Chapter 2 - Obtaining information about a judgment debtor's assets

2.14 All bankruptcy petitions^[11] and bankruptcy orders^[12] filed in England and Wales are automatically notified to the Chief Land Registrar to be registered in the register of pending actions^[13] and the register of writs and orders affecting land^[14] respectively. Both of these registers are held at the Land Charges Department.

2.15 The search can be made over the telephone.^[15] However, in order to use the telephone service a key number is needed which can only be obtained by opening a credit account. The full name of the individual(s) the judgment creditor wishes to search against should be given. The cost is £2 per name searched against. A verbal answer will be given immediately and a certificate will follow by document exchange or post.

2.16 Alternatively, the search can be made by post or fax using form K16. The cost is £1 per name by post or £2 per name by fax. Contact details for the Land Charges Department are given in Appendix 1.

2.17 Searches for both bankruptcy orders and individual voluntary arrangements in England and Wales can be made by searching the Individual Insolvency Register.^[16] Unlike the Land Charges Register, this search will not reveal bankruptcy petitions^[17] and thus gives no warning of an impending bankruptcy. However, it does reveal individual voluntary arrangements^[18] and therefore indicates when a judgment debtor is in financial difficulties. The register is updated daily.

2.18 The search can be made free of charge online,^[19] by post or fax to the Insolvency Service's headquarters in Birmingham, or in person at the office of the local Official Receiver.^[20] An online search can be performed against just a surname (or part of a surname) for either the whole of England and Wales or, if desired, an area covered by an individual Official Receiver's Office.

2.19 In the case of a postal or fax search, the details provided about the individual to be searched against should be as full as possible. The minimum required is the full name of the individual. However, where other details are known (such as aliases, gender, date of birth, address, occupation or trading name) these should also be provided since they will help narrow the search.

2.20 The results form will be despatched by post and will either indicate that there is no trace of a bankruptcy order or individual voluntary arrangement, or that there is a match or close possible match and provide details. In the latter case, further enquiries should be made by telephoning the relevant court.^[21] Contact details for the Insolvency Service are given in Appendix 1.

2.29 All companies formed and registered under the Companies Acts are required to deliver certain documentation to the Registrar of Companies.^[34] In addition, overseas companies which have an established place of business in Britain are required to deliver certain documents.^[35] Some of this information may provide an indication of the financial health or assets of a company. An outline of that which is likely to prove most useful to a judgment creditor is given in paras 2.28–2.34.

Companies House Information Centres are located in Cardiff, Edinburgh and London and maintain records of every registered company's documents. The public has a right to inspect and obtain copies of documents held by the Registrar.^[36] Information can be requested and accessed by personal visit to one of the Information Centres, by telephone to the call centre in Cardiff, or online. The Companies House website^[37] provides free access to certain basic company information and also provides a full list of fees for providing copies of other documents filed with the Registrar of Companies. Contact details for Companies House are provided in Appendix 1 to this chapter.

2.30 A summary of the information available from Companies House is set out in Appendix 2 to this chapter. The information of most interest to a judgment creditor is likely to be contained in the company accounts, which every limited company is required to deliver to the Registrar of Companies under CA 2006, s 441. The accounts comprise the company's audited balance sheet and profit and loss account, together with the directors' and auditors' reports and, in the case of quoted companies, the directors' remuneration report. Where appropriate, the accounts will include group accounts.^[38]

2.31 Companies House also holds certain information which may be useful where the solvency of a company is of concern. All companies are required to file notice of appointment of a receiver or manager^[39] and the appointment of an administrative receiver.^[40] Details of any voluntary resolutions^[41] or orders^[42] for the winding up of the company and notice of the appointment of a liquidator^[43] must also be filed.

2.32 Some information can be obtained from Companies House as to the registered charges of a company. This will be relevant where there is a risk that the company may become insolvent since a judgment creditor will generally rank behind secured creditors in any claim to the company's assets.

2.33 Although the instrument creating a company charge is required to be sent to the Registrar of Companies as part of the process of registration, the instrument itself is returned to the company and only Form 395, setting out particulars of the charge, is retained. Form 395 and the register of charges can be obtained from Companies House but often will not contain vital information, in particular the amount of the charge.

2.34 A company must retain a copy of the instrument creating a charge at its registered office which is available for inspection by any creditor or shareholder of the company.^[44] Whether the charge instrument itself will reveal the actual amount secured will depend on the type of security. If it secures 'all monies', the judgment creditor will be none the wiser. It may, however, secure a loan of a fixed amount which will prove more useful if that amount is set out in the charge (although the charge may simply refer to amounts owed under a separate loan agreement).

2.35 In addition to filing various documents with the Registrar of Companies, CA 1985 or CA 2006 also requires a company to keep certain information in the form of registers (as provided in the relevant sections in whichever CA currently in force). These are usually required to be kept at the registered office of the company. Some of this information is open to inspection by the public.^[45]

2.36 It may also be worth noting that CA 1985 or CA 2006 makes provision for additional rights to inspect company documents in the case of a company's members, creditors and debenture holders (as provided in the relevant sections in whichever CA currently in force), and that directors have a common law right to inspect a company's books (subject to the court's discretion). Where the judgment creditor falls into one of these categories, these additional rights to inspect documents may be useful when it comes to enforcement (to the extent that they have not already been utilised during the course of litigation).

2.37 At common law the shareholders of a company have a right to inspect the documents of the company, including legal advice paid for using company funds.^[46] This principle applies to all companies irrespective of size or importance^[47] although it is subject to any contrary provision in the company's articles of association.^[48]

2.38 At common law the directors of a company have the right to inspect the company's books of account and other records so as to enable them to carry out their duties as a director. This right ceases upon the director's removal from office. The court retains a residual discretion whether or not to order inspection to be allowed. However, where there is no reason to suppose that a director is likely to be removed from office, the court will assume that a director is exercising his right in the interests of the company unless the court is satisfied that the director's intention is to abuse the confidence reposed in him as a director and to injure the company.^[49]

2.39 Finally, it is worth remembering that Bloomberg, Reuters and the London Stock Exchange may also be a source of information relating to transactions a company has entered into or its likely financial health. The internet may also provide general information about a company, particularly where the company or its group has its own website.

2.46 Where land is registered copies of the register of title for an individual property may be obtained from HM Land Registry. This may be helpful where the judgment creditor knows or suspects a property to be owned by the judgment debtor. Any person may inspect and take copies of any register of title of an individual property and any document referred to in the register of title.^[58] It is not possible for a judgment creditor to search for all land registered in the name of a particular person.^[59]

2.47 Searches to obtain the register of title can be performed in person, by post, fax, telephone^[60] and online.^[61] The register will identify the registered proprietor(s), any leasehold interests registered against that property and any registered charges over the property. The fee varies from £2 to £4 per individual register of title depending on how the request is made.^[62]

2.48 Where the charges register refers to a charge on the property the judgment creditor may wish to inspect the charge document to ascertain whether there is sufficient equity in the property to satisfy the judgment debt, either in whole or in part, after that charge has been paid off. A charge document received by HM Land Registry after 13 October 2003 may be inspected as of right.^[63] An application to view a charge document is made using Form OC2.^[64]

2.49 Any person filing documents with the Land Registrar who claims that a document contains 'prejudicial information' can ask that it is designated as an 'exempt information document' and thus not made publicly available.^[65] It may be the case that the party who registered the charge document applied for it to be an exempt information document. In such case the judgment creditor should apply to the Land Registrar to obtain a full copy of the document using Form EX2.^[66] The Land Registrar will consider the application and will serve a notice on the person who initially applied to designate the document as an Exempt Information Document allowing them to make representations.^[67]

2.50 Where the index map search reveals that the land is unregistered, the only means whereby a judgment creditor may be able to confirm that the judgment debtor owns the land is through requiring him to attend court with the relevant title documents using the Pt 71 procedure described in paras 2.127–2.264.

2.53 The Maritime and Coastguard Agency (MCA) maintains the UK ship register, which is a central register of UK merchant ships, fishing vessels and pleasure vessels. The Register is divided into four parts:

2.54 The register is a public record^[71] and any person is entitled on application to the MCA to obtain a certified transcript of the entries in the Register or to inspect entries in the Register during the official opening hours of the General Registry of Shipping and Seamen.^[72] The certified transcript of the entries in the Register sets out details of the ship and the owner. Ships may also be subject to mortgages and details of any registered mortgages will also be provided in the certified transcript of entries in the Register. However, the details of the mortgage are fairly brief and reveal little more than the identity of the mortgagor and mortgagee, the date of its execution and the number of shares in the ship that are mortgaged.

