When is a debt statute barred?

[Rahl]

Do you already have a CCJ?

 

I do have one ccj ( sorry , I did not see you ask earlier) , but it is old and nobody has chased me for it . It is from 1997 and I had an attachment of earnings, but it was never fully repaid . I am interested really only as a 'what if' . It is not so bad thou, in those days after Uni it was more than I could pay (£5k) , but today if they caught up with me I'd be ok . From what I see, the statute of limitations would not protect me . The statute of limitations provides only the barest protection and that is judgements brought upon the previous judgement ( of 97) , not the execution of that judgement .

 

But they are not chasing me as I say , I am just interested in the Laws really .

[rory32]

When was the last payment on the CCJ? Was it over 6 years ago?

[Rahl]

Oh definetely. It would be in 1998 at the latest .

[rory32]

Well then they couldn't actually enforce the CCJ without an order from the court. They would need to come up with a very good reason why the CCJ had not been enforced. So while there is no statute of limitations on CCJ's as such they do need to enforce it within 6 years of judgement or appeal to the court as to why the CCJ should be reinforced. Realistically they would need to give a very good reason as to why they couldn't enforce in order to get a further extension on this period.

[Rahl]

That is what I usually see, vis à vis Patel v Singh & Duer V Frazer

 

Here is the one that I am going by :

 

Lowsley v. Forbes

 

And RIDGEWAY MOTORS (ISLEWORTH) LTD v ALTS LTD (2005) [2005] EWCA Civ 92

 

Lord Lloyd of Berwick Limitation

The plaintiffs, with the leave of the court, had obtained garnishee and charging orders nisi against the debtor 11 and a half years after they had obtained a consent judgment. Held: An application by the judgment debtor to set aside the orders on the ground that they were statute barred under section 24(1) should be refused. A judgment can be enforced after six years, but not any claim for interest on that judgment. Execution was not a fresh action and so was not caught by the statutory restriction. Execution has historically been treated other than as a separate action. s24(1) does not apply to proceedings by way of execution of a judgment in the same action: the expression "action upon any judgment" in s24(1) means, as it did in s2(4) of the 1939 Act, bringing a "fresh action" upon a judgment for another judgment. It did not include the execution of an existing judgment, which could proceed despite the expiration of more than 6 years from the judgment.

 

 

Lowsley and Another -v- Forbes

 

CA

1996-03-21

Lord Justice Evans, Lord Justice Saville and Lord Justice Morritt Limitation

The statutory time limit under the Limitation Act applied only to the right to take substantive proceedings and had nothing whatever to do with the procedural machinery for enforcing a judgment when one was obtained.

 

but :

Well then they couldn't actually enforce the CCJ without an order from the court. They would need to come up with a very good reason why the CCJ had not been enforced. So while there is no statute of limitations on CCJ's as such they do need to enforce it within 6 years of judgement or appeal to the court as to why the CCJ should be reinforced. Realistically they would need to give a very good reason as to why they couldn't enforce in order to get a further extension on this period.

 

Is so often mentioned to be the case , is this standard practice despite Lowsley -v- Forbes ?

 

Is Patel v Singh [2002] EWCA Civ 1938 and Duer v Frazer [2001] at odds with the ruling given by Justice Evans and Lord Lloyd ?, which one do we go by ?

[rory32]

An application by the judgment debtor to set aside the orders on the ground that they were statute barred under section 24(1) should be refused.

Quite correct because section 24(1) isn't relevant. Section 24(1) states

24 Time limit for actions to enforce judgments

(1)An action shall not be brought upon any judgment after the expiration of six years from the date on which the judgment became enforceable.

'Action' is defined as including 'any proceedings in a court of law' (s38(1)) and it has been held that s24 is not concerned with procedures to enforce judgments already obtained but only with the right to bring an action based on an existing judgment (Lowsley V Forbes, [1999] 1 AC 329).

 

Section 24 has no application, therefore, to the enforcement of judgments. These matters are dealt with by the appropriate rules of court.

 

As an example, CPR Schedule 2 CCR Order 26, rule 5 provides that a warrant of execution shall not be issued without the leave of the court where more than six years have elapsed since the date of judgment or order became enforceable, and that application for leave must be supported by an affidavit.

[Rahl]

Thanks , I understand it now, the CPR Schedule 2 CCR Order 26, rule 5 was the missing jigsaw piece .

