CH v RN & Ors [2009] EWHC 640 (Fam)

[2009] EWHC 640 (Fam)Case No FD05P00218Case No FD05F00393
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 03/04/2009
Before
MISS PAMELA SCRIVEN Q.C.
Between
RN1st DefendantBN2 nd DefendantKB3 rd Defendant
Mr. Simon Edwards (instructed by Messrs. Hunters) for Plaintiff1st Defendant appearing in person for in person2 nd Defendant appearing though the 1 st Defendant for 3 rd Defendant not appearing and not representedMr. Charles Smith (instructed by BDO Stoy Hayward LLP) for SequestratorsHearing Hearing date: 12 th March 2009
Judgment

JUDGMENT OF PAMELA SCRIVEN Q.C. GIVEN ON THE 3RD APRIL 2009

[1]This judgment deals with a point that has arisen in long-standing proceedings. The issue concerns a writ of sequestration issued on 19th May 2006. A question has arisen as to whether the writ, which has not been renewed since it was issued, is still valid.

The Background

[2]The relevant background history can be stated shortly. The Plaintiff is the father of a child A; the First Defendant is A’s mother. The child A who, by order of the court in Children Act proceedings, lived with the Plaintiff. In May 2006 the First Defendant did not return A to the Plaintiff’s care at the end of a period of contact with her, and she removed him to India. Both actions were in breach of an order made in the Children Act proceedings by this court on 10th November 2005. As a result, on 19th May 2006, Pauffley J found the First Defendant to be in contempt of court and ordered that the Plaintiff do have leave to issue a writ of sequestration. The writ of sequestration was issued later on the same day. On 23rd May 2006, an order was made directing the Sequestrators to pay the Plaintiff’s solicitors £25,000 to be used in the furtherance of the Plaintiff’s efforts to recover the child from India, and for the payment of the Plaintiff’s solicitors’ costs out of sequestered assets. The Sequestrators then took possession of bank accounts and a property in the name of the First Defendant.[3]In due course, in September 2006, the child A was returned to the jurisdiction and to the Plaintiff’s care, where he remains. The First Defendant has never made a formal application to purge her contempt, although she told me that she did hand over the child to the Plaintiff in India, and that she has apologised to the court for her actions in subsequent hearings about A’s welfare.[4]Substantial costs were incurred both by the Plaintiff’s solicitors and the Sequestrators. The amount of costs liable to be paid to the Plaintiff’s solicitors required detailed assessment which was not concluded until 28th November 2007.[5]On 22nd May 2008, following unsuccessful attempts to negotiate a settlement with the First Defendant, the Sequestrators issued an application seeking a number of directions in order to obtain the realisation of assets under the Sequestrators’ control to meet the costs and expenses of the sequestration, the costs to be paid to the Plaintiff’s solicitors, and the subsequent discharge of the Sequestrators.[6]The matter came before Charles J on 11th June 2008 when it appeared that the First Defendant was alleging that the beneficial interest in the major sequestered assets did not belong to her but to her mother BN and her brother KB. As a result they were made respectively Second and Third Defendants for the purposes of determining their beneficial interests in those assets. The three Defendants were given until 1st July 2009 to provide witness statements containing the evidence of fact on which they sought to rely, together with copies of all relevant documents in relation to the assertion that the Second and Third Defendants were the beneficial owners, and all three were directed to provide full and clear answers to any questions served upon them by the Plaintiff's solicitors. A list of questions was in due course provided. No evidence or answers to the questions has ever been filed by any of the Defendants. Further orders extending time to comply on strict terms were agreed with the First Defendant by consent, although it was later contended by solicitors acting on behalf of the First Defendant that the Second and Third Defendants had not consented to those orders (an assertion which has never been made or advanced by the Second or Third Defendants).[7]On 24th November 2008, the application came before me. I indicated that I would make orders dismissing an application by the First Defendant for an adjournment and make the directions sought on behalf of the Sequestrators. I indicated that I would give the Second and Third Defendants permission to apply to set aside the order provided that within 14 days of service they filed and served the evidence which Charles J had required of them in June 2008. However, very shortly after that hearing, and before the order had been perfected, counsel for the Sequestrators alerted the court and the other parties to a question which had arisen, which was whether the draft order made on 24th November 2008 could be perfected and enforced without renewal of the writ of sequestration pursuant to RSC Order 46 rule 8.[8]The Sequestrators themselves came to the view, having considered the matter, that the writ did not need renewal, but because the point had not been canvassed at the hearing on 24th November 2008, they have very properly restored the matter to the court for determination. There is a particular need for caution which they acknowledge because the First Defendant was unrepresented at the November hearing. She remained so at the hearing before me on 12th March 2009 when I heard argument on the point.