2.55 There is no online search facility for the Register of British Ships. However, enquiries can be made by telephone to determine whether any ships are owned by an individual or company. No fee is charged for this search. If any matches are revealed, then the name of the ship and its official number will be provided. A request for a certified transcript of the entries in the Register can then be made. There is no official form for the search and the request should be made by letter which can either be posted or faxed to the Registry of Shipping and Seamen. The fee is currently £13. Contact details for the UK Ship Register are set out in Appendix 1.

2.56 Lloyd's maintains both a Register of Ships and a List of Ship Owners, the hard copies of which are published annually. The List of Ship Owners provides details of ship owners worldwide and acts as a companion volume to the Register of Ships. The Register of Ships is a commercial register and, although there is no statutory requirement for registration of a vessel in the UK Ship Register, this may be required by a bank or insurance company. Trading vessels will usually be registered with Lloyd's as a consequence and the Register of Ships contains details of some 98% of the world's vessels of 100 gross tons or greater. Unlike the Register of British Ships, it is not confined to British registered ships and covers ships wherever registered in the world.

2.57 A search of the List of Ship Owners can be made through Lloyd's Information Services under the name of the individual or company to determine any ships owned. Searches can be ordered over the telephone, by post or by fax. Inquiries made by telephone, fax or post currently cost £125 plus VAT per ship. A search can also be made free of charge by personal attendance. A daily updated version of the registers is available online^[73] although this service is only available to subscribers. Contact details for Lloyd's Information Services are provided in Appendix 1.

2.58 If a ship is identified either from the UK Ship Register or the Lloyd's Register, Lloyd's Maritime Intelligence Unit offers a vessel tracking service. The service currently costs £100 per vessel per week. The service includes:

Contact details for the Lloyd's Marine Intelligence Unit are set out in Appendix 1.

2.59 The Aircraft Registration Section of the Civil Aviation Authority (CAA) maintains a register of UK registered aircraft.^[74] Searches can be carried out against a person's name to identify any aircraft owned by an individual or company and can be made free of charge using the CAA's website, by post, fax, telephone or inspection of the register.

2.60 For the same reasons as set out in para 2.54 above, it is also likely to be worth enquiring whether there is a mortgage over the aircraft. The CAA also maintains a register of mortgages over aircraft registered in the UK,^[75] known as the UK Register of Aircraft Mortgages. A search of the UK Register of Aircraft Mortgages can be requested by phone, fax, letter or email. The form to be used is CA350 and the current fee for the service is £25 per aircraft. Contact details for the CAA are provided in Appendix 1.

2.61 The Driver and Vehicle Licensing Agency (DVLA) maintains registers of drivers and vehicles. It does not provide a search facility against the names of registered keepers but does have a facility to allow vehicle registration numbers to be searched by any person who can show 'reasonable cause' for wanting the particulars.^[76] Any request should be made by writing a letter to the DVLA and enclosing a cheque of £5 per registration number to be searched. The DVLA will then make a decision as to whether the information is to be released. Telephone inquiries indicate that the DVLA generally considers a judgment creditor to have 'reasonable cause' although it requires a copy of the judgment before releasing any information. Contact details for the DVLA are provided in Appendix 1.

2.62 As noted in para 2.52, it is important to ascertain whether a vehicle is subject to hire purchase or a leasing agreement. HPI Limited provides a service to check whether a vehicle is subject to a credit or leasing agreement.^[77] Details for HPI Limited are provided in Appendix 1.

2.63 Unincorporated mutual societies commonly include building societies, friendly societies,^[78] industrial and provident societies and housing associations, but also include credit unions, benevolent societies and working men's clubs.

2.64 Friendly societies and certain other mutual societies are required to file certain documents at the Mutual Societies Registry.^[79] Since 1 December 2001, the Financial Services Authority (FSA) has taken over the functions of the Central Office of the Registry of Friendly Societies.^[80]

2.65 The fee to search a file at the Mutual Societies Registry is currently £26.50. In addition, copies of documents held on a Society's public record file can also be obtained.^[81] The records which can be obtained include the latest annual return, latest accounts, mortgages and charges, society rules and any winding up documents. Contact details for the Mutual Societies Registry are included in Appendix 1.

2.66 Subject to an express or implied agreement to the contrary, partnership books are to be kept at the partnership's place of business and every partner may have access to and inspect and copy them.^[82] However, partnerships (other than limited liability partnerships – see paras 2.40–2.42)^[83] are not required to make their accounts or partnership documents public.^[84] As a consequence it may be difficult to ascertain the assets of a partnership. However, individual partners remain jointly liable for the contractual debts and obligations of the partnership where the partnership has insufficient assets.^[85] A judgment creditor can therefore seek to obtain payment from the private estates of individual partners where the partnership has insufficient assets to satisfy a judgment debt.

2.78 Inquiry agents will commonly put the judgment debtor and his home and business under surveillance. If they enter onto the land of the judgment debtor to carry out such surveillance or to search through the judgment debtor's rubbish, this may amount to the tort of trespass and form the basis of an action for damages. Surveillance conducted on the judgment debtor's land, even from a highway crossing the land, may also amount to trespass.^[97]

2.79 In Jolliffe v Willmett & Co^[98] a husband and wife who lived apart were seeking a divorce. The wife believed that the husband was committing adultery with a Miss Henderson, the husband's part-time secretary. The wife's solicitors instructed an inquiry agent, an ex-policeman, to gather evidence of the alleged adultery. The matrimonial proceedings had been going on for a number of years and the husband had previously complained to the wife's solicitors of trespass by other inquiry agents. The letter of instruction from the wife's solicitors to the inquiry agent stated:

2.80 The husband was living in a flat which the wife had not lived in for many years and to which she had never possessed a key. In the course of his inquiries, the inquiry agent knocked on the door of the flat which was answered by Miss Henderson. (It was disputed whether the inquiry agent had posed as a policeman for this purpose.) Following this incident, the inquiry agent reported back to the wife's solicitor and it was agreed that the wife would accompany the inquiry agent on the next visit. The solicitor at no point instructed or gave permission for the inquiry agent to enter the husband's flat. A few days later, the inquiry agent and the wife returned to the husband's flat and, after posing as the postman, the inquiry agent forced entry when Miss Henderson answered the door. The wife and inquiry agent then proceeded to inspect the flat in spite of Miss Henderson's protests that they were trespassing. The husband, who was in bed upstairs, awoke to find the inquiry agent in his bedroom. Having indicated that the inquiry agent was trespassing and asking him to leave several times, a scuffle then broke out during which the inquiry agent struck the husband on the head.

2.81 The husband sued both the inquiry agent and the wife's solicitors seeking damages for trespass and assault. Geoffrey Lane J found the inquiry agent liable for trespass and assault, having held that the wife had no authority to grant the inquiry agent a licence to enter the flat.

2.82 As to the claim against the solicitor, Geoffrey Lane J held:

2.83 This case illustrates the importance of both taking care in the selection of an inquiry agent^[100] and providing the inquiry agent with instructions in writing, making clear that only legal means must be employed by the inquiry agent in the pursuit of his enquiries. In addition, such instructions should expressly prohibit the inquiry agent from sub-contracting work to other, potentially less reputable, organisations or purchasing material obtained by questionable means. Further protections that might be considered include a prohibition on acting without the solicitor's instructions and the provision of guarantees from the inquiry agent as to minimum levels of compliance and for security measures.^[101] Where oral instructions are given, it is essential for the solicitor to confirm these in writing or make an attendance note of the call in order to be able to demonstrate subsequently, where necessary, that nothing was done or said by the solicitor to suggest or encourage the use of illegal means.

2.84 It is possible that certain sorts of surveillance might amount to private nuisance. In Baron Bernstein of Leigh v Skyviews,^[102] flying over the plaintiff's property at a reasonable height for the purpose of commercial photography was held to be neither trespass nor private nuisance. However, the obligation of the court under the Human Rights Act 1998 to apply art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) (right to respect for private and family life) could possibly lead to a different result where the purpose of the flight was covert surveillance of a judgment debtor.

