ltd v Fluxo-Cane Overseas Ltd
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE TEARE |
| Judgment Date | 04 December 2009 |
| Neutral Citation | [2009] EWHC 3555 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: 2009 folio 299 |
| Date | 04 December 2009 |
[2009] EWHC 3555 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION COMMERCIAL COURT
Before: Mr Justice Teare
Case No: 2009 folio 299
MR N EATON (instructed by Holman Fenwick Willan) appeared on behalf of the Claimant
MR S SNOOK (instructed by Hill Dickinson) appeared on behalf of the Defendants
Approved Judgment
: On the question of costs, I can understand fully why it is that the claimants say that they are entitled to the costs of their claim in addition to the costs of the application. However, it appears to me that this matter has already been considered by Beatson J. The order records that the determination of liability for those costs was adjourned. I am told by Mr Snook that the note that those instructing him have is that Beatson J said that the action is not at an end and further costs are adjourned.
It therefore seems to me that Beatson J took the view that in circumstances where a counterclaim was anticipated the action was not at an end and he was, in effect, reserving these costs until the determination of that counterclaim, albeit it had not been pleaded at that stage. I therefore consider that I cannot make my own judgment on that matter. But when the matter does come to be debated, then of course Mr Eaton will be able to advance the argument which he has today.
This is an application by the second defendant to set aside an order made by Master Kay on 25 November this year, pursuant to part 71 of the CPR. It is said that the order ought not to have been made because it was contrary to paragraph 3 of the order made by Beatson J on 20 November.
The order gives summary judgment for a large sum of money and paragraph 3 provides:
“Enforcement under paragraph 1 above shall be stayed until 4 December 2009 to give the second defendant opportunity to apply to the Court of Appeal for permission to appeal and a further stay.”
A number of points are taken but it is first necessary to refer to CPR part 71.1 which provides as follows:
“This part contains rules which provide for a judgment debtor to be required to attend court to provide information, for the purpose of enabling a judgment creditor to enforce a judgment or order against him.”
It has been submitted by Mr Snook, on behalf of the second defendant, that the meaning and effect of that provision could not be clearer. It is that an order under part 71 is part and parcel of the process of enforcement.
I do not accept that submission. Paragraph 1 of part 71, which I have just read, expressly states that the purpose of obtaining the order provided by Rule 71 is to enable a judgment creditor to enforce a judgment order against him. That means that it is an order which puts the judgment creditor into a position where he might thereafter be able to enforce the judgment but it does not seem to me to be part and parcel of the process of enforcement.
The order, when made, carries a penal notice so that it is clear that the order must be obeyed but the fact that there is provision for enforcement of that order does not mean that the order is part and parcel of the process of enforcing a judgment. Rather it is, as I have said, anterior to such process.
Therefore it does not appear to me that paragraph 3 of the order of Beatson J was a bar to the obtaining of this order. A number of other points were taken. The first was that the claimant was not a judgment creditor within the meaning of this part of the rules. CPR 70.1(2) defines a judgment creditor as a person who has obtained or is entitled to enforce a judgment or order.
It was submitted that because of paragraph 3 of the order of Beatson J the claimant did not fall within that definition. Again, I cannot accept that submission. A judgment creditor can mean a person who has obtained a judgment or order. It can also mean a person who is entitled to enforce a judgment or order. It is clear that the claimant was a person who has obtained a judgment or order. He was therefore a person who was entitled to apply for an order under CPR 71.
Mr Snook also referred to the decision of the Court of Appeal in White Son &Pill v Stennings [1911] 2 KB 418. That was a case in which a judgment creditor obtained a garnishee order before expiry of the time given by the judgment for payment of the money. The Court of Appeal held that execution proceedings could not be issued before the time for payment of the money under the judgment had expired.
It was argued in that case that a garnishee order was not execution but merely a mode by which the judgment creditor obtained payment of the debt. That argument was not accepted and the court held that garnishee proceedings were a species of execution.
Mr Snook sought to argue from that case that just as a garnishee order was held to be a species of execution, so an order under part 71 should be regarded as a species of execution and hence a form of enforcing the judgment of Beatson J.
I do not accept that submission either. It seems to me that there is a distinction between steps which are taken to enable a judgment creditor to enforce a judgment and action which is a species of execution. A garnishee order, in my judgment, falls clearly into the category of a species of execution. For those reasons I consider that Master Kay had jurisdiction to make the order he did and that paragraph 3 of the order made by...
To continue reading
Request your trial
- Sucden Financial Ltd v Fluxo-Cane Overseas Ltd
-
Euroption Strategic Fund Ltd v Skandinaviska Enskilda Banken AB
...negligence in ED & F Man Commodity Advisers Ltd & Another v Fluxo-Cane Overseas Ltd & Another [2010] EWHC 212 (Comm), Sucden Financial Limited v Fluxo-Cane Overseas Limited [2010] EWHC 2133 (Comm) and Marex Financial Ltd v Fluxo-Cane Overseas Ltd [2010] EWHC 2690. Perhaps surprisingly, no r......
-
Camarata Property Inc. v Credit Suisse Securities (Europe) Ltd
...should be given, and have concluded that there was no distinction relevant to the cases before them: see, for example, Sucden Financial v Fluxo-Cane Overseas Ltd, [2010] EWHC 2133 (Comm) at para 54; and Marex Financial Ltd v Fluxo-Cane Overseas Ltd, [2010] EWHC 2690 (Comm) at para 93. In ......
-
AIlied Irish Bank Plc v King
...Bank. respectively, namely White, Son & Pill v. Stennings [1911] 2 K.B. 418; and, Sucden Financial Ltd. v. Fluxo-Cane Overseas Ltd. [2009] EWHC 3555 (Q.B.). 8 He also considered Finlay Geoghegan J.'s dictum in Allied Irish Banks plc v. O'Reilly [2015] IECA 209 which the Bank contended su......