House of Lords
Publications on the Internet|
|Judgments - Lowsley and Another v. Forbes (Trading as L.E. Design Services)
Lord Hoffmann Lord Hope of Craighead
I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend, Lord Lloyd of Berwick. I agree with it and for the reasons which he gives I would dismiss the appeal save as to the question of interest, on which latter point I would allow the appeal and restore the judgment of Tuckey J.
LORD LLOYD OF BERWICK
The Limitation Act 1980 continues to give rise to questions of some difficulty. Section 24 provides:
The word "action" is defined by section 38(1) as including "any proceeding in a court of law."
The first question is whether section 24(1) bars execution of a judgment after six years, or whether it only bars the bringing of a fresh action on the judgment. If the answer is, as the plaintiffs contend, that it only bars a fresh action, the second question is whether, when a judgment is executed after six years, interest on the judgment is limited under section 24(2) to a period of six years before the date of execution. Tuckey J. answered the first question in favour of the plaintiffs, and the second question in favour of the defendant. The Court of Appeal agreed with the judge on the first question but disagreed on the second.
It is scarcely necessary to recount the facts in order to decide these two questions of construction, save only to say that on 2 February 1981 the plaintiffs, Mr. and Mrs. Lowsley, obtained a judgment by consent against the defendant Mr. Forbes, in the sum of £70,000. Mr. Forbes then left the country, whether to seek employment (as he claims) or to evade the judgment need not be decided. By 9 July 1992 the judgment debt plus 11½ years' interest at 15 per cent. had grown to £184,199. The plaintiffs obtained leave from the Master to enforce the judgment under R.S.C. Ord. 46, r. 2(1)(a). Leave was necessary because over six years had elapsed since the date of the judgment. They also obtained a charging order nisi on the defendant's share of the matrimonial home, and a garnishee order nisi over his bank account. Tuckey J. reduced the interest to six years at 15 per cent., making £133,000 in all. The orders for execution were made absolute in that amount. On further appeal, the Court of Appeal restored the order of the master. It was held that interest should run from the date of judgment. The defendant now appeals on both questions to your Lordships.
The principal argument which Mr. Hockman, for the defendant, advances on the first question is that, having regard to the extended meaning of "action," all proceedings for enforcement of the judgment debt are now barred under section 24(1) of the Act. If so, the Master ought not to have given leave to enforce the judgment; and if the judgment debt is itself statute barred, there could clearly be no question of recovering interest.
In support of his main argument, Mr. Hockman took your Lordships back to the origins of the modern law of limitation. Mr. Anthony Mann for the plaintiffs, pointed out that the Limitation Act 1980 is a consolidation Act. He reminded us of what Lord Keith of Kinkel said in the same context as recently as 1995 in Sheldon v. Outhwaite  1 A.C. 102, 140:
Mr. Mann submits that section 24(1) does not give rise to any real difficulty. "Action" means a fresh action. The extended definition must be read in the same light.
I see the force of this objection. But Mr. Hockman argues that the extended definition of "action" is capable of two possible meanings. There is therefore an ambiguity. In any event one cannot do justice to Mr. Hockman's argument without giving some account of the background.
Mr. Hockman showed how at common law there was no limitation period at all for the enforcement of judgments. There was, however, a presumption that a judgment is satisfied within a year and a day. If for whatever reason the judgment creditor failed to issue execution within that period, it was necessary for him to apply to revive the judgment by writ of scire facias. This was a new procedure introduced by the Statute of Westminster II in 1285. Unless the debtor showed cause why the judgment should not be revived, execution would follow.
Until 1833 there was no time limit for applying for a writ of scire facias, although the longer the period that elapsed between the judgment and the application the greater the formalities required. Thus if the judgment was under seven years old, the judgment creditor was entitled to sue out a writ of scire facias as of course. If it was over 20 years, there had to be a rule to show cause: see Tidd: Practice of the Courts of King's Bench and Common Pleas, (1828) p. 1106.
But then in 1833 came the Real Property Limitation Act. By section 40 it was provided:
The reference to "judgment" may seem out of place in the context of mortgages and liens. But the explanation is that under the Statute of Westminster the effect of a judgment was to bind one-half of the judgment debtor's freehold lands. Execution was by writ of elegit, whereby the judgment creditor was put in possession of half the rents or profits. It was natural, therefore, for the Real Property Limitation Act to apply to judgments binding the debtor's real estate as it applied to mortgages and liens.