2.85 If an inquiry agent copies documents to which another person owns the copyright, he may be liable for breach of copyright to the copyright holder. This could lead to damages being awarded and/or an injunction for delivery up and destruction of the material subject to copyright.

2.86 A duty of confidence can arise in a variety of different circumstances. The leading case in this regard is Coco v AN Clark (Engineers) Ltd.^[103] Megarry J held that there are three elements essential to a cause of action for breach of an implied duty of confidence, namely:

2.87 Where a third party receives information knowing it to have been obtained in breach of confidence to another he will owe a duty of confidence to the confider.^[104] Unauthorised use of such information may render the third party liable for breach of confidence, which carries the risk of an order for compensation or an account of profits. The court might also grant an injunction restraining the use of the confidential information and/or an order for delivery up and destruction of the material containing the confidential information.

2.88 The House of Lords decision in Campbell v Mirror Group Newspapers Ltd^[105] , and that of the European Court of Human Rights in von Hannover v Germany,^[106] have increased the risk for private investigators that an action may be brought based on disclosure of information about a person's private life. In Campbell the court awarded damages for the disclosure of certain information about Naomi Campbell's private life on the basis of breach of confidence, while in von Hannover it was held that the applicant's rights under Article 8 of the European Convention had been infringed by the publication of photographs and articles relating to her private life. According to the Court of Appeal in Ash v McKennitt,^[107] "[I]n order to find the rules of the English law of breach of confidence we now have to look in the jurisprudence of articles 8 and 10."

2.90 The Data Protection Act 1998 (DPA 1998) provides certain safeguards to individuals relating to the use which can be made by others of personal data^[108] relating to that individual. The provisions of DPA 1998 only apply to individuals and do not apply to companies. A breach of certain sections of DPA 1998 is an offence and, in light of the wide-ranging provisions regarding the processing^[109] of personal data under DPA 1998, it is advisable to include a clear statement that the inquiry agent should pay due regard to the provisions of DPA 1998 in his written instructions.

2.91 Detailed consideration of the provisions of DPA 1998 is outside the scope of this book. However, it is worth noting that an inquiry agent will invariably obtain personal data as a consequence of his investigations into an individual judgment debtor's assets. DPA 1998 requires that personal data should be obtained fairly and lawfully.^[110] An inquiry agent should therefore give details of his identity, the uses to which the personal data may be put and any proposed disclosures of personal data to the provider of the information when required to do so. It should also be noted that DPA 1998, s 55 makes it an offence knowingly or recklessly to obtain disclosure, or procure the disclosure of, personal data without the consent of the data controller.^[111]

2.92 It is also worth noting that the Information Commissioner has endorsed the view taken by the Association of British Insurers^[112] that the relationship between the insurer and any inquiry agent instructed by the insurer is a controller-processor relationship within the meaning of the DPA. This means that the insurer must comply with the eight data protection principles set out in Schedule 1 of the DPA. The seventh data protection principle states that appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data. Whilst the Information Commissioner's view is not binding as a matter of the law, the Information Commissioner has argued that failure to comply with the seventh data protection principle constituted criminal recklessness for the purposes of s 55 DPA. Such an argument, if successful, may have very serious ramifications for those instructing inquiry agents, who are potentially exposed to the s 55 DPA offence if the inquiry agent does not comply with the seventh data protection principle.

2.93 Surveillance of a judgment debtor could, if badly managed, not only result in a civil liability (see paras 2.77–2.88) but fall foul of the harassment legislation. The Protection from Harassment Act 1997^[113] (PHA 1997) makes it both an offence^[114] and a civil wrong^[115] for a person to pursue a course of conduct which amounts to the harassment of another and which he knows or ought to know would amount to such harassment.^[116] Harassing a person includes alarming the person or causing the person distress.^[117] A course of conduct must involve conduct on at least two occasions^[118] and conduct includes speech.^[119]

2.94 Seeking to obtain unauthorised access to computer material is an offence under the Computer Misuse Act 1990 (CMA 1990).^[120] It is an offence intentionally to cause a computer to perform any function to secure unauthorised access^[121] to any program or data held in any computer.^[122] The intent does not need to be directed at securing access to any particular program or data, a program or data of any particular kind, or a program or data held in any particular computer.^[123]

2.95 Under the Regulation of Investigatory Powers Act 2000 (RIPA 2000), s 1, it is an offence intentionally and without lawful authority to intercept in the course of its transmission post, telephone calls and emails (although this is subject to a number of exceptions provided for by the statute and regulations made under it).^[124]

2.96 The fact that individuals often throw away items such as bank statements may tempt an inquiry agent to inspect a judgment debtor's rubbish in the search for information about his assets or finances. The taking of rubbish can amount to theft. In Williams v Phillips^[125] a number of dustmen were convicted of theft for taking items from rubbish bins. The Divisional Court held that the rubbish had not been abandoned as it had been left for the purpose of allowing the local authority to collect it, not for anybody to take it away. The rubbish therefore remained the householders' property until collected, at which point ownership passed to the local authority. The dustmen were therefore convicted of theft.^[126]

2.97 See paras 2.89 and 2.97.

2.101 While the Guide to the Professional Conduct of Solicitors lacks specific guidance on these matters, in September 2003 the Bar Council produced guidance on the use of illegally obtained evidence in civil and family proceedings which is available from the Bar Council website.^[129]

2.103 Prior to the introduction of the CPR, it had long been the rule that illegally obtained evidence was admissible provided it was relevant. Kuruma, Son of Kaniu v R^[130] contains one of the more robust judicial statements of this rule:^[131]

2.104     In one of the cases cited by their Lordships in Kuruma one judge even went so far as to say:^[132]

2.105 Under CPR Pt 32 the court now has an express power granting it a wide discretion to exclude evidence. CPR 32.1 provides:

2.106     The leading case on how the court will use this discretion to exclude evidence that has been illegally obtained by inquiry agents is the Court of Appeal decision in Jones v University of Warwick.^[133] The facts of the case were that the claimant had injured her hand in an accident at work. The defendant admitted liability but it was disputed whether the injury had the continuing debilitating effects alleged by the claimant. On two occasions inquiry agents acting for the defendant's insurers gained access to the claimant's home by posing as market researchers and used a hidden camera covertly to film the defendant in her own home. Having been shown the covertly recorded footage, the defendant's medical expert formed the view that the claimant's hand functioned entirely satisfactorily.

2.107 When the defendant attempted to rely on the evidence, the claimant applied to exclude it on the basis that the inquiry agent had obtained entry to her home by trespass and her right to privacy had been infringed under ECHR, art 8, which provides for the right to respect for private and family life. The right provided in art 8 is a qualified right such that it can only be interfered with by a public authority where such interference is in accordance with the law and necessary in a democratic society for certain specified purposes. Counsel for the claimant argued that since the court was a public authority^[134] it must exercise its discretion to exclude the evidence obtained by the insurer's inquiry agents in order to comply with ECHR, art 8.

2.108 The unanimous judgment of the Court of Appeal was given by Lord Woolf CJ, who summed up the balancing exercise the court had to perform:^[135]

2.109 On this occasion the Court of Appeal decided not to exclude the evidence. Lord Woolf CJ observed:^[136]

2.110 However, the Court of Appeal did not leave the matter there. In what must be read as a warning to future litigants seeking to rely upon evidence which has been illegally obtained by inquiry agents Lord Woolf CJ went on to say:

2.111 Lord Woolf CJ then observed that excluding the evidence is not the only weapon in the court's armoury. In particular, the court can reflect its disapproval of such conduct in the orders for costs which it makes in order to discourage future litigants from contemplating such steps. The Court of Appeal held that because the conduct of the insurers had given rise to litigation over the admissibility of the evidence, they should have to pay the costs of the proceedings to resolve that issue at first instance and on appeal, even though the appeal was otherwise dismissed. The Court also indicated to the trial judge that when he came to dealing with the question of costs he should take into account the defendant's conduct, and may consider that the costs of the inquiry agent should not be recovered. Further, if the trial judge found in favour of the claimant, he may wish to award her costs on an indemnity basis.

2.112 Lord Woolf CJ concluded:^[138]

2.113 A litigant who obtains evidence illegally therefore runs the risk not only of the evidence being held inadmissible but, even when the court will hear the evidence, facing severe cost sanctions.

