Westacre Investments Inc v The State-Owned Company Yugoimport SDPR

Six years’ delay does not create a general rule against enforcement by third party debt order. The special permission regime for writs of execution under RSC Order 46 cannot be imported into CPR Part 72, whose structure places the burden of objection on the judgment debtor. Delay remains a discretionary factor, but its significance ordinarily depends on prejudice, especially whether the creditor’s conduct led the debtor reasonably to believe that enforcement would not be pursued. Active enforcement efforts and the discovery of assets within the jurisdiction are material considerations. In the absence of compelling prejudice, enforcement of a substantial commercial money judgment by third party debt order will ordinarily be permitted.

The claimant held an English judgment dated 13 March 1998 arising from an arbitral award. It sought to enforce that judgment in Singapore by registration and garnishee proceedings against funds allegedly held for the defendant by a Singapore company.

The Singapore Court of Appeal directed the claimant to ask the English court whether, assuming an in-jurisdiction third party debt existed on 5 October 2004, an English court would have granted leave for enforcement by third party debt order. The issue concerned the effect of the judgment’s age and the claimant’s conduct in pursuing enforcement.

1. Declaratory relief. The court considered it appropriate to assist the Singapore proceedings by answering the hypothetical question posed, without encroaching on the Singapore court’s fact-finding function.
2. CPR Part 72. A judgment remains enforceable without a time limit. CPR Part 72 contains a discretionary process for interim and final third party debt orders. The judgment debtor bears the burden of showing why an interim order should not be made final. Neither CPR 72 nor its Practice Direction requires the creditor to explain the time elapsed since judgment.
3. No imported six-year rule. The six-year approach developed under RSC Order 46 concerns writs of execution and cannot be applied by analogy to CPR Part 72 or CPR Part 73. The distinction between the regimes has existed for more than a century. At most, delay is one factor in the overall discretion, not a rule which shifts the burden to the judgment creditor.
4. Relevant discretionary considerations. The principal consideration is prejudice to the judgment debtor, particularly whether the creditor’s conduct or inactivity reasonably led the debtor to believe that enforcement would not be pursued. Continued enforcement activity and the later discovery of assets amenable to execution may take a case outside the ordinary category recognised in the writ cases.
5. Application. The claimant had actively pursued enforcement in several jurisdictions, while the defendant could not plausibly show reliance or prejudice. The lapse of six years and seven months, and the suggested possibility of earlier discovery of the debt, therefore carried little weight. The court would have granted an interim order and, absent compelling prejudice, would have made a final third party debt order.