Home Information Cases Duer v Frazer (2000)

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Duer v Frazer (2000)

Summary

The claimant did not make out a case for the exercise of the court's discretion under RSC O.46 r.2 to prolong the period of six years from the registration of a German judgment in England so as to entitle him to permission to issue execution.

Facts

Claimant's appeal from the order of Master Hodgson on 3 February 2000 whereby he discharged his order, made without notice, which had given the claimant permission to issue execution to enforce a German judgment of 20 March 1984, which had been registered in England by Master Topley in July 1984 under the Foreign Judgments Reciprocal Enforcement Act 1933. In 1988 the claimant became aware that the defendant was living in Nevis, West Indies. From 1989 to mid-1994 no steps were taken to enforce the judgment. The first contact between the claimant and the defendant after 1989 was in April 1997. The claimant applied to extend time for execution of the judgment under RSC O.46 r.2. There was a conflict of evidence on the effect of registration of a German judgment in England for the purpose of assisting in seeking to issue execution in Nevis.

Held

(1) In the light of (1) Michael Lowsley (2) Rosalieve Lowsely v James Forbes (1998) 3 WLR 501 an application under RSC O.46 r.2, to issue execution on a judgment more than six years after it was made, was not barred by limitation. (2) The court would not, in general, extend time beyond the six years save where it was demonstrably just to do so. The burden of demonstrating this should be on the judgment creditor. (3) Prejudice and change in position of the judgment debtor were clearly relevant. The longer the delay the more likely it was that the court would find prejudice. Although judgments in Germany may remain enforceable for up to 30 years from the date when made, there was no reason to treat the judgment of a foreign court registered in England differently from an English judgment when applying RSC O.46 r.2. The claimant had not made out a case for extending the period beyond six years from the registration of the German judgment in England.

Queen's Bench Division
Evans-Lombe J
Judgment date
19 April 2000
References

​LTL 4/5/2000 : [2001] 1 WLR 919 : [2001] 1 All ER 249

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