2.114 Whether the conduct is so 'improper and unjustified' that a costs sanction should be imposed will be a question of fact in each case. In the Scottish case of Martin v McGuiness^[139] (where the relevant evidence had been held admissible by the lower court), the Scottish Outer House found that even if an inquiry agent had committed trespass by entering the claimant's house, it did not warrant the description of 'improper and unjustified conduct'. Similarly, engaging the claimant's wife in conversation did not amount to breach of the peace, not least since she did not ask the inquiry agent to leave. In the circumstances, there was no reason therefore to depart from the usual rule that costs follow the case. While the case could therefore be distinguished from Jones, Lord Bonomy stated:

2.119 The leading case on whether the iniquity exception will lead to a loss of legal professional privilege where evidence has been illegally obtained by inquiry agents is the decision of Rix J in Dubai Aluminium Co Ltd v Al Alawi.^[148] The plaintiffs had brought a fraud claim against Mr Al Alawi and others and had obtained a freezing injunction against Mr Al Alawi. Mr Al Alawi applied to discharge the freezing injunction.

2.120 One of the grounds relied upon by Mr Al Alawi to discharge the freezing injunction was that:

2.121 In support of this ground for discharging the freezing injunction, Mr Al Alawi sought disclosure of the reports and other documents relating to the investigations of his financial affairs by the plaintiff's inquiry agents. It was accepted by the plaintiff that these documents were relevant and discloseable but it was contended that legal professional privilege attached to them. Mr Al Alawi accepted that on the face of it legal professional privilege would attach to the documents but contended that it did not apply in these circumstances because they were part of or relevant to criminal or fraudulent or otherwise iniquitous acts or purposes. The acts complained of were first, that detailed information had been obtained about the defendant's bank, credit card and telephone accounts by the use of 'pretext calls' to the companies concerned and, secondly, that documents had been removed from Mr Al Alawi's dustbins and copied before being replaced. Mr Al Alawi alleged that the evidence had been obtained in contravention of the Data Protection Act 1984 or Swiss banking laws, or through trespass and conversion. The plaintiff put no evidence in opposition and indeed previous evidence from the plaintiff had admitted the use of 'pretext calls'.

2.122 The plaintiff submitted that no authority had extended the exception to privilege this far and that all the cases involving the exception concerned instances where solicitors had become involved, innocently or otherwise, with the planning or carrying out of iniquitous acts which were the subject matter of litigation.

2.123 The plaintiff's submission was rejected and the court ordered disclosure of the documents. Rix J first recognised that deciding this question involved balancing a number of competing public interests – the public interest in legal professional privilege, in combating crime and fraud, and in trying cases on all the relevant evidence. His observations that an approach where statutes were breached without any consequence for the conduct of the litigation could not be sanctioned have been noted in para 2.74. He continued:^[151]

2.124 However, as regards the information obtained from a search of Mr Al Alawi's dustbins, the court found that although it had been obtained through activities which constituted the torts of conversion and trespass, such civil wrongs do not fall within the crime, fraud or iniquity exception and thus the documents remained privileged.

2.125 The clear message from this case is that reports or documents relating to the investigations carried out by inquiry agents which have been obtained through crime, fraud or iniquity are unlikely to be protected by legal professional privilege.

2.126 Dubai Aluminium illustrates that practitioners should also be alert to the possibility of unlawful means being used by inquiry agents in making investigations abroad. The law of the country where the inquiries are being made may impose severe criminal penalties for breach of data protection, banking secrecy or other laws. In Dubai Aluminium there were allegations that information had been obtained in breach of Swiss laws of banking secrecy. This was central in the court's finding that legal professional privilege would not apply to documents generated as a result.

2.134 The application must be issued in the court which made the judgment or order which the judgment creditor seeks to enforce (unless the proceedings have since been transferred to a different court, in which case the application must be made in that court).^[157] The order will ordinarily require the judgment debtor to attend the County Court for the district in which he resides or carries on business,^[158] although there is no requirement to transfer the proceedings to the judgment debtor's home court before the application is issued.

2.135 An application for an order under Pt 71 may be made without notice.^[159] The application must be made using Form N316 if the judgment debtor is an individual, or Form N316A if the judgment debtor is an officer of a company or other corporation.^[160]

2.136 CPR 71.2(3) and Practice Direction to Pt 71, para 1.2 stipulate certain information which the application notice must contain. This consists of:

2.137 The standard form records of examination, Form EX140 (in the case of an individual judgment debtor) and Form EX141 (in the case of an officer of a company or corporation), list the standard questions which will be asked where an officer of the court conducts the examination. In the case of an individual, these relate to matters such as employment details, income, property, investments and other debts. Where the judgment debtor is a corporation, the officer will be asked about the company's operational and financial status and questioned about the company's assets and relationships with other group companies. The judgment debtor or company officer will also be required to produce certain documents at the hearing and the application Forms N316 and N316A list the types of document the order to attend court will include.

2.138 The standard questions asked and documents required at the hearing are discussed further in paras 2.166–2.169. However, in high value or complex litigation where the nature and holding of the judgment debtor's assets may well be more complex, the judgment creditor may not consider the standard form questions and document requests sufficient to extract useful information from the judgment debtor. He may therefore wish to file additional questions or requests for documents to be asked or made by the court officer when making his application, or alternatively attend the actual hearing to ask questions himself.^[163] Such questions should relate to the judgment debtor's ability to pay the judgment debt and questions which do not relate to this may be disallowed by the court. The scope of the questions which may be asked of the judgment debtor is considered further in paras 2.173–2.217.

2.139 A further consideration for the judgment creditor is the issue of who should carry out the questioning. The judgment debtor will be questioned by a court officer unless the court has ordered that the questioning shall be before a judge.^[164] The order will provide for the questioning to take place before a judge only if there are 'compelling reasons' to do so.^[165] Where the judgment creditor wishes to conduct the questioning himself (or through his counsel) before a judge, he must set out his reasons for this request in the application notice.^[166]

2.140 No guidance is provided on what constitutes 'compelling reasons'. However, in high value or complex litigation where the nature and holding of the judgment debtor's assets may be complex, the judgment creditor is likely to want to obtain an order that the questioning is conducted before a judge. This will allow the judgment creditor to retain control of the questioning process and utilise his full knowledge of the facts of the case to tailor specific questions to the judgment debtor's circumstances. A court officer, who will not have this detailed knowledge and who is working from a list of standard questions will not be able to conduct the examination with the same vigour. The reasons why the order is sought should therefore be carefully explained. However, it is important to note that while the examination may be carried out by counsel for the judgment creditor, the judge ultimately determines what questions can be put to the judgment debtor. As Hughes J observed in Mubarak v Mubarak:^[167]

2.147 In Société Générale du Commerce et de l'Industrie en France v Johann Maria Farina & Co^[177] it was held that the words 'an officer' of a body corporate included former officers of the company. In that case, judgment had been obtained against a company and an order had been made under one of the predecessor rules to Pt 71^[178] directing the examination of a named director of the company as to what debts were owing to it and whether the company had the means to satisfy the judgment debt. Upon examination, the director named in the order admitted that he was a director of the company at the time the judgment was made but refused to answer any further questions as to the debts due to and property of the company on the ground that he had ceased to be a director after the date of the judgment. The matter came before a judge who made an order that the director should attend to be examined. The director appealed against that order on the grounds that since the words of the rule were in the present tense, there was no power to order the examination of anyone who at that time was not an officer of the judgment debtor company.

2.148 The Court of Appeal dismissed the director's appeal. Lord Collins MR held:^[179]

2.149 Matthew LJ agreed:^[180]

2.150 Equally, there is nothing in the modern day language of Pt 71 which should preclude the examination of former officers of a company in such circumstances.

2.151 In Maclaine Watson & Co Ltd v International Tin Council (No 2)^[181] the Court of Appeal had to consider whether the RSC Ord 48 procedure applied to unincorporated associations. Order 48, r 1 provided for the examination of 'the judgment debtor or, if the judgment debtor is a body corporate, an officer thereo'. At first instance^[182] Millett J had (regretfully) upheld the master's decision that the International Tin Council (ITC) could not be examined under RSC Ord 48 since the wording of the Order did not give the court the power to order this.^[183] This was notwithstanding the fact that the ITC had been granted the legal capacities of a body corporate by statutory instrument because the statutory instrument fell short of deeming that the ITC was, or should be treated as, a body corporate. However, he ordered that the court had an inherent jurisdiction under Supreme Court Act 1981 (SCA 1981), s 37(1) to order the ITC to make full disclosure of its assets to the judgment creditors and that it was in accordance with the policy of the law to assist judgment creditors to do so.