The Issue

[9]The issue which arises is whether RSC Order 46 rule 8, which deals with the duration and renewal of writs of execution, applies to the writ of sequestration issued in this case.[10]RSC Order 46 rule 1 (headed “Definition”) provides:
“In this order, unless the context otherwise requires, “writ of execution” includes a writ of fieri facias, a writ of possession, a writ of delivery, a writ of sequestration and any further writ in aid of the aforementioned writs.”
[11]RSC Order 46 rule 8 (headed “Duration and renewal of writs of execution”) provides:(1) For the purpose of execution, a writ of execution is valid in the first instance for 12 months beginning with the date of its issue.(2) Where a writ has not been wholly executed the court may by order extend the validity of the writ from time to time for a period of 12 months at any one time beginning with the day on which the order is made, if an application for extension is made to the court before the day next following that on which the writ would otherwise expire or such later day, if any, as the court may allow.(3) Before a writ the validity of which had been extended under paragraph (2) is executed either the writ must be sealed with the seal of the office out of which it was issued showing the date on which the order extending its validity was made or the applicant for the order must serve a notice (in Form 71 in the relevant Practice Direction sealed as aforesaid) on the enforcement officer informing him of the making of the order and the date thereof.(4) The priority of a writ, the validity of which has been extended under the rule, shall be determined by reference to the date on which it was originally delivered to the enforcement officer or the relevant enforcement officer.(5) The production of a writ of execution, or of such a notice as is mentioned in paragraph (3) purporting in either case to be sealed as mentioned in that paragraph, shall be evidence that the validity of that writ, or, as the case may be, of the writ referred to in that notice, has been extended under paragraph (2).(6) If during the validity of a writ of execution, an interpleader summons is issued in relation to an execution under that writ, the validity of the writ shall be extended until the expiry of 12 months from the conclusion of the interpleader proceedings. The question which concerned the Sequestrators was whether, in the light of those provisions, it might be said that the writ, which was not renewed after 12 months, requires renewal in the present case.[12]I should record at this stage that both counsel for the Sequestrators and for the Plaintiff have provided helpful written and oral submissions. The First Defendant did not address me directly on the issue, which is unsurprising in view of its technical nature. I have considered the arguments closely, mindful of the particular need for care because the First Defendant is unrepresented.[13]Counsel for the Sequestrators and for the Plaintiff submit that the requirement for renewal set out in RSC Order 46 rule 8 does not apply here. They do so for two reasons. The first is that although RSC Order 46 rule 8 applies to “writs of execution” as defined in RSC Order 46 rule 1, it only does so where the context does not demand otherwise, and that when the context is examined, it has no application at all to writs of sequestration. The second, which I am satisfied is a less contentious point, is that RSC Order 46 rule 8 only applies where a writ needs renewal for the purposes of execution, and that execution in this case had in reality taken place within a year of the issue of the writ. For the reasons I shall set out below, I am satisfied that the writ with which I am concerned here was executed within one year and so does not require renewal. In the light of those specific findings, it is not necessary for me to determine the more general question of whether RSC Order 46 rule 8 has any application to writs of sequestration.

What amounts to execution for the purposes of RSC Order 46 rule 8?