In two cases which came before the House on appeal from the Court of Exchequer in Ireland in the early 1840s there was much discussion as to the nature of scire facias, and in particular whether scire facias created a new right, or whether it only operated as a continuation of the original judgment: see Farran v. Beresford (1842) 10 C.& F. 319 and Farrell v. Gleeson (1844) 11 C.& F. 702. In the former case the point was left open by Tindal C.J. giving the unanimous opinion of the judges. But the Lord Chancellor, Lord Lyndhurst, said in passing that he agreed with the judges that the plaintiff had acquired a new right by scire facias, and this view was confirmed by his successor, Lord Cottenham, in the second of the two cases, after elaborate argument by the Attorney-General on the one side and the Solicitor-General on the other. At all events there seems to be no doubt at all that in the absence of an intervening writ of scire facias a judgment debt became statute barred for all purposes after 20 years. It was not only too late to bring a fresh action on the judgment; it was also too late to execute. This was a cause of great anxiety in Ireland, as Lord Brougham pointed out in Farran v. Beresford. For it appears that in Ireland judgments were commonly left outstanding for very long periods, apparently as a form of investment.
In Watson v. Birch (1847) 15 Sim. 523, it was argued that the Act of 1833 did not apply to cases where the judgment creditor was seeking to execute on the debtor's personal estate. But this argument was rejected. Shadwell V.C. said, at pp. 524-525:
And so it continued until 1852.
By section 128 of the Common Law Procedure Act of that year the old year and a day rule was abolished. Judgments could be executed at any time within six years without a revival of the judgment by scire facias. Where revival was necessary by reason of a change of parties or lapse of time beyond six years, it was to be done by writ of revivor instead of scire facias, and in straightforward cases by Suggestion on the Roll. But these procedural changes did not affect the absolute statutory bar after 20 years imposed by section 40 of the Act of 1833.
Then came section 8 of the Real Property Limitation Act 1874, which re-enacted section 40 of the Act of 1833 in identical language, save that the period of 20 years was reduced to 12.
The next important landmark was the Supreme Court of Judicature (1873) Amendment Act 1875. Section 16 provided for Rules of Court to regulate the procedure of the High Court of Justice and the Court of Appeal. The Rules were set out in the First Schedule. Order 42 covered execution. Rules 18 and 19 provided as follows:
Mr. Mann argued, and Evans L.J. in the Court of Appeal in the instant case has held, that the Act of 1875 brought about a fundamental change. The old absolute time bar on execution after 20 years, subsequently reduced to 12 years, was replaced by a discretionary bar after six years. Mr. Hockman countered that if this was so, it seems to have come about almost by accident; for if it was intended to make so important a change, one would surely have expected an express provision to that effect. Yet the Act of 1874, which had been passed only the year before, re-enacted section 40 of the Act of 1833 in identical language; and the meaning of that language had been conclusively determined by the House in Farran v. Beresford 10 C. & F. 319 and Farrell v. Gleeson 11 C. & F. 702.
For my part I find great force in Mr. Hockman's argument; and this seems to have been the view of the Divisional Court and the Court of Appeal in Jay v. Johnstone  1 Q.B. 25 and 189 respectively. The question in that case was whether "judgment" in section 8 of the Act of 1874 included personal judgments. This was, of course, the very question which had been decided in 1847 by Shadwell V.C. in Watson v. Birch 15 Sim. 523. It was submitted on behalf of the plaintiff in Jay v. Johnstone that by an Act passed in 1864 judgments had ceased to be an automatic charge on land, and that section 40 of the Act of 1833 had for that reasons been impliedly repealed so far as it related to judgments. If so, then Watson v. Birch was no longer good law.
This submission was roundly rejected. "Do you contend" asked Lord Coleridge C.J. in the course of argument at p. 26 "that there is now no period of limitation in respect of actions on judgments?" He regarded such a result as absurd. It had been argued on the other side that the judicial interpretation of section 40 of the Act of 1833 given by Shadwell V.C. in Watson v. Birch 15 Sim. 523 had been adopted by Parliament in the Act of 1874. Wills J., at p. 29 regarded that argument as "absolutely conclusive." As for the Act of 1864 he said, at p. 30:
The reasoning of the Divisional Court  1 Q.B. 25 was upheld in the Court of Appeal  1 Q.B. 189. Lindley L.J., at p. 190 described Watson v. Birch as a decision which "has been accepted and acted upon by everybody without question ever since . . ." The effect of that decision was, he said, that a judgment could not be enforced after 20 years. "To adopt the argument of the appellants, would be to produce an effect not dreamt of by anyone, and to reverse the decisions of 40 years . . ."