2.152 On appeal, the correctness of Millett J's construction of RSC Ord 48 (as not applicable to unincorporated associations) was not challenged and the Court of Appeal upheld his decision to order the disclosure of ITC's assets under the inherent jurisdiction of the court. Both Millett J and the Court of Appeal appeared to be heavily influenced by the behaviour of the ITC, which Millett J noted:^[184]

2.153 The wording of Pt 71 refers to 'a judgment debtor or if a judgment debtor is a company or other corporation, an officer of that body'.^[185] It therefore seems that this 'lacuna' in the rules has been preserved and, although Pt 71 is no more concerned with the judgment debtor's legal status than was its predecessor RSC Ord 48, the correct means by which to seek to elicit information as to the assets of an unincorporated association is to ask the court to make an order requiring disclosure of its assets under SCA 1981, s 37(1).

2.154 While there is no case law on the availability of the oral examination procedure where the judgment debtor is a partnership, in light of the wording of Pt 71 and the judgment in Maclaine Watson, a judgment creditor who seeks to examine a partner as to the partnership assets would be well advised to make an application under Pt 71 and SCA 1981, s 37(1) in the alternative.

2.155 The procedure in Pt 71 cannot be used in respect of any order against the Crown.^[186] As already noted in Chapter 1, under CPA 1947, s 25(4) 'no execution or attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the Crown of any such money or costs'. 

2.163 The affidavit evidence of service must be sworn by the person who served the order – either the judgment creditor himself or his process server.^[198] The affidavit must provide details of how and when the order was served and should attach a copy of the order served.

2.164 Where service was effected through a process server, the judgment creditor must also file affidavit evidence stating either that the judgment debtor has not requested payment of his travelling expenses, or alternatively that the judgment creditor has paid a sum in accordance with such a request.^[199] Given that CPR 71.4(1) provides that the judgment debtor has seven days from service of the order in which to request a sum in payment of his travelling expenses, this affidavit evidence cannot be sworn before that time. The affidavit evidence should also confirm either that all the money owing to the judgment creditor when the application was issued remains unpaid or, alternatively, provide details of the balance owing if any payments have been received in the meantime.^[200] This evidence can either be in a separate affidavit to the affidavit on service or included in the process server's affidavit on the basis of information and belief. The affidavit for use in the country court (EX550) is a single affidavit in this form and could be used as a precedent for these purposes.

2.166 Where the questioning is conducted by a court officer he will ask a standard set of questions set out in Forms EX140 or EX141.^[202]

2.167 Where the judgment debtor is an individual (Form EX140) the questions cover matters such as his employment details, salary, benefits, other income, property, investments, other debts and any offer of payment the judgment debtor is prepared to make. In addition, the order to attend court for questioning will require the judgment debtor to produce certain documents at the hearing, including: pay slips, bank statements, building society books, share certificates and rent books, together with documents evidencing the judgment debtor's out-goings (such as his mortgage statement and utilities bills). He will also be required to bring documents relating to his business where he is operating as a sole trader (for example, bills owed to the business and its accounts).

2.168 Where the judgment debtor is a company or corporation (Form EX141) the company officer will be asked about the company's current operational status, its current financial status, its assets, its property, the company's liabilities and other matters such as details of other group companies and loans to employees. The officer will also be asked what, if any, offer of payment the company is prepared to make. The order to attend court will require the company officer to produce certain of the company's documents at the hearing, including bank statements, accounts, bills owed to the company, outstanding bills and other documents evidencing other liabilities owed by the company.

2.169 The judgment creditor or his representative may attend the hearing (although there is no requirement to do so) and may ask additional questions if he wishes to do so.^[203] Alternatively, he may ask the court officer to ask additional questions by attaching a list of proposed additional questions when filing the application.^[204]

2.170 The court officer will make a written record of the answers given on Form EX140/EX141 (unless the hearing is tape recorded). At the end of the questioning the court officer will read the record of the evidence given and ask the judgment debtor to sign it. If the judgment debtor refuses, the court officer will note the refusal on the record of evidence.^[205]

2.171 Where the hearing is before a judge the judgment creditor (or his representative) must attend and conduct the questioning.^[206] The standard questions in forms EX140 and EX141 will not be used.^[207] The proceedings will be tape recorded and the court will not make a written record of the evidence.^[208]

2.172 Where the questioning is conducted by the judgment creditor's representative there is greater scope for the questioning to take the form of a vigorous cross-examination with questions tailored to the specific facts or circumstances of the judgment debtor. In high value or complex litigation, particularly where fraud is involved, this more testing form of examination may be necessary if the judgment creditor is to elicit useful information.

2.173 The scope of the questions which can be put to the judgment debtor has been the subject of some debate. It is for the court to determine the scope of the questions the judgment debtor must answer.^[209]

2.174 In the 1880 case of Republic of Costa Rica v Strousberg,^[210] the Court of Appeal had to consider whether the questions which could be asked of a judgment debtor under one of the predecessor rules to Pt 71^[211] should be confined to asking the judgment debtor 'whether any and what debts are due to him'. The judgment debtor had attended before the court examiner but had refused to answer, among others, questions as to whether he had any other bank account than the one named, whether he was carrying on business, whether he had any contracts pending, whether any money was due to him for rent, or in fact any question other than what debts were due to him. The judgment creditor brought an application before the Vice-Chancellor for an order that the judgment debtor should be further examined and should answer those questions he had previously refused to answer.

2.175 The Vice-Chancellor observed:^[212]

2.176 He went on:^[213]

2.177 The judgment creditor appealed the Vice-Chancellor's decision on the basis that if the judgment debtor were entitled to restrict the examination to the simple question of whether any debts are due to him, the order would be a nullity. The Court of Appeal agreed. Lord Jessel MR observed:^[214]

2.178 He continued:^[215]

2.179 James LJ and Cotton LJ agreed, the former adding:^[216]

2.180 Strousberg was cited with approval in Mubarak v Mubarak,^[217] where Hughes J observed that under RSC Ord 48: 'The process is intended to be a severe and testing one.'

2.181 CPR 71.2(1) provides that the order will require a judgment debtor to attend court to provide information about 'the judgment debtor's means or any other matter about which information is needed to enforce a judgment or order.' The wider form of the modern wording would therefore in any event appear to preclude a judgment debtor from arguing that he is not obliged to answer a question on a technical interpretation of the rules.

2.182 A judgment creditor who intends to carry out an oral examination of a judgment debtor should tailor the questions asked with a view to eliciting information as to the assets of the defendant which may be available for enforcement. Reference to the types of assets amenable to third party debt orders, charging orders, writs of fieri facias and equitable execution as described in Chapters 3 to 6 of this book should inform the examination.^[218]

2.183 Mubarak also considered the power of the court to order a judgment debtor to produce documents under RSC Ord 48, which are now contained in CPR 71.2(6)(b). It is worth quoting from the judgment at length since Hughes J neatly summarises both the purpose of the oral examination procedure and the ancillary nature of the power to require the judgment debtor to produce documents as part of that process.

2.184 In considering the court's power to order the production of documents, Hughes J first observed the integral nature of the power to require the production of documents to the oral examination process:

2.185 He then went on to observe the flexible nature of the process:

2.186 He further observed that orders for the production of documents can be adjourned and can be both general and specific:

2.187 The court went on to examine the ambit of the expression relating to documents 'in the possession' of the judgment debtor in RSC Ord 48. CPR 71.2(6)(b) refers to documents in the judgment debtor's 'control'. Hughes J observed that since the present case concerned family proceedings it was not yet governed by Pt 71, but noted the different wording between the two rules and observed that the new rule in Pt 71 was consistent with the requirement for the judgment debtor to produce documents in his possession or power. His judgment stated:

And concluded:

2.188     In the present case, although the judgment debtor had great influence over the companies concerned and an apparent ability to manipulate their affairs in many ways, there was not such a complete merger of interests or unfettered control to enable the court to treat the companies as his alter ego and require production of the company accounts. This was the case notwithstanding the fact that he found the judgment debtor to have been on occasion evasive and untruthful since:

2.189 Finally, Hughes J observed two limitations to the procedure:

2.190 The question of the court's power under RSC Ord 48 to examine a judgment debtor as to his foreign assets was considered by the Court of Appeal in Interpool Ltd v Galani.^[220]

2.191     Interpool Ltd was a US company which had obtained a French judgment in the sum of US$8,196,000 against a Greek judgment debtor, Galani, in respect of guarantees he had given. Following the judgment, Mr Galani moved from Paris to London and the judgment was registered as a judgment of the High Court under the Foreign Judgments (Reciprocal Enforcement) Act 1933.^[221]

2.192 An order was made for Mr Galani's oral examination in relation to debts owed to him and as to his other property under RSC Ord 48. Mr Galani objected to answering any questions except those relating to any assets he may have within the jurisdiction of the English courts. This was on the grounds that the English court does not exercise extra-territorial jurisdiction and will not enforce its judgments by way of execution save as to assets which are within the jurisdiction. Since RSC Ord 48 was merely part of the machinery for the enforcement of judgments, any examination under RSC Ord 48 should be limited to assets within the jurisdiction.

