Ridgeway Motors (Isleworth) Ltd v ALTS Ltd

Does the Limitation Act 1980 (the 1980 Act) have any impact on the right of a judgment creditor to present a winding up petition? HHJ Rich QC, sitting as a Deputy High Court judge, held that a judgment creditor of a company is not statute-barred from presenting a winding up petition after the expiration of 6 years from the date on which the judgment became enforceable. The company against whom the petition was presented challenges the ruling. It appeals to this court for an order striking out the petition.

Limitation periods are prescribed by statute, not by the common law. The 1980 Act is the current statute of limitations. It does not contain any provisions specifically setting time limits for the commencement of winding up (or bankruptcy) proceedings by a creditor. The company does not invoke the inherent jurisdiction to prevent an abuse of legal procedure. It relies solely on s 24 of the 1980 Act (“Time limit for actions to enforce judgments”), which provides:

“(1)

An action shall not be brought upon any judgment after the expiration of six years from the date on which the judgment became enforceable.”

Section 38(1) (“Interpretation”) defines an action, “unless the context otherwise requires”, as including “any proceeding in a court of law including an ecclesiastical court.”

Ridgeway Motors (Isleworth) (Ridgeway) Limited invoked s24(1) and s38(1) in its application to strike out a winding up petition presented against it by ALTS Limited on 3 February 2004. ALTS presented the petition in its capacity as assignee of a judgment for costs obtained by a Mr Martyn Charles against Ridgeway on 13 June 1996. A certificate was issued on 14 January 1998 to the effect that the costs had been duly taxed at £58,406.29. At that point the costs judgment became enforceable against Ridgeway. The judgment debt together with interest now stands at over £94,000. Ridgeway has not paid the judgment debt or any part of it.

Apart from the plea of limitation, Ridgeway has not supplied its creditor or the court with any reason for refusing to pay. Its attitude to the indisputable debt is that it was for the creditor to take the proper legal measures to enforce the judgment within the limitation period set by s24(1), rather than for Ridgeway to satisfy the judgment; and that it is now too late to seek to have the company wound up on the ground that it is deemed unable to pay its debts within s123 of the Insolvency Act 1986.

Ridgeway’s limitation argument is short and simple: the winding up petition is a “proceeding in a court of law”; it is therefore an “action” within the meaning of the 1980 Act; the action is brought upon the costs judgment, which became enforceable more than six years before the date on which the winding up petition was presented; the petition is statute-barred under s24(1); it should be struck out.

HHJ Rich QC was unconvinced. On 21 May 2004 he dismissed Ridgeway’s application to strike out the winding up petition. He stayed further action on the petition pending an appeal, for which he granted permission. At a late stage the Commissioners of Inland Revenue applied to intervene in the appeal as an interested party, contending that, as frequent petitioners in insolvency proceedings in relation to unpaid tax, including petitions based on judgments, they had a clear interest in the outcome of the appeal. They did not, however, contend that they were creditors of the company. This Court declined to make an order allowing them to intervene, but received written submissions from them and allowed the parties to make observations on the submissions at the hearing.

The judge held that he was bound by authority to hold that an “action upon any judgment” in s24(1) does not include insolvency proceedings brought by a judgment creditor. The six-year limitation period in s24(1) does not apply to bankruptcy or winding up proceedings based on judgment debts. The section only applies to the comparatively rare action brought by a judgment creditor upon a judgment in order to obtain a second judgment for the debt established by the first judgment. Bennett v. Bank of Scotland [2004] EWCA 988 is a recent example of the circumstances in which a judgment creditor may have, or thinks that he may have, a valid reason for seeking another judgment based on an existing judgment.

