The Society of Lloyd's v Longtin

Permission to issue a writ of execution more than six years after judgment is not governed by an inflexible requirement that delay be demonstrably justified or that every unexplained period of delay defeat the application. The question is whether the facts take the case outside the general rule against execution after six years. The court must exercise its discretion to do justice between the parties, considering all the circumstances. Relevant matters include the overall period of delay, prejudice, the creditor’s conduct, the nature and purpose of the enforcement proceedings, and the practical context in which enforcement is pursued.

Judgment for approximately £101,409, together with interest, had been entered against the defendant on 11 March 1998. Enforcement became available after permission to appeal was refused. The defendant was resident in Quebec and had no apparent assets in England.

The claimant sought recognition and enforcement in Quebec. After the defendant argued that the judgment was no longer enforceable in England because six years had elapsed, the claimant obtained permission under RSC O.46 to issue a writ of execution. The defendant applied to set that order aside, alleging delay and an attempted ambush. The issue was whether permission should be granted for execution of the judgment after six years.

1. Application dismissed. The order granting permission to issue a writ of execution was affirmed.
2. Although the application was principally intended to assist recognition and enforcement proceedings in Quebec, rather than to execute against assets in England, the court considered the issue because both parties wished it to be determined. The question was not treated as a bar to deciding the merits.
3. The wording of RSC O.46 was clear and should not be supplemented by additional requirements. The correct test was whether facts existed which took the case outside the general rule that execution would not be allowed after six years. The discretion had to be exercised to do justice between the parties, having regard to all the circumstances.
4. The claimant’s continuing efforts to enforce numerous judgments, its decision to begin in Ontario, its subsequent Quebec proceedings, the defendant’s knowledge that enforcement remained intended, and the absence of prejudice were relevant. The period of delay relied upon by the defendant did not, viewed overall, justify refusing relief.
5. The claimant’s conduct did not amount to a deliberate ambush. A six-year period was a hurdle requiring permission, rather than an absolute limitation on enforcement by writ. The court distinguished the longer and less satisfactorily explained delay in Patel v Singh and applied the approach in The “Good Challenger”.