Home Information Cases Carnegie v Giessen & Ors (2005)

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Carnegie v Giessen & Ors (2005)

Summary

Enforcement of a foreign currency judgment by means of a charging order did not require the judgment debt to be converted into sterling before enforcement was completed, and such orders did not offend any rules derived from Miliangos v George Frank (Textiles) Ltd [1976] AC 433 and the relevant Practice Directions.

Facts

The appellant (C) appealed against an order dismissing his appeals against a number of orders in relation to the enforcement of a judgment obtained against the respondents (G). C had taken a series of steps to enforce a judgment debt against G. Following C's applications in respect of properties belonging to the first and third respondent, the master in each application made an interim and subsequently a final charging order for the judgment debt, which was expressed in US dollars. No point was taken on the currency in which the order was expressed. At a subsequent application for orders for sale of the properties, C claimed that the inclusion of a dollar amount in the charging order had been a mistake and he sought to correct the mistake under CPR r.3.10. The master found that there had been neither slip nor procedural error and refused to exercise his discretion to amend. C's broad submission was that the enforcement of a foreign currency judgment by means of a charging order under the Charging Orders Act 1979 required the judgment debt to be converted into sterling before enforcement was completed, that was, before the date when the charging order was made final.

Held

(1) The conversion should be made as close as practicable to the date of payment, having regard to the realities of enforcement procedures, Miliangos v George Frank (Textiles) Ltd [1976] AC 433 applied. The House of Lords in that case was not asked to, and did not, make a ruling on the application of that principle to particular enforcement procedures. The reference in Miliangos to "the date when the court authorises enforcement" could not be taken as of general application. Accordingly charging orders made by the master in the instant case did not offend any mandatory rule derived from that case. (2) There was nothing in s.1 and s.3 of the 1979 Act that suggested that a charging order could not be expressed in a foreign currency. If anything, s.1 indicated that, where the judgment was expressed in a foreign currency, the charging order should be expressed in the same way. An equitable charge over property in England could be expressed in foreign currency, so an order in similar form would not offend s.3. (3) The master clearly had jurisdiction to make a charging order in the form he did. At the most it could be said that in doing so he departed from a 1993 Practice Direction on enforcement, which remained effective as there was nothing in the CPR revoking or superseding it. That Practice Direction would have led to the order being expressed in the terms of the sterling equivalent given in the application. However, the Practice Direction was expressly stated to be subject to any order or direction that the court may make or give in a particular case. It was not in terms mandatory. Assuming that the master had a discretion to revise his order retrospectively, he made clear that he would have refused it. In the circumstances the judge was correct to uphold the master's refusal and the instant court would not interfere.

Appeal dismissed.

Court of Appeal
Ward LJ, Dyson LJ, Carnwath LJ
Judgment date
1 March 2005
References

LTL 1/3/2005 : (2005) 1 WLR 2511 : (2005) 1 CLC 259 : Times, March 14, 2005 : Independent, March 18, 2005 

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