The interpretation of “an action upon any judgment” within s24(1) involves consideration of three matters: (a) judicial interpretation of the provisions in the Limitation Act 1939 (the 1939 Act), in which s2(4) was in terms similar to s24(1) of the 1980 Act, save that it stipulated for a limitation period of 12 years, reduced to 6 years by the Limitation Amendment Act 1980, and in which s31 contained an extended definition of “action” similar to s38(1) of the 1980 Act; (b) the Report of the Law Reform Committee on Limitation of Actions(1977) (Cmnd 6923), which preceded the Limitation Amendment Act 1980 (schedule 1, paragraph 2 (d)) amending s2(4) of the 1939 Act by substituting 6 years for 12 years in accordance with the Committee’s recommendation (paragraph 4.16 of its report); (c) the authorities on s24(1).

Interpretation of 1939 Act: the case of Lamb.

The expression “an action upon any judgment” in s 2(4) of the 1939 Act was interpreted by the Court of Appeal in WT Lamb & Sons v. Rider [1948] 2 KB 331 as applying only to suing for a judgment upon a judgment. It did not apply to execution of a judgment. The Court of Appeal rejected the contention that the provision in the Rules of the Supreme Court (O 42 r23(a)), which required a judgment creditor, after the elapse of 6 years from the date of the judgment, to obtain the leave of the court to levy execution, was rendered invalid by s2(4) of the 1939 Act, which allowed 12 years for bringing an action upon any judgment as of right.

In that case the judge had rescinded the master’s order giving leave to the judgment creditor to proceed to levy execution notwithstanding that six years had elapsed since the date of the judgment. On appeal the judgment creditor challenged the validity of the rule of court dating from 1883 requiring leave to proceed to levy execution. It was contended that the rule was in conflict with s2(4). It subjected the right of execution, if not exercised within 6 years, to the discretion of the court. The judgment creditor argued that it was entitled by statute to bring an action upon the judgment and to issue execution, which was “a proceeding in a court of law” and therefore an “action upon a judgment.” Such an action could be brought, without obtaining the leave of the court, within 12 years from the date on which the judgment became enforceable.

The reserved judgment of the Court of Appeal read by Scott LJ concluded (on p338) that the 12 year limitation period set in the 1939 Act (and the periods set in the earlier Acts) dealt only with the “substantive right to sue for and obtain a judgment, and with that alone;” the period did not apply to the “procedural machinery for enforcing a judgment when obtained.” The broad definition of “action ” in the 1939 Act did not have the effect of merging what had formerly been the two “quite independent and distinct” subjects of (a) the substantive right to sue for and obtain a judgment and (b) the procedural machinery for enforcing a judgment when obtained (see p338). It did not cover an application to the court for leave to levy execution on the judgment after the expiration of 6 years.

As has been frequently done in other cases of difficult points arising on the Limitation Acts, the court adopted an historical approach. It surveyed briefly the legislative history of s2(4). It started with the execution of judgments at common law and the treatment of actions on a judgment in the Real Property Limitation Act 1833, which rendered an action on a judgment statute barred after 20 years. The Common Law Procedure Act 1852 reformed the common law on the execution of judgments by introducing a statutory leave procedure for executing a judgment. In doing so it relaxed the common law practice for executing a judgment in cases where more than a year and a day had elapsed since judgment without execution and without scire facias. (The writ of scire facias, which was not finally abolished until 1947, was based on a judgment. It was used in earlier times in a number of different ways: as an original action, as a continuation of an earlier action and as a means of execution. It directed the sheriff to warn the person against whom it was directed to show cause why the person bringing it should not have the benefit of the judgment). The Court then considered the Real Property Limitation Act 1874, which reduced the limitation period for actions on a judgment from 20 years to the period of 12 years preserved in the 1939 Act.

In the light of the conclusions reached by the court on its historical survey Lamb is authority for the proposition that the limitation period set by s2(4) only applied to an action brought by a judgment creditor suing upon his existing judgment for another judgment. For limitation purposes an action brought upon a judgment to obtain another substantive judgment was distinct from the procedural steps taken to execute an existing judgment.