It will be noticed that there was no suggestion by counsel, or by any of the four judges in the Divisional Court or Court of Appeal, that the old law had been swept away by the Judicature Act 1875. Mr. Mann submitted that since indeed there never was any argument on the point, the decision amounts to no more than an assumption as to the state of the law in 1892. But if so, it is an assumption to which I would myself attach very great weight.
The Limitation Act 1939 was an Act to consolidate previous Acts with amendments. Section 2(4) provides:
The first half of this subsection re-enacts section 8 of the Act of 1874. The second half re-enacts section 42 of the Act of 1833. Both Acts were repealed in their entirety. It was not suggested that the Act of 1939 had made any changes in the relevant law by reason only that the Act of 1874 refers to an "action, suit or other proceeding . . . brought to recover any sum of money secured by any . . . judgment" whereas section 2(4) refers to "an action . . . upon any judgment" with an extended meaning of "action" to include "any proceeding in a court of law." The change, if any, is said to have been brought about in 1875.
Thus the position after the Limitation Act 1939 came into force was that a judgment debt became statute barred after 12 years. This was the meaning which the courts had given to the language of section 2(4) of the Act of 1939 and its predecessors for over 100 years. The existence of the statutory bar was not regarded as being in any way inconsistent with a discretionary bar on execution after six years under Ord. 42, r. 23(a) of the Rules of Court, now Ord. 46, r. 2(1)(a).
But then in 1948 came the case of W.T. Lamb & Sons v. Rider  2 K.B. 331. The facts were that the plaintiffs obtained judgment for £500 under Order 14 in December 1938. In March 1946 they sought to enforce the judgment. Since more than six years had passed they needed leave to issue execution under Ord. 42, r. 23(a). The master refused leave. There was no appeal. Two years later the plaintiffs made a further application for leave. This time they were successful. But the master's order was then reversed by the judge in chambers. Nevertheless the judge gave the plaintiffs leave to appeal against the original order refusing leave to execute in 1946. The defendant appealed to the Court of Appeal. It was argued by Mr. Terrell, on behalf of the plaintiffs, that they did not need leave to enforce the judgment, on the ground that Ord. 42, r. 23(a) was ultra vires. A discretionary bar on execution after six years was, he said, inconsistent with the statutory right to issue execution at any time up to 12 years.
The judgment of the Court of Appeal was given by Scott L.J. In the course of his judgment he went over the same historical ground as I have done. But he drew different conclusions. In his view section 40 of the Act of 1833 was concerned with the right to bring a fresh action on a judgment, and not with execution. The right to issue execution was, he said, always regarded as quite separate. At p. 338 he said:
Since "proceeding" in the extended definition did not, in Scott L.J.'s view, include proceedings by way of execution, it followed that the 12 years allowed by section 4(2) of the Act of 1939 was not inconsistent with a discretionary bar on execution after six years.
I agree, of course, that Ord. 42 r. 23(a) was not ultra vires. Mr. Terrell's argument was indeed a bold one, as Scott L.J. observed. But I would not, with respect, agree with the steps in Scott L.J.'s reasoning. In particular I cannot agree that the words "action suit or other proceeding" in section 40 of the Act of 1833 and section 8 of the Act of 1874 were given the narrow meaning to which Scott L.J. refers. It is noticeable that although Scott L.J. cites Watson v. Birch and Jay v. Johnstone he does not refer to Farran v. Beresford or Farrell v. Gleeson.
A month or so before W.T. Lamb & Sons v. Rider  2 K.B. 331 Scott L.J. had given the judgment of the Court of Appeal in Lougher v. Donovan  2 All E.R. 11, a decision which appears to be inconsistent with Lamb v. Rider: see National Westminster Bank Plc. v. Powney  Ch. 339. The explanation may be that the application for a warrant for possession in Lougher v. Donovan was regarded as a separate proceeding, and not as a form of execution. It was not until 1966 that a writ of possession was included for the first time in the definition of writs of execution for the purposes of Order 46.
