ON APPEAL FROM THE MANCHESTER COUNTY COURT
His Honour Judge Holman
Claim No: M10X0007 (MA113524)
Strand, London, WC2A 2LL
B e f o r e :
| IRENE FRAENKL-RIETTI
|- and -
|CHELTENHAM & GLOUCESTER PLC
The Respondent was not represented
Hearing date: 14 April 2011
Crown Copyright ©
Lord Justice Rimer :
'… I struggle to see why, per se, the fact that there is negative equity should be a bar to the grant of a charging order, particularly when one bears in mind that under the [Charging Orders Act 1979] there is power for the debtor to apply to vary or discharge the charging order.'
'… a requirement for the creditor to obtain permission and explain why permission should be granted, where more than six years have elapsed since the obtaining of the judgment.'
In his oral argument, that was the only point that Mr Davis sought to show was properly arguable. If, he said, it was so arguable, it would merit permission for a second appeal because it would raise an important point of principle. He devoted no separate energy towards showing that the 'negative equity' point also merited permission for a second appeal.
'If one reads the judgment in totality, the central issue in Lowsley was whether the Limitation Act applied to an application for a charging order to which the House of Lords gave a resounding answer in the negative, and I see no reason to go beyond that narrow issue in applying Lowsley v. Forbes to this situation.'
'The authorities referred to in the footnote to paragraph 4.14 include W.T. Lamb & Sons v. Rider  2 K.B. 331. The importance of the paragraph is not just that it draws attention to the reasoning in the Lamb case. What it also does is to propose a statutory compromise. All forms of execution were to be removed from the sphere of limitation and instead made subject to a discretionary bar after six years. There would then be no need for the special limitation period of 12 years for bringing suit on a judgment. It was in the light of that proposal that Parliament passed the Limitation Amendment Act 1980, which was in turn consolidated in the consolidation Act of that year.'
'For myself I have, like Lord Griffiths in Stubbings v. Webb  A.C. 498, no doubt that in reducing the limitation period from 12 years to six, Parliament was intending to give effect to the package of recommendations in paras. 4.12-4.16 of the Law Reform Committee's Final Report.
'Mr Hockman [leading counsel for the defendant] … argues that, even so, the recommendations of the committee are far from clear. What the committee seems to have contemplated was some future change in the rules of court so as to put garnishee orders and charging orders on the same footing as fi. fa. Since that has not yet been done, those means of execution are still covered by section 24(1) of the Limitation Act 1980.
I do not accept this argument. …'
Lord Lloyd then proceeded to explain why, as was the decision of the House, the word 'action' in section 24(1) did not include those other methods of execution but meant, and meant only, a fresh action on the judgment.