Report of the Law Reform Committee

The legal position under the 1939 Act was considered in a report of the Law Reform Committee in July 1977. The Committee consisted of distinguished common, chancery and academic lawyers. The following recommendation was made (followed by implementation in the Limitation Amendment Act 1980 and re-enactment in s24(1) of the consolidating 1980 Act):

“4.16

….that the special 12-year period for an action on a judgment should be abolished and the normal six-year period should apply instead.”

In interpreting s24(1) the court is not entitled to take into account the committee’s recommendations acted on by Parliament in the subsequent legislation, but it is entitled to have regard to the statements contained in the report of the mischief aimed at and of the state of the law as it was then understood to be by the Committee: Black-Clawson Ltd v. Papierwerke AG [1975] AC 591.

The Committee noted in paragraph 4.13 that

“ Until 1852, an action on a judgment was the simplest way in which a judgment creditor could recover his money after a year and a day had elapsed since the judgment; and a judgment was, until 1864, chargeable per se on, and payable out of, the proceedis of sale of real property. In view of this latter rule it is understandable that the period for an action on a judgment has since 1833 been the same as that for an action relating to land. Actions on a judgment are, however, nowadays very rare indeed and we do not think that the special provisions for judgments should be preserved.”

The “special provisions” were those setting the 12 year period derived from the period for an action relating to land. It is evident from paragraphs 4.14 and 4.15 of its report that the Committee proceeded on the basis that it was only dealing with attempts to enforce a judgment in a particular way, namely “by means of a fresh action” leading to another substantive judgment debt on which execution could be issued. Insolvency proceedings, which were not specifically mentioned in the report and are not accurately described as being “very rare indeed”, are not instituted in order to obtain another substantive judgment debt on which execution can be issued. The Committee did not question the interpretation of s2(4) laid down in Lamb drawing a distinction between suing upon a judgment by a fresh action for another judgment and executing an existing judgment:

“4.14

The authorities [three cases, including Lamb, are cited] show that section 2(4) has caused difficulties in practice, because it has been held apt to bar certain (though not all) forms of execution. We think that the law of limitation of actions ought not to interfere with the rules in relation to execution, which currently provide for a period for issue of a writ of execution of six years, which may be extended with the leave of the court. We think that provisions of this kind are the appropriate method of dealing with execution and that they could, if necessary, be extended to cover those methods of execution which, because they are not caught by the current rule, are subject to the twelve-year period.”

Parliament implemented the Committee’s recommendation by reducing the period applicable to actions upon a judgment from 12 years to 6 years, but it did not make any other relevant changes in the area of law covered by s2(4) of the 1939 Act.

Authorities on s24(1) of the 1980 Act

HHJ Rich cited two authorities concerned with judgment debts established more than 6 years before the relevant proceedings in which a limitation point was raised under s24(1). The first was Re a Debtor [1997] Ch 310. It was a decision of HHJ Paul Baker QC, sitting as a High Court Judge on appeal from the district judge’s decision to set aside a statutory demand as statute barred. On dismissing the appeal HHJ Baker held that bankruptcy proceedings based on a statutory demand for moneys due under a previous default judgment constituted “an action upon a judgment” within s24(1). Insolvency proceedings constituted a fresh action or proceeding newly brought, of the kind described in Lamb, rather than a proceeding under the judgment previously obtained. Bankruptcy proceedings were not, the judge held, a method of, nor were they akin to, enforcing or executing a judgment outside s24(1). As more than 6 years had elapsed since the default judgment became enforceable, bankruptcy proceedings based on it in the statutory demand would be statute barred by s24(1). It was held that the statutory demand had been rightly set aside by the district judge.

The second decision was that of the House of Lords in Lowsley v. Forbes [1999] 1 AC 329. It was unconnected with bankruptcy and in that respect was different from Re a Debtor, which was not cited in argument or in the speeches. It is, however, a decision of the highest authority on the interpretation of s24(1). HHJ Rich was bound to follow it in preference to Re A Debtor, unless the two cases could be distinguished.

