This is a chapter from the Bloomsbury Professional book Commercial Enforcement, 2nd Edition, which is a step-by-step guide to applying successfully for all methods of enforcement for High Court money judgments. The leading book on this subject, it has been quoted as authoritative in some commercial enforcement cases. It provides legal advisers, both in practice and in-house, with practical guidance on the process of preparing for and applying for various methods of High Court judgment; including obtaining information about a judgment debtor’s assets; third party debt orders; charging orders; writs of fieri facias (or warrants of control); appointing a receiver by way of equitable enforcement and interest on judgment debts. It also provides detailed analysis of the legal issues and underlying case law surrounding each method of enforcement. This edition covers the effects of the Tribunals Courts and Enforcement Act 2007, as well as a number of significant cases which have taken place since the last edition. With easy access to crucial background, materials and commentary, it can allow you to pursue recovery of a judgment in the most efficient and successful way possible.
Table of Contents
2.1 As has been noted in the Introduction, it is for the judgment creditor, not the court, to enforce his judgment. The civil justice system provides various procedures to assist the judgment creditor in this process, which form the subject of this book. However, enforcement can be an expensive and time-consuming process and ineffective or abortive enforcement amounts to nothing more than an additional source of loss for the judgment creditor.
2.2 Where a judgment creditor is faced with a judgment debtor who will not pay it will often be prudent to take steps to obtain information about the judgment debtor's assets before commencing proceedings for enforcement. The ability to select an effective method of enforcement depends fundamentally on the information the judgment creditor possesses on the assets held by the judgment debtor. Taking steps to obtain such information will allow the judgment creditor to make an informed decision as to whether to pursue enforcement, and if so, which method or methods of enforcement are likely to prove most fruitful.
2.3 For the reasons discussed in Chapter 1, the claimant should consider the availability of assets for enforcement at the outset of any litigation. Steps to preserve assets may have been necessary before or during proceedings in the event that the claimant suspects the defendant may attempt to dissipate his assets in order to render himself 'judgment-proof'. Disclosure during the course of litigation by the defendant or third parties may also have provided the judgment creditor with valuable information relating to the judgment debtor's assets.
2.4 As well as direct investigations into the judgment debtor's means, it may also be worth considering whether there are any assets belonging to the judgment debtor that are being held in another person's name, particularly where the judgment creditor knows or suspects that the judgment debtor has concealed assets in an attempt to evade payment. For example, it may be possible to establish that money held in a bank account in the name of the judgment debtor's spouse is actually beneficially owned by the judgment debtor, and thus held on trust for the judgment debtor by the spouse. Alternatively, it may be the case that a company is so closely associated with the judgment debtor that there is a complete merger of interests or unfettered control of the company by the judgment debtor so as to enable the court to treat the company as the judgment debtor's alter ego. If so, the company's assets may be liable to execution.
2.5 This chapter describes various methods a claimant can use to obtain information about a defendant's assets once judgment has been obtained. While the judicial machinery of Pt 71 of the Civil Procedure Rules 1998 (CPR) (which provides for orders for a court examination of a judgment debtor to obtain information about his assets) is only available after judgment, there are a variety of public sources of information that may reveal important information about a judgment debtor's means even prior to judgment. In certain circumstances, it may also be worth considering instructing an inquiry agent to carry out more detailed investigations. Each of these three routes of inquiry is dealt with in this chapter.
2.6 The procedure for a court examination of judgment debtors has been the subject of considerable discussion in the context of reform. The March 2003 White Paper on Effective Enforcement states: 'Access to better information is the key to effective enforcement.' The premise that effective enforcement is unlikely without accurate information underlies many of the proposals for reform of the law on enforcement currently being considered by the Department of Constitutional Affairs.
While the procedure set out in Pt 71 can form the cornerstone to a successful enforcement process, it has itself been the subject of some criticism, particularly from a human rights perspective. Some of the criticisms which have been made of the oral examination process and some of the proposals for its reform are considered at the end of this chapter.
2.7 It is also notable that the commentary to Pt 71 in the White Book states that:'The new procedure is clearly intended to be ECHR compliant and it is submitted that it is.' Whether further reform of the process will be required as a consequence of human rights challenges remains to be seen.