[14]The Sequestrators and the Plaintiff draw attention to the wording of RSC Order 46 rule 8 and make the point that it only applies where a writ needs renewal “for the purposes of execution”, and only applies to writs which have not been “wholly executed”. It is clear that the efficacy of a writ for purposes other than execution is unaffected by the rule. What, then, amounts to execution in this context?[15]Counsel for the Sequestrators identified two broad possible meanings of “execution” here. The first is that, in RSC Order 46 rule 8, whole execution means the completion of the process for enforcing or giving effect to an order of the court.[16]In Re Overseas Aviation Engineering Limited [1963] 1 Ch 24 Lord Denning MR said [at p 39-40]: - “The word "execution" is not defined in the Act. It is, of course, a word familiar to lawyers. "Execution" means, quite simply, the process for enforcing or giving effect to the judgment of the court: and it is "completed" when the judgment creditor gets the money or other thing awarded to him by the judgment. That this is the meaning is seen by reference to that valuable old book Rastill Termes de la Ley, where it is stated:
"Execution is, where Judgment is given in any Action, that the plaintiff shall recover the land, debt, or damages, as the case is; and when any Writ is awarded to put him in Possession, or to do any other thing whereby the plaintiff should the better be satisfied his debt or damages, that is called a writ of execution; and when he heath the possession of the land, or is paid the debt or damages, or heath the body of the defendant awarded to prison, then he heath execution."
And the same meaning is to be found in Blackman v. Fysh, when Kekewich J. said that execution means the "process of law for the enforcement of a judgment creditor's right and in order to give effect to that right."”[17]If these dicta are applied to the use of the word “execution” in RSC Order 46 rule 8, it seems clear that the execution of the common forms of writ is whole only when the judgment creditor gets his money or property. In relation to writs of sequestration, there appear to be two possible interpretations; that execution is whole when the order to be enforced has been completed, as it has been in this case by the child being returned to the care of the father and to the jurisdiction; or that execution is only whole when all the other functions of the sequestration are complete which, in the present case, includes payment of the various costs orders in favour of the father and the Sequestrators’ remuneration.[18]It was submitted on behalf of the Sequestrators, and I accept, that the first alternative appears to be more consistent with the dicta referred to above which views execution as a process concerned with enforcing the order to which the writ was directed. The second alterative has, I accept, an additional problem because it robs the words “for the purpose of execution” of any real meaning; if execution must be complete in that sense, it is difficult to conceive of any other purpose for which the writ might remain valid. If all the other functions of the sequestration were complete, the sequestration would be at an end. Thus I conclude that the first alternative is to be preferred.[19]The second possibility raised before me is that “execution” is not used in RSC Order 46 rule 8 to refer to the whole process of enforcement, but to the process of seizing goods or taking possession of land in execution. It refers to the act of levying execution rather than the process which includes paying the creditor or giving the claimant his property.[20]There are a number of pointers which support this. The first is that the wording of Order 46 rule 8 itself contemplates that a writ may be valid for purposes other than execution. If execution means the whole process of enforcement, it is difficult to see what the words “for the purposes of execution” add, since there is no other purpose for the writ, which is only a method of enforcement. I find this point highly persuasive. Secondly the practice direction to RSC Order 46 contemplates that execution may be something which takes place on a single day, which is not consistent with execution being viewed as a process rather than an act. Thirdly, contrary to the dicta cited above, the ordinary forms of writ of fieri facias, possession and delivery expressly contemplate that execution is complete when goods have been seized or possession of property taken, and before payment or giving possession to the claimant. Fourthly, the proposition is supported by a passage in Arlidge on Contempt and the notes in the White Book. Both make reference to the need for renewal of a writ of sequestration under RSC Order 46 rule 8 as arising in a situation where “nothing has been levied under the first [writ]”.[21]All these factors lead to the conclusion that in RSC Order 46 rule 8 execution refers to the act of taking possession of goods or property. If this is the sense of the word execution in RSC Order 46 rule 8, and accepting for present purposes that the rule applies, execution is completed when the contemnor’s assets are seized or possession is taken of the property.[22]I do not accept that under RSC Order 46 rule 8 execution means the process whereby all the functions of the Sequestrators' appointment are discharged, including those unrelated to enforcing the original order in respect of which the First Defendant was found to be in contempt. Such an interpretation leads to a nonsense; there would be no need to seek a renewal because the writ would serve no purpose.[23]In my judgment, if the writ of sequestration is governed by RSC Order 46 rule 8, it was executed for the purposes of that rule either when the child A was retuned to the Plaintiff's care and to this country (and thus the breaches of the order which led to the sequestration were rectified and the court’s order was given effect) or when the Sequestrators took possession of the First Defendant’s assets (the bank accounts and property registered in her name). Both of these events happened within 12 months of the issue of the writ. What remains outstanding is not the execution of the writ of sequestration but acts consequential upon it. The property has been seized; now the Sequestrators are seeking directions from the court for the proper administration of the sequestered assets leading to the discharge of the writ. Assuming, therefore, that RSC Order 46 rule 8 does apply to the writ of sequestration, the writ was “wholly executed” within the twelve month period and did not require renewal “for the purpose of execution”.[24]I am satisfied that on the facts of this case it is not necessary for me to go on to consider the point which appears to me in any event to be more ambiguous, which is whether RSC Order 46 rule 8 has any application to writs of sequestration. Interesting though the arguments were, I am mindful of the fact that no argument to the contrary was canvassed before the court, and that whilst parts of Order 46 rule 8 plainly have no application to writs of sequestration, none the less I would not want to be thought to be making a more general ruling than has been necessary to resolve the issue before me. It is a point that may need to be determined on full argument in another case, but this is not the case to do so.