2.193 While commending the attractive simplicity of the judgment debtor's arguments, the Court of Appeal rejected them. First, because it found that certain English enforcement procedures were not confined to English assets and, secondly, because there were policy reasons for rejecting the narrow construction of the rule for which the judgment debtor contended.

2.194 As regards the use of English enforcement proceedings to execute against foreign assets, Balcombe LJ first observed that RSC Ord 48^[222] contained no express reference to the locality of debts. He then made various observations on the jurisdictional scope of English enforcement procedures. He noted that there was no limitation in the provisions of RSC Ord 49, which at the time governed garnishee proceedings,^[223] that the garnished debt must be properly recoverable within the jurisdiction. Rather the court had a jurisdiction to garnish a foreign debt, albeit that it may choose not to exercise its discretion to do so. However, these observations must now be seen as wrong in light of their Lordships' decision in Société Eram Shipping Co Ltd v Compagnie Internationale de Navigation.^[224] (See further paras 3.67–3.79.)

Balcombe LJ then considered the court's jurisdiction to make a charging order. He commented that he could see no reason why the jurisdiction to make a charging order should be construed more narrowly than the garnishee jurisdiction and should therefore encompass foreign assets. Again, these observations must now be seen as wrong given the recent developments in the law relating to third party debt orders noted in the previous paragraph. However, Balcombe LJ considered that there were other reasons why there should be jurisdiction to examine a judgment debtor as to his interests under a foreign trust. First, such examination may be necessary to discover the nature and extent of the judgment debtor's interest in that trust, in part to see whether it is in fact a 'foreign' trust. Secondly, Charging Orders Act 1979, s 1(5) requires the court to consider all the circumstances of the case and, in particular, any evidence as to the personal circumstances of the debtor. The existence or otherwise of a judgment debtor's interest in foreign trusts or properties may be relevant to the court's determination of whether a charging order should be made.

2.195 Having concluded that the judgment debtor was therefore wrong in his submission that English enforcement procedure is confined to English assets, the Court of Appeal considered that there were also policy reasons for giving RSC Ord 48 the wider meaning for which the judgment creditor contended. Balcombe LJ noted that the provisions for the reciprocal enforcement of judgments between states were continuously expanding, as evidenced by the Civil Jurisdiction and Judgments Act 1982 (CJJA 1982), which had largely come into force the previous year. The court accepted counsel for the judgment creditor's submission that:^[225]

2.196     While not applicable in Interpool,^[226] the court also considered the provisions of art 16(5) of the Brussels Convention, which had since come into force by virtue of CJJA 1982, s 2(c). Article 16(5) provides that:^[227]

2.197     Balcombe LJ observed that:^[228]

2.198     Accordingly, the provisions of RSC Ord 48 were not limited to debts owed and assets located within the jurisdiction and the court had power to order a judgment debtor to answer questions intended to discover his assets outside as well as within the jurisdiction.

2.199     The decision in Interpool was considered by the Court of Appeal in Babanaft International Co SA v Bassatne,^[229] a case concerning the court's jurisdiction under SCA 1981, s 37(1) to issue an injunction restraining a defendant from dealing with its overseas assets. Accordingly, the court's comments on the Interpool decision in the Babanaft case are strictly obiter. Lord Justice Kerr specifically noted that the orders for the disclosure of assets abroad pursuant to RSC Ord 48 were not in issue in that appeal and added an 'emphatic note of caution'^[230] in relation to those parts of his judgment which had not been canvassed in the arguments of counsel. However, he observed:^[231]

2.200 Lord Justices Neill and Nicholls agreed that Interpool had established that there is no objection in principle to the judgment debtor being required to disclose overseas assets under RSC Ord 48. However, the latter added an addendum to his judgment in the following terms:^[232]

2.201 He concluded that in light of the unforeseen consequences that an order for the disclosure of information could potentially have, the court may need to take steps to control the use made of such information overseas.^[233]

2.202     Interpool was also cited with approval by the Court of Appeal in Maclaine Watson.^[234] As discussed at paras 2.151–2.153, that case considered the court's jurisdiction to order a judgment debtor to disclose his assets under SCA 1981, s 37(1). Kerr LJ observed:^[235]

2.203     The Court of Appeal's decision in Interpool was considered by the House of Lords in Société Eram Shipping Company v Compagnie Internationale de Navigation.^[236] Their Lordships noted that the Interpool decision had considered RSC Ord 48 procedure rather than the garnishee jurisdiction, which was the subject of the Société Eram appeal.^[237] In their Lordships' view the comments made in Interpool as to the nature of the garnishee jurisdiction (see para 2.191) were erroneous.^[238] However, as has been noted, the Court of Appeal did not base its decision in Interpool solely on the availability of English execution steps against foreign assets. The Court also took into consideration wider policy arguments. One of the principal reasons for their Lordships' finding in Société Eram that the English courts have no jurisdiction to garnish a foreign debt was that the garnishee process operates not as an in personam order against a third party but rather has proprietary consequences and takes effect as an order in rem against the debt owed by the third party.^[239] Their Lordships' criticisms of the Interpool Court of Appeal's analysis of the garnishee jurisdiction would not seem to extend to that Court's finding that oral examination proceedings may be used in relation to overseas assets, since, in contrast to garnishee proceedings, neither RSC Ord 48 nor Pt 71 proceedings seek to assert any in rem jurisdiction over assets (whether located in the UK or overseas). Accordingly, the Pt 71 procedure should be available to elicit information as to a judgment debtor's foreign assets.^[240]

2.204 In an article written shortly after the Court of Appeal's decision in Interpool,^[241] Peter Kaye reviewed the Interpool judgment and the comments passed on it in Babanaft. Kaye concludes that while the English Court has the power to order disclosure of foreign assets under the RSC Ord 48 procedure, it lacks jurisdiction to do so where the application is being brought for the purpose of foreign enforcement proceedings.

2.205 Kaye draws a distinction between those cases outside and cases governed by the Brussels Convention (and by implication the Lugano Convention and the Brussels Regulation, which contain equivalent provisions).^[242] However, in both cases Kaye concludes that the English courts lack jurisdiction to order the examination of a judgment debtor to the extent that those proceedings contemplate enforcement proceedings overseas.

2.206     As regards jurisdictions outside the Brussels regime, from the passage from Interpool cited in para 2.197, Kaye concludes that:

and continues:^[243]

2.207     In Kaye's view, the 'clear implication' of the passage in Interpool cited in para 2.197,^[244] is that the English court would lack jurisdiction to make an order under RSC Ord 48 for the purpose of foreign enforcement proceedings. However, it is questionable whether Kaye's interpretation is in fact the 'clear implication' of that passage. The court may simply have meant that by asking a question of a judgment debtor over whom it has personal jurisdiction about the existence of foreign assets, the English court is not asserting jurisdiction over any overseas assets which that person may hold.

2.208 As regards the position under the Brussels Convention, Kaye concludes:

2.209 Thus he concludes that rather than the oral examination procedure being available in support of foreign proceedings:^[246]

2.210 Accordingly, Kaye concludes that oral examination orders are prohibited where they are sought for the purposes of enforcement proceedings taking place outside the jurisdiction of England and Wales.