Be that as it may, the question now is whether it is still open to your Lordships to reconsider the reasoning in Lamb v. Rider. One difficulty is that the reasoning in that case has been treated as correct in subsequent cases. Thus in Berliner Industriebank Aktiengesellschaft v. Jost  1 Q.B. 278 a limitation question arose in relation to a foreign judgment debt. The plaintiffs sought to bring an action on the judgment in this country. Brandon J. held that the action was statute barred. At p. 293, he said:
But much more significant is the Limitation Amendment Act 1980, which by paragraph 2(a) of Schedule 1 reduced the limitation period from 12 years to six. My noble and learned friend Lord Hoffmann suggested in the course of the argument that the final Report of the Law Reform Committee on Limitation of Actions (1977) (Law Com. No. 6923) might throw light on the reason for this amendment. And so it proved. I quote two paragraphs:
The authorities referred to in the footnote to para. 4.14 include W.T. Lamb & Sons v. Rider  2 K.B. 331. The importance of the paragraph is not just that it draws attention to the reasoning in Lamb v. Rider. What it also does is to propose a statutory compromise. All forms of execution were to be removed from the sphere of limitation and instead made subject to a discretionary bar after six years. There would then be no need for the special limitation period of 12 years for bringing suit on a judgment. It was in the light of that proposal that Parliament passed the Limitation Amendment Act 1980, which was in turn consolidated in the consolidation Act of that year.
What is the consequence? It has long been a rule of construction that when Parliament uses a word or term, the meaning of which has been the subject of judicial ruling in the same or similar context, then it may be presumed that the word or term was intended to bear the same meaning: see Barras v. Aberdeen Sea Trawling and Fishing Co. Ltd.  A.C. 402 at 411, and Bennion Statutory Interpretation 3rd ed. (1997) p. 460. It is ironic that one of the decisions often cited as authority for this principle is the judgment of Wills J. in Jay v. Johnstone  1 Q.B. 25, 29. The rule, like other rules of construction, is not in any way conclusive. It is an aid: no more. But in the present case it is entitled to great weight, since the suspect reasoning of Scott L.J. in Lamb v. Rider must have been taken by Parliament to represent the existing law if only because it is endorsed by the distinguished members of the Law Reform Committee who signed the final Report, including the chairman Orr L.J., and the future Lord Griffiths, Lord Bingham and Hirst L.J.
But the matter goes further than that. In Stubbings v. Webb  A.C. 498 the question before the House was whether a claim for damages for indecent assault was a claim for personal injuries within the meaning of section 11(1) of the Limitation Act 1980, thereby reducing the limitation period from six years to three. Lord Griffiths, in giving the leading speech, held that it was clear beyond peradventure that the intention of Parliament was to give effect to the recommendations of the Committee under Tucker L.J., and that therefore the new limitation period, first introduced by section 2(1) of the Act of 1954, was not to apply to actions for trespass to the person, including indecent assault. In support of this approach Lord Griffiths referred to what had been said by Mr. John Peyton (as he then was) in introducing the Second Reading of the Bill.
There is a close parallel with the Limitation Amendment Act 1980. For Lord Hailsham L.C. in introducing the Second Reading of that Bill said: (Official Report (H.L.) 25 June 1979, col. 1218)
Since the point on the Law Reform Committee Report only arose at a late stage, Mr. Hockman was invited to make submissions by way of reply in writing. He points out that Lord Hailsham did not refer to all the recommendations of the Committee, but almost all the recommendations. Similarly Sir Ian Percival S.G. in introducing the Bill into the House of Commons referred to the Explanatory and Financial Memorandum, which in turn referred to the Bill as implementing most of the recommendations of the Committee's Report.
For myself I have, like Lord Griffiths in Stubbings v. Webb  A.C. 498, no doubt that in reducing the limitation period from 12 years to six, Parliament was intending to give effect to the package of recommendations in para. 4.12-4.16 of the Law Reform Committee's Final Report.
Mr. Hockman in his written submissions argues that, even so, the recommendations of the Committee are far from clear. What the Committee seems to have contemplated was some future change in the rules of court so as to put garnishee orders and charging orders on the same footing as fi fa. Since that has not yet been done, those means of execution are still covered by section 24(1) of the Limitation Act 1980.
I do not accept this argument. The question in the end is what Parliament meant by the word "action" in section 24(1) of the Act as extended by the definition in section 38(1). In answering that question, the help to be gained from the immediately preceding history is even stronger in this case than it was in Stubbings v. Webb  A.C. 498. For in that case there was a tension between two rules of construction. On the one hand there was the help to be gained from the Law Reform Committee Report. On the other hand there was the presumption that Parliament intended to give statutory effect to the decision of the Court of Appeal in Letang v. Cooper  1 Q.B. 232 in which it had been held that the predecessor of section 11(1) did indeed apply to actions of trespass to the person. In the present case both rules of construction pull in the same direction. Parliament having given its blessing to W.T. Lamb & Sons v. Rider  2 K.B. 331, it is now too late for your Lordships to hold that its reasoning is erroneous.
