With regard to limitation when there is a money judgment the position in my view is as follows;

section 24(1) of the Limitation Act 1980 says "an action shall not be brought upon any judgment after the expiration of six years from the date on which the judgment became enforceable"

This looks straightforward enough but it does not mean if the lender got a money judgment against you at the time they got the possession order (if they did the amount will be stated on the possession order) that they only have six years in which to enforce the judgment. Despite the wide definition of "an action" contained elsewhere in the Limitation Act, enforcement proceedings are not included in that definition. The result is that if the lender obtained a money judgment against you there does not seem to be any limitation on when they can enforce against you.

Some people say the lender must get the leave of the Court to enforce six years after a judgment has been entered. The "leave of the Court issue", comes from the Rules of the Supreme Court Ord 46, r2, which is still in force as an Appendix to the Civil Procedure Rules. This requires the leave of the Court where six years or more have elapsed since the date of the judgment. However, Ord 46 only applies to “writs of execution”. This is good news for those who are facing certain types of enforcement procedures but not all. For example Oral examinations and attachment of earnings orders are not writs of execution, therefore, leave of the Court in those types of enforcement procedures would not appear to be necessary.

Now comes the question! If I am wrong and anyone knows of the law which says leave is required to take these enforcement procedures after six years please let me know because I am fighting a case for someone and trying to argue this point under the general provisions of the CPR but the lenders solicitors are trying to ignore me for the moment.

If your lender is trying to enforce the money judgment against you by a writ of execution and six years have passed since the judgment then you may have a good chance of persuading a court not to grant leave. See the case of Patel v Singh [2002]. To check my comments on section 24 Limitation Act see Lowsley & Another v Forbes [1999] in the House of Lords.

-- James Campbell (jascampbell@hotmail.com), July 11, 2004

Answers

James,

A solicitor has passed me the following. He says what you say is basically correct, it's more a question of terminology.....

You need to distinguish between a judgment and enforcing the judgment.

Section 24(1) says that any 'action' to enforce a judgment is subject to a six year limitation period. Enforcing an existing judgment is not action for the purposes of LA '80 (Lowsely v Forbes) but, for example, issuing a bankruptcy petition against a judgment debtor is.

All this is, of course, subject to acknowledgment and part payment.

However, it is still possible for a creditor to take 'action' in respect of the last 6 year's interest that has accrued on judgment even though the action on the judgment itself is statute barred. I think this is s24(2) but I haven't got a copy of the Act to hand.

Once a creditor has got a judgment, there are a number of ways that the judgment casn be enforced. They are:

1. 'Execution against goods' - use of the county court bailiff or the High Court sheriff to seize the debtor's goods to pay the judgment. In the county court this is known as a 'warrant of execution' and in the High Court as a 'writ of execution' or 'writ of fi fa'. Use of the High Court Sheriff and the county court bailiffs are subject to the six year limits prescribed by the rules of court. The relevant caselaw on whether a creditor should be given leave is Duer v Frazer and Patel v Singh.

2. Attachment of earnings, charging orders and third-party debt orders(garnishee orders). These other methods of enforcement are not subject to any time limits. Oral exams (now called 'information orders') are not technically enforcement.

So, in a nutshell, it is only the use of execution against goods - use of bailiffs or the Sheriff that, is subject to time limits. All other methods of enforcemant are not.

Hope this clears this up.

-- M Amos (idgroms@hotmail.com), July 14, 2004.