The Society of Lloyds and Jean Pierre Longtin
| Jurisdiction | England & Wales |
| Judge | MORISON,Mr Justice Morison |
| Judgment Date | 10 November 2005 |
| Neutral Citation | [2005] EWHC 2491 (Comm) |
| Docket Number | Case No: 1996/2505 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 10 November 2005 |
[2005] EWHC 2491 (Comm)
The Hon Mr Justice Morison
Case No: 1996/2505
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Stephen Robins (instructed by Society of Lloyd's) for the Claimants
Patricia Robertson (instructed by TLT Solicitors) for the Defendants
Hearing dates: 4 November 2005
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Morison:
There are several methods of enforcing an English judgment in England [and Wales]. An action on the judgment may be commenced; but this is subject to the Limitation legislation, and, in general terms cannot be done when more than 6 years after the date of judgment have elapsed. The Limitation legislation does not apply to the other methods of enforcement, including obtaining a writ of execution, or charging orders or third party debt orders [garnishee procedure] or a bankruptcy petition. Thus, an English judgment remains open for enforcement after more than six years has elapsed since the judgment was given, although there are different procedural rules which apply to each method of enforcement. This case is solely concerned with enforcement by way of writ of execution. I am not concerned to deal, in this Judgment, with the availability of other means of enforcement of the judgment by Lloyd's against Judge Longtin.
Background
Judge Longtin was one of many Names at Lloyd's who suffered substantial losses. Judgment [Tuckey J.] was entered against him on 11 March 1998 in respect of the premium due from him to Equitas, for £101,409, which with the addition of interest amounted to some £144,000 odd as at 17 August 2005. Enforcement of the judgment was stayed pending an application to the Court of Appeal for permission to appeal against Tuckey J.'s decision. Permission to appeal was refused by the Court of Appeal on 31 July 1998, whereupon the judgment became enforceable, and, subject to the issues which I must determine, it remained enforceable throughout, apart from a period of 6 weeks in January 2001 when Lloyd's agreed to stay enforcement pending consideration of an offer of settlement which they had then made.
In anticipation of the Appeal Court's decision, Lloyd's wrote on 27 July 1998 to Judge Longtin's lawyers in Montreal, Maitre Pierre Sebastien QC, as follows:
"Lloyd's has now obtained legal advice that this judgment will be enforceable in Canada, under Quebec Law, and will pursue enforcement procedures against your client and his assets as and when the pending stay of execution is lifted unless Lloyd's receives from your client by 28 August 1998 his proposals to meet this debt in full."
A further letter of a similar nature was sent to Maitre Pierre Sebastien QC by Lloyd's Quebec Attorneys on 8 October 1999. As I understand it, there was no reply to either.
At the date of judgment, Judge Longtin was resident in Quebec Province, Canada, and at that time he did not have, and apparently has not since had, any assets within this jurisdiction. There are a number of Canadian Names in a similar position to Judge Longtin, who were mostly resident in Ontario. A decision was taken by Lloyd's to seek recognition and enforcement in Ontario first. Lloyd's appreciated that decisions of the Ontario courts would not bind courts in other Provinces, but hoped that they would be regarded as persuasive and of assistance to Names and courts in other Provinces.
On the evidence before me, it appears that the proceedings in Ontario were commenced by Lloyd's in 1999. There were five test cases [with 88 other Names agreeing to be bound]. Recognition of the judgments was accorded by the court of first instance and that decision was upheld on appeal, when recognition was affirmed on 29 August 2001; the Supreme Court refused leave to appeal on 13 June 2002.
On 6 March 2003 Lloyd's obtained a certificate under section 10 of the Foreign Judgment (Reciprocal Enforcement) Act 1933, for the purpose of seeking recognition and enforcement of their judgments in Quebec. The certificate stated, amongst other things that
"The enforcement of the judgment is not for the time being stayed or suspended, that the time available for its enforcement has not expired and the judgment is accordingly enforceable."
On 8 March 2004, Lloyd's commenced an action in Quebec against the defendant seeking recognition and enforcement of the Judgment in Quebec. A defence was filed in January 2005 when, amongst other things, the point was taken that the judgment dated 11 March 1998 was not, or no longer, enforceable in England because more than 6 years had elapsed since it was granted:
"The foreign judgment … cannot be recognised and declared enforceable by the Quebec authority in that, as of March 11, 2004, the foreign judgment was not enforceable any more in England.."
I have heard no argument about the law of Canada or Quebec, but both parties have proceeded on the basis that the law of recognition and enforcement in that Province is governed by Title 4 of Book 10 of the Civil Code of Quebec. The relevant Article for present purposes is Article 3155 which provides, so far as is relevant that:
"A Quebec authority recognises and, where applicable, declares enforceable any decision rendered outside Quebec, except in the following cases:
….
(2) the decision is … not final or enforceable at the place where it was rendered."
As part of their preparation for the trial in Quebec, Judge Longtin's lawyers applied to put before the court some correspondence which had taken place with members of the court's administrative staff. Lloyd's opposed this application but their opposition was over-ruled by the court. The relevant correspondence is in the evidence presented to me. It shows a certain state of confusion as to what the law is. Master Miller, a judicial officer, had said, in his certificate of March 2003 [paragraph 5 above] that "the time available for.. enforcement has not expired and the judgment is accordingly enforceable." This statement could lead to misunderstanding. 'Time available for enforcement' implies that time for enforcement might run out. That is true in relation to an action to enforce the judgment, where the Limitation Act applies, but not necessarily true in relation to seeking to enforce a judgment through the issue of a writ of execution; and not true in relation to enforcing by means of a charging order or garnishment proceedings. Thinking, no doubt, that there was a time bar which effectively prevented enforcement, on 26 August 2004, Judge Longtin's lawyers wrote to Master Miller enclosing a draft of a new certificate for him to sign which said that
".. the time available for enforcement of the judgment has expired as of the 11 March 2004, that no other judgment before the High Court of Justice, Queen's Bench Division, Commercial Court has been obtained to extend the period of enforceability of the judgment and that the judgment is accordingly not enforceable."
I infer that the letter was passed to the Commercial Court Registry and to the clerical staff who work there. One such officer responded saying that a court officer could search the files
"and notify you in writing whether on such and such a date an application to extend [time] has or has not been made and if made, whether a judgment has or has not been given thereon."
The Canadian Lawyers then asked for the files to be searched and in due course a clerical officer wrote stating that
"A search has been made of the Court file in this case. As at today's date no Application to extend the time for enforcement of the Judgment dated 11 March 1998 has been made by the Plaintiff."
Again, the language used is capable of implying that an application for an extension of time was a pre-requisite to the enforcement of this judgment; it was not.
The parties in the Canadian case prepared for trial, which was due...
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