Finally Mr. Hockman argued that it would be a reductio ad absurdum of statutory construction if your Lordships were to disapprove the reasoning in Lamb v. Rider, and at the same time hold that it is now the law by virtue of its subsequent adoption by Parliament. But there is nothing new in this. It is Parliament's understanding of the existing law when enacting the Limitation Amendment Act 1980 that matters, not what the law is subsequently shown to have been. As Lord Simon of Glaisdale said in Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg A.G.  A.C. 591, 648:
If common error can make the law, so can parliamentary error.
For all these reasons I would hold that the first question must be answered in favour of the plaintiffs. "Action" in section 24(1) means a fresh action, and does not include proceedings by way of execution. It is unfortunate that the decisive point in the case did not emerge until the very end of the hearing. But having considered the point in the light of Mr. Hockman's written submissions, I am not left in any doubt as to the correct answer. I would therefore uphold the Court of Appeal on the first point, albeit for different reasons.
With regret, however, I cannot agree with the Court of Appeal on the second question. There would seem to be no reason why the relevant words in section 24(2) "no arrears of interest . . . shall be recovered" should not be given their ordinary meaning, so as to bar execution after six years in respect of all judgments. It is what the words say. "Recovered" has a broad meaning. It is not confined to recovery by fresh action.
But the Court of Appeal has held that the limitation to six years interest on judgments applies only in a case of actions on judgments, and not to execution of judgments generally. In support of this construction, the Court of Appeal relied strongly on the fact that subsections 1 and 2 were part of the same sentence, joined only by a comma, when they were enacted as section 2(4) of the Act of 1939. If the first half of the sentence is confined to actions on judgments, Parliament must have intended that the second half of the sentence should be similarly confined. But in my view this does not follow as a matter of language. "Any judgment" in the first half of the sentence means, quite literally, any judgment. There is no warrant for limiting "interest in respect of any judgment debt" in the second half of the sentence to interest in respect of a judgment in an action on a judgment, even if one could think of any good reason why Parliament should so have provided.
Nor is the Court of Appeal's reasoning supported by the legislative history. If it is legitimate to go back to the Act of 1939 in order to construe section 24(2) of the Act of 1980, then it is equally legitimate to go back to the Act of 1833, where, as has already been seen, the provisions which are now contained in section 24(1) and (2) were in separate sections, namely, sections 40 and 42. Section 42 was a freestanding provision which limited the recovery of interest to a period of six years from when it became due. the provision was later applied to judgment debts carrying interest under section 17 of the Judgment Act 1838.
So as to the second question I prefer the decision of Tuckey J., who held that section 24(2) limits recovery by way of execution on all judgments to a period of six years, including the judgment in this case. This makes it necessary to consider a third question, which did not arise for decision in the Court of Appeal. In the event of the plaintiffs failing on either of the two main issues, they argued that the time limit should be extended by virtue of section 32(1) of the Act of 1980. That sub-section provides:
The plaintiffs assert that a fact relevant to their right to recover interest was fraudulently or deliberately concealed by the defendant, that fact being his own whereabouts, and the whereabouts of his assets. Tuckey J. dealt with the point as follows:
I agree with Tuckey J. I find great difficulty in applying the language of section 32 to the time limit prescribed by section 24(2). The recovery of interest by way of execution on a judgment is not a "right of action" within the meaning of section 32(1)(b). Even if it were, I doubt whether the defendant's concealment of himself or his assets would be the concealment of a fact relevant to such a right of action.
On the second question therefore I would allow the appeal and restore the judgment of Tuckey J. But on the first question, on which Tuckey J. and the Court of Appeal were in agreement, I would dismiss the appeal.
It was common ground that in the event of the House deciding the first question in favour of the plaintiffs and the second question in favour of the defendant, the amount overpaid by the defendant is £39,777.48. There will be an order for repayment of that amount, together with interest to be assessed by the Master, if not agreed. The Mareva injunction dated 10 July 1992, the charging order dated 27 September 1992 and the Order for Possession dated 28 January 1994 should all be discharged or set aside. óKóóK
I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend Lord Lloyd of Berwick. For the reasons which he has given, I too would dismiss the appeal on the first question and I would allow the appeal and restore the judgment of Tuckey J. on the second question.
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Lloyd of Berwick. For the reasons he has given, I too, would dismiss the appeal on the first question and I would allow the appeal and restore the judgment of Tuckey J. on the second question.
LORD HOPE OF CRAIGHEAD
I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend Lord Lloyd of Berwick. For the reasons which he has given I too would dismiss the appeal on the first question and I would allow the appeal and restore the judgment of Tuckey J. on the second question.
Lords Parliament Commons Search Contact Us Index
|© Parliamentary copyright 1998||Prepared 29 July 1998|