Carrick v Kingston Upon Hull City Council

Permission to issue execution process is required under Rules of the Supreme Court Order 46 only where six years or more have elapsed since the judgment or order. No separate permission is required for a warrant of execution concerning outstanding costs. A creditor is not obliged to accept payment by instalments and may issue execution warrants. Procedural fairness is not denied merely because an application lacks a fixed hearing date where the applicant issued it herself, had time to prepare, and received a fair hearing. Permission to appeal should be refused where the proposed procedural challenges have no realistic prospect of success.

The claimant had outstanding costs orders arising from unsuccessful litigation against two local authorities. Warrants of execution were issued in two cases. She applied to set them aside, alternatively to stay them, alleging that permission had not been obtained and that the warrants were procedurally unfair.

His Honour Judge Heppel QC, sitting at the Hull Combined Court, dismissed those applications on 8 March 2002. The claimant applied to the Court of Appeal for permission to appeal. The central issues were whether the warrants had been unlawfully issued and whether the claimant had been denied a fair hearing because the applications had not been given a fixed date.

The applications for permission to appeal were dismissed. The court agreed with His Honour Judge Heppel QC that the warrants had been properly obtained and that the claimant’s challenges had no possible prospect of success.

1. Execution procedure. Under the court’s understanding of Rules of the Supreme Court Order 46, permission to issue writs of execution was required only where six years or more had elapsed since the judgment or order. No separate requirement had been identified for permission to issue a warrant of execution for outstanding costs. The councils were therefore entitled to issue the warrants.
2. Instalment proposals. The councils were not legally obliged to accept the claimant’s offers to pay the costs by instalments. The court expressed sympathy and hoped that the parties might reach a practical conclusion, including consideration of charging the claimant’s home if necessary. That was a plea for reconsideration, not a legal direction.
3. Fair hearing. Even if no clear fixed date had been given, the applications had been issued by the claimant herself several weeks before the hearing. She was therefore in a position to argue them. Judge Heppel had heard her at length, and there was no substance in the complaint of procedural unfairness.
4. Order. Applications for permission to appeal dismissed.

• Court of Appeal (Civil Division) — On 27 May 2002, Lord Justice Ward dismissed the applications for permission to appeal: [2002] EWCA Civ 1376.
• Kingston upon Hull County Court — On 8 March 2002, His Honour Judge Heppel QC dismissed applications to set aside, alternatively stay, warrants of execution issued for outstanding costs.