2.8 Before incurring the expense of instructing inquiry agents or commencing Pt 71 proceedings, it is worth noting that considerable information relating to a judgment debtor's assets is potentially available through public sources. Much of the information available through public sources is either free or relatively inexpensive to obtain. The use of such sources is likely to be a relatively painless and prudent first step that should avoid wasting costs in fruitless enforcement proceedings. It should also be noted that an increased amount of information held by public authorities has been made available under the Freedom of Information Act 2000 (FIA 2000) from 1 January 2005. Under the terms of the FIA 2000, any person making a request for information to a public authority is entitled (subject to the exemptions set out in the FIA 2000) to be informed in writing by the authority whether it holds information of the description specified in the request and, if that is the case, to be provided with that information. This may create further opportunities for judgment creditors to access information about a judgment debtor that is held by a public authority.
2.9 Recourse to public sources of information may also have been made prior to the commencement of litigation, particularly where there are doubts about a potential defendant's solvency or worth. It may be the case that the information available from some of the sources outlined in this chapter can be employed much more usefully at an earlier stage in the litigation. However, for completeness, those sources which are most likely to be useful in the context of commercial enforcement are included here.
2.10 Before taking any enforcement steps it is worth considering whether the judgment debtor is solvent. If not, enforcement proceedings are unlikely to be worth pursuing.
2.11 The interplay between the insolvency regime and enforcement proceedings is considered generally in Chapter 1 and in each of Chapters 3 to 6 which deal with the various methods of enforcement. However, for present purposes, it is worth noting that a judgment creditor who has issued execution against the property of a judgment debtor or attached any debt due to the judgment debtor who is subsequently wound up (in the case of a company) or made bankrupt (in the case of an individual) is not entitled to retain the benefit of the execution or attachment against the liquidator or trustee in bankruptcy unless he has completed the execution or attachment before the commencement of the winding up or bankruptcy.
2.12 As a consequence, if there are any doubts as to the judgment debtor's solvency, the judgment creditor should check whether a petition for bankruptcy or winding up has been presented before enforcement proceedings are commenced. Where the judgment debtor is an individual, a bankruptcy search should be carried out. In the case of a company, a winding up search should be made. A range of insolvency notices are required to be published in the London Gazette. A great deal of historical information is also freely available from the London Gazette website, although the most recent information requires a subscription.
2.14 All bankruptcy petitions and bankruptcy orders filed in England and Wales are automatically notified to the Chief Land Registrar to be registered in the register of pending actions and the register of writs and orders affecting land respectively. Both of these registers are held at the Land Charges Department.
2.15 The search can be made over the telephone. 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. Unlike the Land Charges Register, this search will not reveal bankruptcy petitions and thus gives no warning of an impending bankruptcy. However, it does reveal individual voluntary arrangements 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, by post or fax to the Insolvency Service's headquarters in Birmingham, or in person at the office of the local Official Receiver. 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. Contact details for the Insolvency Service are given in Appendix 1.
2.21 Where the judgment debtor is a company, an insolvency search can be carried out at the Central Registry of Administration and Winding Up Petitions at the Companies Court in London. The search will reveal any petition or orders for the winding up of the company made in England and Wales. However, in the case of companies in administration, only administrations in the High Court in London will be revealed.
2.22 The Central Registry can be searched by either personal attendance at Companies Court Central Office or by telephone. Telephone searches are free of charge for up to three company names. Contact details for the Companies Court Central Registry are provided in Appendix 1.
2.23 The Central Registry only maintains records of compulsory winding up petitions or orders. To find out whether a company has commenced a voluntary winding up, a search should be made at Companies House (see para 2.29).
2.24 Where there are doubts about a judgment debtor's solvency, it may also be worth making a search of the Register of Judgments, Fines and Orders. This contains details of all High Court and County Court judgments in England and Wales. It will therefore provide information about other creditors of the judgment debtor and may serve as an early warning signal that further pursuit of a judgment debtor is unlikely to be worthwhile. The Register of Judgments, Fines and Orders is maintained by Registry Trust Ltd. The information held in the register is public.
2.25 The information held on the register comprises the judgment debtor's name and address, the amount of the judgment (including costs), the court which entered the judgment, and the case number. Entries are kept on the register for a period of six years from the date of the judgment before they are cancelled. Claims satisfied within one calendar month of the judgment being entered can be removed from the register. If the judgment debtor satisfies the judgment after one calendar month, the entry will remain on the register for six years (although the judgment debtor can apply for a note to be made on the register denoting the satisfaction of the judgment).
