Patel v Singh

After six years, permission to issue a writ of execution under Order 46 rule 2(1)(a) will ordinarily be refused. The judgment creditor bears the burden of showing circumstances which take the case out of that ordinary position. A proper explanation for failure to enforce during the initial six years, and for any later delay, is central to that exercise. The judgment debtor’s position, including a material change in means, may also be relevant.

The discretion is informed by the overriding objective, but it is not an unweighted balancing exercise. Descriptions such as exceptional circumstances or demonstrably just do not impose separate textual tests; substantively, the question is whether permission is justified despite the lapse of time.

The claimant obtained a default judgment against the defendant in 1992 for unpaid commission clawbacks. An attempted writ of fieri facias in 1994 recovered nothing. The claimant said that the defendant had left for Germany and that she later learned where he lived in England.

In 2002, more than six years after judgment, she sought permission to issue a writ of execution. Master Ungley refused permission. Jack J allowed her appeal and granted permission, holding that it was sufficiently just to permit further enforcement. The defendant appealed to the Court of Appeal.

The central issue was the proper exercise of the discretion under Order 46 rule 2(1)(a) after the six-year period had expired, and whether the claimant’s evidence justified permission.

1. Appeal allowed unanimously. Peter Gibson LJ, with whom Sir Anthony Evans agreed, set aside Jack J’s order and restored the Master’s refusal of permission.
2. Although Order 46 rule 2(1)(a) confers a discretion, the court must begin with the fact that six years have elapsed. Consistently with National Westminster Bank v Powney [1991] Ch 339, that lapse may, and ordinarily will, itself justify refusal. The judgment creditor must show circumstances taking the case out of the ordinary position. This is not a mere balancing exercise in which the elapsed time carries no initial weight.
3. The Master had not misdirected himself by referring to exceptional circumstances. Properly understood, he was asking whether there was something which took the case outside the ordinary rule. Nor should the phrase demonstrably just, drawn from Duer v Frazer [2001] 1 WLR 919, be treated as a separate gloss on the rule’s wording.
4. The rule’s policy is reinforced by Order 46 rule 4(2), which requires the judgment creditor to explain the delay. Relevant matters may include the explanation for not enforcing during the initial six years, delay in seeking permission afterwards, and prejudice or a change of position affecting the debtor. The overriding objective informs the discretionary exercise.
5. The claimant had not discharged that burden. On learning that the defendant was in Germany, she had done nothing to pursue enforcement or to seek legal advice. Her evidence did not explain when or how she learned that he had returned to England, or the more than six-month delay before applying. The absence of evidence of prejudice from the defendant did not cure her deficient explanation.

The appeal was allowed with costs.

• Court of Appeal (Civil Division): by [2002] EWCA Civ 1938, allowed the defendant’s appeal, set aside Jack J’s order and restored the Master’s refusal of permission.
• Queen’s Bench Division (Jack J): allowed the claimant’s appeal from the Master and granted permission to issue a writ of execution.
• Master Ungley: refused permission to issue a writ of execution more than six years after the default judgment.