 

So Forbes went by the wrong bit of legislature then for his defence ? Apart from getting the interest reduced to 6 years ..

 

Or courts need to abide by the CPR wether you (defence) are aware of them or not , and the verdict was wrong ? ( disregarding that he left the country etc argument). Or this CPR is later dated then the forbes case ?

Edited May 7, 2008 by Rahl

[rory32]

The key point is that

The plaintiffs obtained leave from the master to enforce the judgment under RSC 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.

and in so doing so complied with the CPR. They applied for this under RSC Ord 46, r 2(1)(a) (which is part of the Civil Procedure Rules). This states Rule 2 (1) 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;

[rory32]

So Forbes went by the wrong bit of legislature then for his defence ?

Yes because it didn't apply to his case, other than the matter of 6 years interest.

Or courts need to abide by the CPR wether you (defence) are aware of them or not , and the verdict was wrong ?

The verdict was correct because the plaintiffs had obtained permission from the court to enforce the judgement.

[Rahl]

And that line there :

The plaintiffs obtained leave from the master to enforce the judgment under RSC Ord 46, r 2(1)(a).

 

Is where he lost the case , as no other legislature left to prevent the execution of the judgement ..

In effect then , once it has been allowed to proceed past this CPR stage you have lost .

 

But the reason why is not stated , must be because he left the country .. perhaps.

 

So, would the reasons that a plaintiff is given leave be made available to the defendant ?

 

Or is that pre court protocol that is not subject to debate ?

 

I suppose the possible reasons to obtain leave for execution after 6 years are also contained within the CPR somewhere...I am wondering really that because this RSC Ord 46, r 2(1)(a) is so vital as to wether you win or lose, what recourse you have to get it overturned if a judge says to proceed or if you have any kind of input/defence while he makes the decision. Because that is really where the case has to be argued it seems, after that it is just a formality that you lose , like Forbes .

 

Thanks for explaining all this )

Edited May 7, 2008 by Rahl

[rory32]

So, would the reasons that a plaintiff is given leave be made available to the defendant ?

 

Only if the court directs. Remember judgement has already been made against you. What is now being ascertained is whether there is sufficient reason as to why the judgement wasn't previously enforced.

APPLICATION FOR PERMISSION TO ISSUE WRIT

 

Rule 4 (1) An application for permission to issue a writ of execution may be made in accordance with CPR Part 23 but the application notice need not be served on the respondent unless the court directs.

(2) Such an application must be supported by a witness statement or affidavit ---

(a) identifying the judgment or order to which the application relates and, if the judgment or order is for the payment of money, stating the amount originally due thereunder and the amount due thereunder at the date the application notice is filed;

(b) stating, where the case falls within rule 2(1)(a), the reasons for the delay in enforcing the judgment or order;

© stating, where the case falls within rule 2(1)(b), the change which has taken place in the parties entitled or liable to execution since the date of the judgment or order;

(d) stating, where the case falls within rule 2(1)© or (d), that a demand to satisfy the judgment or order was made on the person liable to satisfy it and that he has refused or failed to do so;

(e) giving such other information as is necessary to satisfy the court that the applicant is entitled to proceed to execution on the judgment or order in question and that the person against whom it is sought to issue execution is liable to execution on it.

(3) The court hearing such application may grant permission in accordance with the application or may order that any issue or question, a decision on which is necessary to determine the rights of the parties, be tried in any manner in which any question of fact or law arising in proceedings may be tried and, in either case, may impose such terms as to costs or otherwise as it thinks just.

[Rahl]

Brilliant stuff, thanks for this information. The mist of confusion has finally dissipated ). One other thing I was wondering , like a cca agreement that you can demand to be produced, is there a similar required document that needs to be produced in the circumstances above. I mean something like the original court order . Would that order need to comply with certain criteria , ie legibility of court signatures , court stamp issuing original ccj etc ?

 

And that particular document would that be the duty of the court to require the plaintif's production of, not the defendants ?

 

I should imagine my old ccj court order would be getting a little dilapidated by now .

Edited May 7, 2008 by Rahl

[annoyedagain]

if you acknowledged a debt after 6 years does the clock start up again ?

[The GodMother]

Generally no but you might want to wait a few extra months

[dx100uk]

thread is 7yrs old!

 

 

how are you gauging sb status and what is the debt?