2.211 Kaye notes that this situation appears unsatisfactory, partly because it is at odds with the position under the Conventions in relation to disclosure ancillary to interim injunctions,^[247] and further because this interpretation raises both the cost and complexity of discovering the location of a judgment debtor's assets. It would mean that the judgment creditor^[248] may have to go to each of the EU states to obtain an order for examination as to the judgment debtor's assets so as to discover what, if any, assets are located in that particular EU state before issuing execution proceedings. Further, Kaye's conclusion that oral examination proceedings are precluded to the extent that they 'contemplate' foreign enforcement^[249] begs the very question: until a judgment creditor has information as to the location of a judgment debtor's assets, he will not be able to 'contemplate' enforcement proceedings, whether in the UK or anywhere else.

2.212 While Kaye may be correct that amendment of the Brussels and Lugano Conventions and the Brussels Regulation is necessary to avoid this spectre,^[250] his interpretation of the RSC Ord 48 procedure is manifestly at odds with the purposes and intent behind the Convention regimes.^[251] Section 5 of the Jenard Report,^[252] which by virtue of CJJA 1982, s 3 is admissible in the English courts as an aid to the construction of the Brussels Convention, discusses what meaning is to be given to the expression 'proceedings concerned with the enforcement of judgments':

Problems arising out of such proceedings come within the exclusive jurisdiction of the courts of the place for enforcement.

The footnote to the last paragraph adds:

2.213 The oral examination procedure would not obviously seem to fall within the types of proceedings listed in s 5 of the Jenard Report or the footnote to that section.

2.214 Further, as Kaye himself observes, the European Court of Justice's favoured approach of adopting a strict construction of art 16 is based upon proximity of subject-matter of the types of dispute prescribed in that article to the territories of competent courts. In Reichert v Dresdner Bank AG,^[253] a case decided after Kaye's article was published, the European Court of Justice was asked to consider whether the 'action paulienne' under French law (which allows a creditor to obtain the revocation of a transaction whereby the debtor has effected a disposition in fraud of the creditor's rights) qualified as 'proceedings concerned with the enforcement of judgments'. The European Court of Justice held, in a passage that sheds considerable light on the scope of art 16(5), that:

2.215 The court then referred to s 5 of the Jenard Report quoted in para 2.212 and concluded that although the 'action paulienne' under consideration:^[254]

2.216 The procedure which was set out in RSC Ord 48, and which is now contained in Pt 71, is not strictly a method of enforcement at all, since it is not in itself designed to extract payment from the judgment debtor. While Pt 71 proceedings may be a precursor or 'preparatory' to the enforcement steps contemplated by art 16(5) of the Brussels Convention^[255] (as was the action paulienne, in Dresdner), they are not enforcement proceedings in their own right. While it seems obvious that proceedings to seize an asset owned by a UK domiciliary which is located in Germany should be brought in Germany, the provisions of art 16(5) should not override the bedrock provisions of art 2 of the Convention regime^[256] to require that proceedings to examine that UK domiciliary as to what assets he has in Germany should be held in Germany simply by virtue of the fact that he holds some assets which are located in Germany.^[257]

2.217 This mirrors the view taken by the Court of Appeal in Masri v Consolidated Contractors International Co SAL^[258] in the context of an application for an order for appointment of a receiver by way of equitable execution.^[259] The appellant judgment debtor argued that such an order could not be made on the basis that it would amount to a form of enforcement and fell within art 22(5) of Regulation (EC) 44/2001. The Court of Appeal rejected this contention, holding that the appointment of a receiver in respect of a judgment debtor's assets was not enforcement but only a step which might lead to enforcement. There is no reason why the Pt 71 procedure should be viewed as constituting actual enforcement any more than does the appointment of a receiver. This was confirmed by the Court of Appeal in a later decision in Masri^[260] in which Sir Anthony Clarke MR said '…the only purpose of Part 71 is to assist the enforcement of a judgment debt. It is this ancillary to the proceedings in which the judgment was obtained.'

2.218 In conclusion, therefore, the better view would appear to be that the English courts should have jurisdiction over UK domiciliaries to order disclosure of foreign assets under Pt 71 for the purpose of foreign enforcement proceedings.

2.225 CPR 71.8(2) gives the judge to whom the matter is referred discretion^[270] to make a committal order against the judgment debtor, subject to the provisions of CPR 71.8(3) and 71.8(4):

2.226 Once the suspended committal order has been made it must be personally served on the judgment debtor in accordance with the rule in CPR 71.3, and an affidavit of service must be filed in accordance with CPR 71.5(1) and (2).^[274] However, there is no requirement to offer the judgment debtor travel expenses to attend the subsequent hearing.

2.227 If the judgment debtor attends court in accordance with the terms of the suspended committal order, the examination will then take place and the suspended committal order will be discharged.^[275]

2.228 If, however, the judgment debtor fails to attend court at the time and date specified in the suspended committal order and it appears to the judge or the court officer that the judgment debtor has been duly served with the order, the failure to attend will be certified in writing.^[276] Alternatively, if the judgment debtor fails to comply with any other term on which the committal order was suspended, this will also be certified in writing and the judge or court officer will set out details of the non-compliance.^[277]

2.229     If the judgment debtor fails to comply with any term on which the committal order is suspended, he shall be brought before a judge to consider whether the committal order should be discharged.^[278] A warrant for the judgment debtor to be brought before the court (rather than being taken to prison) may be issued by the court on the basis of a court certificate that the judgment debtor failed to comply with the terms of a suspended committal order (see previous paragraph).^[279] The judge^[280] will then consider whether or not the committal order should be discharged.

2.230 The judge will discharge the committal order unless he is satisfied beyond reasonable doubt that the judgment debtor has failed to comply both with the terms of the original order to attend court and the terms on which the committal order was suspended and that both orders have been duly served on the judgment debtor.^[281] A criminal standard of proof is therefore imposed and the judge may discharge the committal order for procedural irregularity if, for example, he is not satisfied that the orders have been properly served. Committal is an extreme remedy and will not be used unless the rules are strictly complied with.^[282] The notes to the White Book observe that, in practice, the committal order is invariably discharged at this hearing because the judgment debtor agrees to be examined there and then, thus completing the purpose of Pt 71.^[283]

2.231 If the judge decides that the committal order should not be discharged, a warrant for committal will be issued immediately^[284] and the judgment debtor will be taken to prison to serve the sentence. The sentence for committal is a maximum of two years.^[285]

2.232 Much of the effectiveness of Pt 71 will depend on the nature of the questions asked and, of equal importance, truthful answers being given. This raises the question of whether a judgment debtor who can be shown to have given untruthful answers during an oral examination can be liable for committal. Although the provisions of CPR 71.8(1)(c) that the matter may be referred to a judge where a judgment debtor 'otherwise fails to comply with the order' might be read as suggesting that the power of committal extends to untruthful answers being given, it would seem that committal is not available in these circumstances.

2.233 The Report on the First Phase of the Enforcement Review published in July 2000 specifically considered the question of whether the sanction of committal should be available in the event of a judgment debtor providing untruthful answers during the oral examination procedure. It noted that reaction to the proposal to extend the committal power to a judgment debtor who had given untruthful answers had been mixed. The majority of panel members were concerned that a civil procedure with equivalent effect to trying a judgment debtor for perjury may not maintain the strict criminal standard of proof and that civil judges may be over-eager to impose a custodial sentence.^[286]

2.234 However, the Report also noted the merit in the argument that the court should take responsibility for ensuring its own integrity and punishing those who seek to abuse that integrity,^[287] pointing out that lying in a civil court should be punished as a civil offence (particularly if the criminal justice system was unwilling or unable to take responsibility for doing so). It was also argued that lying during the course of an oral examination should be viewed as a contempt of court in the same way as failing to attend or refusing to answer questions.

2.235     The Report concluded with a specific recommendation that the committal power be extended to situations in which the debtor fails to answer questions truthfully,^[288] but suggested that this would need to be taken forward by enacting primary legislation as part of a more general streamlining of the contempt procedures.^[289] In the absence of such legislation, it seems that committal is not available, and the somewhat unsatisfactory distinction remains between a judgment debtor who refuses to answer questions and one who avoids the sanctions for contempt by attending the hearing and providing untruthful answers.

2.236 In the absence of committal, the only sanction against a judgment debtor who gives untruthful answers during an oral examination may be a criminal prosecution for perjury. However, as the Report on the First Phase of the Enforcement Review notes:^[290]

2.237 A conviction for the offence of perjury must satisfy the criteria under Perjury Act 1911, s 1(1), that the witness: (a) was lawfully sworn in a judicial proceeding; (b) made a false statement wilfully (rather than by mistake); (c) knew it was false or did not believe it to be true; and (d) that the statement was material to the proceedings.