In Lowsley the plaintiffs, with the leave of the court, obtained garnishee and charging orders nisi against the debtor 11½ years after they had obtained a consent judgment. The House of Lords upheld the decision of the Court of Appeal that an application by the judgment debtor to set aside the orders on the ground that they were statute barred under s24(1) should be refused. It was held, following the decision in Lamb on s2(4) of the 1939 Act, that s24(1) does not apply to proceedings by way of execution of a judgment in the same action: the expression “action upon any judgment” in s24(1) means, as it did in s2(4) of the 1939 Act, bringing a “fresh action” upon a judgment for another judgment. It did not include the execution of an existing judgment, which could proceed despite the expiration of more than 6 years from the judgment.

The principal speech, with which other members of the Appellate Committee concurred, was delivered by Lord Lloyd of Berwick. He said (at p334B) that

“ The first question is whether section 24(1) bars execution of a judgment after six years, or whether it only bars the bringing of a fresh action on the judgment.” [ The second question related to interest]

The judgment debtor contended that, on the extended definition of “action” in s38(1) of the 1980 Act, the charging order and the garnishee order were “proceedings in a court of law” and accordingly an “action” within s24(1), to which the 6-year period applied. Lord Lloyd rejected that contention after an in- depth review of the history of the limitation and other statutory provisions regarding the obtaining and enforcement of judgments and the authorities on them, including Lamb, and the 1977 Report of the Law Reform Committee.

Lord Lloyd held that, although he did not agree with the steps in the reasoning in Lamb based as it was on a narrow interpretation of “action” in s2(4) of the 1939 Act and in the earlier legislation, it was not open to the House of Lords to reconsider that reasoning: it had been treated as correct not only in subsequent cases and by the Law Reform Committee, but also by Parliament itself in enacting s24(1) in similar terms to s2(4) of the 1939 Act and in confining the amendment of the 1939 Act to a reduction in the length of the limitation period from 12 years to 6 years recommended by the Law Reform Committee. Lord Lloyd cited with approval the ruling of Brandon J in Berliner Industriebank Aktiengesellschaft v. Jost [1971] 1 QB 278 at 293H that the distinction “between the right to sue on a judgment (which is a substantive right) and the right to issue execution under it (which is a procedural right or remedy) has always been recognised in the law of limitation.” The effect of the distinction is that in s24(1) “action” should be taken to mean suing by fresh action upon a judgment for another substantive judgment: it does not include the procedure for execution of an existing judgment.

The critical issue on the appeal is the effect of the House of Lords’ interpretation of s24(1) on insolvency proceedings. HHJ Rich QC held that it was fatal and that he was constrained to conclude that Re a Debtor was wrongly decided. The true meaning of “an action upon a judgment” in s24(1) was “limited to what are technically actions upon the judgment, that is to obtain a further judgment based on the judgment such that a new limitation period begins to run.” (paragraph 22). A winding up petition is no more an action of that technical kind than is a bankruptcy petition. (It was not suggested on this appeal that there is any relevant difference in this context between a bankruptcy petition and a winding up petition.)

Counsel for Ridgeway forcefully argued that insolvency proceedings are caught by the ordinary and natural meaning of the 1980 Act, simply because they are “proceedings in a court of law.” “They are an “action” within s.38(1), to which the 6 year period in s.24(1) applies”. A judgment creditor is not therefore entitled to base his winding up petition on a statute-barred judgment.

Further, it was submitted that a winding up petition is not execution or enforcement of a judgment, like the cases of a charging order and an attachment order, which Lowsley held were not caught by the 6-year limitation period in s24(1). It was argued that it falls on the other side of the line drawn in Lamb and recognised in the later cases and by the Law Reform Committee. A winding up petition is a “fresh action” upon the judgment of the kind which is caught by s24(1). Authorities on the nature of a winding up petition were cited in support of this contention. Particular reliance was placed on the judgment of Millett J in Re International Tin Council [1987] Ch 419 at 455 to show that the presentation of a winding up petition marks the commencement of an entirely new lis in which the issue is whether the company is insolvent and ought to be wound up and that “the court is engaged in a new process of adjudication, separate and different from any that may previously have been involved in establishing the petitioning creditor’s debt.” These features of winding up proceedings, it was submitted, demonstrated that they are not execution or enforcement of a judgment outside s24(1), but a “ fresh action” on a judgment within s24(1). A winding up petition based on a judgment debt is, it was argued, subject to the 6 year limitation period applicable to “an action upon a judgment.”

I agree with Ridgeway’s submissions to the extent that (a) a winding up petition is, in a general sense, a “proceeding in a court of law” and that (b) it is not proper to characterise it as the individual execution of a judgment obtained by a creditor of the company. This is not, however, sufficient to meet the difficulty that in Lowsley it was unanimously held by the House of Lordsthat the expression “an action upon a judgment” in s24(1) has a special legal meaning derived from its legislative history. “An action upon a judgment” has been treated since Lamb by the courts, by the Law Reform Committee and by Parliament itself as having the special or technical meaning of a “fresh action” brought upon a judgment in order to obtain a second judgment, which can be executed. Insolvency proceedings, whether personal or corporate, do not fall within the scope of the special meaning of “an action upon a judgment.” A winding up petition is neither (a) an action upon a judgment in the special sense of being designed to re-establish by legal proceedings the liability of the company to pay a judgment debt and obtain another judgment for it, nor (b) a process of execution of the judgment on which the petition is based. It is sui generis, being in the nature of a wider legal proceeding available for the collective enforcement of the admitted or proved debts of the company for the benefit of the general body of creditors on a pari passu basis: see, for example, Re Lines Bros. Ltd [1983] Ch 1 at 20. Whatever its correct juristic classification may be, a winding up petition is not, according to authorities binding on this court, “an action upon a judgment” within s 24(1) and is not statute barred.

The arguments about the natural and ordinary meaning of “proceeding”, “action” “enforcement” and “execution” are insufficient to displace the special or technical meaning of “an action upon a judgment” adopted in Lamb and followed through by Parliament into s24(1) of the 1980 Act. Even though this result may follow from the perpetuation by Parliament, via the Law Reform Committee, of an erroneous view of the meaning of an “action” in the Limitation Acts, it is not, in my judgment, an unsatisfactory result having regard to the policy of the Limitation Acts summarised in Halsbury’s Laws Vol 28 (4^th ed reissue) at paragraph 805, which relates to the vindication of causes of action rather than to the enforcement of judgments :

“ The courts have expressed at least three differing reasons supporting the existence of statutes of limitation, namely (1) that long dormant claims have more of cruelty than justice in them; (2) that a defendant might have lost the evidence to disprove a stale claim; and (3) that persons with good causes of action should pursue them with reasonable diligence.”

There is, in my opinion, much to be said for the submission of Mr Anthony Mann QC (as he then was) appearing as counsel for the plaintiff judgment creditors in Lowsley at 333C-E:

“ There are good policy reasons for distinguishing between action and execution. Limitation statutes are intended to prevent stale claims, to relieve a potential defendant of the uncertainty of a potential claim against [him] and to remove the injustice of increasing difficulties of proof as time goes by. These considerations do not apply to execution. If it is unfair to have a judgment debt outstanding with interest running at a high rate, the debtor has the remedy of paying the debt or taking out his own bankruptcy if he cannot pay it.”

In brief, the context of the expression “action upon a judgment” in s24(1) includes statements by the Law Reform Committee Report as to what the law was understood to be, on whose report Parliament based the amendment to s2(4) of the 1939 Act. For the reasons given by Lord Lloyd in Lowsley, that context requires the expression “action upon a judgment” in s24(1) to be interpreted in a sense otherwise than that indicated by the extended definition of an “action” in s38(1).