2.238 The case would have to satisfy strict evidential requirements^[291] and the Crown Prosecution Service (CPS) will not prosecute if they do not think it is in the public interest. As the Report states:^[292]

2.239 However, there have been cases where a conviction for perjury has been made where a defendant has lied about assets. In R v Shamji^[293] an appellant was examined before a master and told various lies about his assets. In convicting him to 15 months' imprisonment for perjury, the court commented:^[294]

2.240 While the prospect of a conviction for perjury may encourage a judgment debtor to tell the truth under oral examination, this may seem a remote risk and is likely to occur only in the most serious cases or when the court is faced with a judgment debtor who has a history of dishonest conduct. A prosecution for perjury cannot force a judgment debtor to tell the truth and a conviction for perjury may do little to enhance the chances of a judgment creditor successfully enforcing his judgment.

2.242 Under the privilege against self-incrimination, no person can be compelled to answer questions or produce documents, in civil or criminal proceedings, which may expose him to criminal proceedings.^[295] The privilege is set out in the Civil Evidence Act 1968, s 14^[296] which provides the privilege excuses the production of documents or the answering of questions which, but for the privilege, would have to be produced/answered. However, it does not excuse the disclosure of the existence of such documents, only their production.

2.243 There have been a number of statutory modifications to the privilege whereby defendants who make disclosures are given specific statutory protection in relation to the prosecution of particular offences.^[297]

2.244 Although the privilege against self-incrimination can be invoked by a person for his own protection or that of his spouse it cannot be invoked for the protection of a third party.^[298] Although there seems to be no reason why the privilege should not apply where disclosure of information by a director, servant or agent of a company would tend to incriminate the company, this has so far been left undecided.^[299]

2.245 A person relying on the privilege must satisfy the court that disclosure of the information would tend to expose him to proceedings for a criminal offence or the recovery of a penalty. There must be a reasonable risk that self-incrimination would be the result of providing the information;^[300] the privilege may not be claimed on the basis of a mere possibility that the facts might lead to exposure to criminal proceedings.^[301]

2.246 In Den Norske Bank ASA v Antonatos^[302] the Court of Appeal thought that in cases where possible self-incrimination issues existed, it would also be inappropriate to make disclosure orders under asset-freezing injunctions and orders for cross-examination on disclosure affidavits.^[303] By analogy, a judgment debtor ordered to attend court pursuant to Pt 71 proceedings could therefore potentially invoke the privilege against self-incrimination to refuse to answer questions.

One way round this possible obstacle to obtaining information may be to seek an assurance from the CPS that they would not use information disclosed in the examination for the purposes of prosecuting the person who made the disclosure. In United Norwest Co-operatives Ltd v Johnstone^[304] the Court of Appeal considered the right of defendants to civil fraud proceedings to invoke the privilege against self-incrimination in the context of an order for a disclosure ancillary to Anton Piller and Mareva injunctions. The Court held that where the CPS had given an assurance that it would not use the information disclosed for the purposes of prosecuting the defendant, and in reliance on that assurance or a court order made as a result of it the defendant disclosed self-incriminatory information, the court would not assist the CPS to obtain the information by the exercise of its statutory powers. However, where no assurance had been given by the CPS and the CPS had not consented to the order for disclosure in these terms, the court would not withhold its assistance.

2.247 The privilege against self-incrimination may potentially therefore frustrate a judgment creditor's attempts to enforce his judgment using the Pt 71 procedure (see also para 2.249). A further consideration is that a judgment creditor who obtains information from a judgment debtor as to his assets which is self-incriminatory would need to be mindful of the provisions of PCA 2002 (see para 2.89) which criminalises, among other things, the acquisition, use and possession of criminal property.^[305]

2.249 As regards art 6, the possibility that the Pt 71 procedure could lead to a defendant incriminating himself would seem to be the most likely potential infringement of art 6. In Saunders v UK^[306] the European Court of Human Rights held that evidence obtained under compulsion cannot be used in subsequent criminal proceedings. As has been noted in para 2.243, a number of statutes have been amended to provide that, whilst the privilege against self-incrimination is abrogated in respect of disclosure in civil proceedings, the evidence will not be admissible in subsequent criminal proceedings. Case law in relation to search orders and freezing injunctions suggests that a court would be unlikely to order a judgment debtor to answer a question put to him in an oral examination under Pt 71 where self-incrimination issues may arise.^[307] The likelihood of an art 6 infringement during the course of Pt 71 proceedings therefore seems remote.

2.250 Under art 8 ECHR, everyone has the right to respect for his private and family life, his home and his correspondence. A procedure for compulsory examination and production of documents could therefore potentially infringe this right.

2.251 However, the right to respect for private and family life under art 8 is qualified. The second part of art 8 states:

2.252 A number of these qualifications may be relevant in the context of Pt 71 proceedings. A system whereby judgment creditors can recover sums rightfully due to them by recalcitrant judgment debtors is likely to be necessary 'in the economic well-being of the country'. Similarly, an infringement of the judgment debtor's right to privacy in relation to his assets is likely to be necessary to protect the rights and freedom of the judgment creditor to obtain the sums rightfully due to him. The Strasbourg jurisprudence recognises as a necessary incident of the right to a fair trial the right of a judgment creditor to obtain effective enforcement of his judgment (see further Chapter 1).

2.253 One possible situation where art 8 infringements may apply is where an oral examination is sought in relation to a judgment debtor who has been ordered to pay a judgment debt by instalments and is up to date with the schedule of payments. While the CPR Pt 71 procedure is available in such circumstances, it is less clear that the infringement to the judgment debtor's right to privacy would be justified in such circumstances, not least since the court would be likely to have taken the judgment debtor's circumstances into account in ordering payment by instalments. In any event, instalment orders are unlikely to apply in high value commercial litigation.

2.254 As has been noted at the start of this chapter, the notes to the White Book^[308] submit that the CPR Pt 71 procedure is compliant with Strasbourg jurisprudence. To date there have been no challenges to the CPR Pt 71 procedure from a human rights perspective, though some commentators^[309] have suggested the procedure is not compliant. Whether such challenges will follow remains to be seen.

2.260 The First Phase of the Enforcement Review^[316] made various recommendations for reform of the oral examination procedure. A number of these (such as the introduction of a standard oral examination questionnaire and the replacement of postal service of the order to attend court with the requirement for personal service) have been implemented with the introduction of Pt 71 under the Civil Procedure (Amendment No 4) Rules 2001.^[317] However, some proposals remain recommendations. The most important of these is the proposal for the introduction of Data Disclosure Orders (DDOs), whereby the court would have the power to require third parties to provide information about a judgment debtor's assets to aid the enforcement process.^[318]

2.261 The DDO proposal specifically responds to two of the key criticisms of the oral examination procedure, namely that it requires a high degree of co-operation from the judgment debtor and that there is no way for the judgment creditor to check the information obtained from the judgment debtor.

2.262 The March 2003 White Paper on Effective Enforcement envisaged a number of post-judgment situations in which a DDO might be available, although the possibility of obtaining a DDO before judgment was rejected,^[319] largely on the grounds that to allow a judgment creditor to ask for such information before a judgment would raise concerns in the areas of data protection and human rights. Notably, the White Paper envisaged that a DDO should be available where either the judgment creditor or the judge believes that the judgment debtor has lied on oath at the oral examination hearing. Potentially, this not only provides a viable alternative to prosecuting the judgment debtor for perjury but may also mean that the judgment debtor will be less inclined to perjure himself in the first place (since he will know that a DDO could result in the truth being obtained).

2.263 In order to limit any abuses and ensure the process is compliant with data protection and human rights concerns it was not proposed that information received pursuant to a DDO would be released directly to the judgment creditor. Rather the court will consider the information and the results of the DDO will be sent to the judgment creditor in a form which will also indicate the enforcement methods which the court considers are available. It is not intended that the DDO should result in any automatic enforcement rights; the judgment creditor will need to take enforcement steps on the basis of the information supplied pursuant to the DDO.

2.264 Part 4 of the TCEA 2007 adopts the White Book proposals by introducing two new mechanisms to obtain information: Information Orders (applicable to the private sector), and Departmental Information Requests (applicable to the public sector). However, at the time of writing, these provisions are not yet in force.