It was always open (and is still open) to Ridgeway to avoid the consequences of this situation either by satisfying the judgment, if able to do so, or, if unable to do so, by taking other steps open to a company unable to pay its debts as and when they fall due for payment.

During the course of the appeal two other points were raised on the effect of the 1980 Act on insolvency proceedings, on which I should comment.

The only ruling necessary for the disposal of this appeal is that the presentation of a winding up petition by a judgment creditor is not subject to the 6-year limitation period applicable to bringing an action upon a judgment within s24(1). The same ruling applies to the presentation of a bankruptcy petition. I should comment on the position of ordinary creditors, who do not have a judgment debt, and on the proof of a judgment debt in a subsequent liquidation.

It appeared from the answers of counsel to various questions put by the court in an attempt to understand what is really going on in this dispute that no steps have been taken to execute the judgment, such as by obtaining a charging order or an attachment order. Such steps would not have given rise to the s24(1) point. Apparently, there are other issues between the parties, but they are irrelevant to the limitation point. Nothing in this judgment is intended to deal with the right of ALTS to execute the judgment or with any other issues affecting the motives and conduct of the parties.

I would dismiss the appeal.

I agree.

The second half of the nineteenth century saw the emergence of methods of dealing with unsatisfied liabilities that are still recognisable in our law today. One set of provisions was concerned with the management of all the unpaid debts of an individual or a corporation (whether they had resulted in unsatisfied judgments or not) in a way that was fair to all the different interests involved. The other was concerned with the enforcement by a judgment creditor of the debt a judgment debtor was adjudged to owe him. These two processes were always quite distinct.

Thus the Bankruptcy Act 1861 brought within the purview of the Bankruptcy Court for the benefit of non-trading individuals and their creditors the benefits of the bankruptcy regime which had applied to traders since 1705. And the Companies Act 1862 brought all corporate insolvency proceedings under the jurisdiction of the Chancery Court: they had earlier been distributed between the Bankruptcy Court and the Chancery Court (see, for instance, the Companies Winding Up Act 1844 and the Winding Up Amendment Act 1848 with their different regimes). The creation of these new statutory procedures did not impinge at all on the parallel processes whereby Parliament was creating limitation regimes in respect of the enforcement of debts owed by one person to another.

So far as those debts were concerned, we fortunately do not have to plunge back into legal history again in the manner essayed by the House of Lords in Lowsley v Forbes, because as Mummery LJ has observed, the House of Lords has now definitively, if reluctantly, settled the meaning of the phrase “action upon a judgment” for the purposes of section 24(1) of the Limitation Act 1980. It may be just as well we do not, because the third volume of Blackstone’s Commentaries (1867 edition, pp 167-8)gave an explanation of the origins of the action of debt on a judgment, based on the theory of an implied contract, which does not feature in Lord Lloyd’s account of the matter in Lowsley. Blackstone explains that on the disuse of real actions, actions upon judgments in personal suits were pretty much discountenanced by the courts as being generally vexatious and oppressive, by harassing the defendant with the costs of two actions instead of one, so much so that by the statute 43 Geo III c 36 a plaintiff was not entitled to recover any costs upon such an action unless the court in which the action was brought, or a judge thereof, otherwise ordered.

A footnote on p 167 cites Berkeley v Elderlem (1 El & Bl 805):

“But where a specific remedy is provided for the recovery of such damages or sums of money, this mode of proceeding cannot be resorted to, as in the case of the new County courts, on the judgments of which an action will not lie.”

Fortunately an authoritative exposition of these matters can be left on this occasion to the legal historian because the House of Lords, despite its misgivings, has directed us to interpret the statute along the lines explained by this court in Lamb v Rider. It is therefore unnecessary for us to explore some of the peculiarities of late Victorian case-law that were drawn to our attention.

For these reasons and for the reasons given by Mummery LJ I, too, would dismiss this appeal.

I also agree.