2.26 Certain judgments or orders are exempt from registration. Where a judgment or order was made after a contested hearing, the judgment or order will not be entered on the register until the judgment creditor takes any step to enforce the judgment or to obtain information from the judgment debtor in accordance with CPR Part 71. Other judgments and orders exempt from registration include those where there is an appeal pending[27a].As the nature of the exemptions illustrates, the purpose behind the register is to identify persons who are uncreditworthy, not to identify parties who legitimately dispute liability.
2.27 The register may be inspected by personal attendance at Registry Trust Ltd and paying a fee of £8 per name and address. Requests can also be made online (after registration) or by post. It is possible to conduct searches against a named person, company, firm or a stated address, or to perform periodical searches relating to named courts or courts in a particular county. The Registrar may also agree to carry out other kinds of search. A certified copy of any entry on the register will be provided. Contact details for the Registry Trust Ltd are provided in Appendix 1.
Attachment of earnings orders are not included in the Register of Judgments, Fines and Orders. However, the court for the district in which the judgment debtor resides must maintain a register of all attachment of earnings orders in force against the judgment debtor which either that court made against him or, where the order was made by another court, of which the court has been notified. This can be searched by any person having a judgment or order against a person believed to be residing within the district of the court and the court will issue a certificate of the result of the search.
2.29 All companies formed and registered under the Companies Acts are required to deliver certain documentation to the Registrar of Companies. In addition, overseas companies which have an established place of business in Britain are required to deliver certain documents. 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. 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 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.
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 and the appointment of an administrative receiver. Details of any voluntary resolutions or orders for the winding up of the company and notice of the appointment of a liquidator 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. 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.
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. This principle applies to all companies irrespective of size or importance although it is subject to any contrary provision in the company's articles of association.
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.
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.
2.40 Limited Liability Partnerships (LLPs) were introduced by the Limited Liability Partnerships Act 2000 (LLPA 2000) and the Limited Liability Partnerships Regulations 2001, which both came into force on 6 April 2001. LLPs are an alternative corporate business vehicle that can be seen as a hybrid between a company and a partnership. LLPs and companies have broadly similar accounting and filing requirements. However, LLPs are organised internally like partnerships and have no shareholders.
2.41 The Limited Liability Partnerships Regulations 2001 provide that amended versions of certain designated provisions of, among other things, CA 1985 and IA 1986 apply to LLPs. Under this modified legislation, LLPs are required to file certain documents at Companies House which are available to the public in the same way as are certain company documents. The key filing requirements under LLPA 2000 are similar to those applicable to companies and are set out in Appendix 3.
2.42 As with companies, certain basic information relating to LLPs can be freely accessed from the Companies House website. Other documents can be ordered in the same way as documents for companies. The relevant fees for copies of documents filed with the Registrar of Companies are available on the Companies House website. Contact details for Companies House and details of the LLP inquiry line are provided in Appendix 1.
2.43 Dun & Bradstreet is a commercial source of company information designed to be used for credit, marketing, purchasing and management decision purposes. Companies are given a number of ratings including payment performance and likelihood of success or failure. The ratings are used as predictive indicators for assessing company risk and business failure. The Dun & Bradstreet report may therefore provide some useful information to a judgment creditor who is considering whether the pursuit of enforcement proceedings against a judgment debtor company is likely to be worthwhile. There are various forms of report which often conveniently collect together public information and which may be purchased from their website. Contact details for Dun & Bradstreet are set out in Appendix 1.
2.44 The land and buildings owned by a judgment debtor may be one of its most substantial assets and the availability of charging orders over land (see further Chapter 4) means that such assets are potentially available for enforcement by a judgment creditor. The judgment creditor will need to check that the land is in fact owned by the judgment debtor and it will also be prudent to check the extent of any prior charges over the land. This will enable the judgment creditor to ascertain the extent of the remaining equity in the property so as to form a view whether execution against land is worthwhile since a charging order will take effect subject to any prior charges over the property.
2.45 The means by which ownership is ascertained will depend on whether the land is registered or unregistered. To determine whether land is registered, any person may apply for a search of the index map. The Land Registry form for a search of the index map is form SIM. Credit Account holders can apply for a search of the index map by telephone or online at Land Registry Direct. The certificate of result will reveal whether or not title to the land is registered and, if it is so registered, the title number(s). If the land is known to be registered but the title number is unknown, a different procedure applies.
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. It is not possible for a judgment creditor to search for all land registered in the name of a particular person.
2.47 Searches to obtain the register of title can be performed in person, by post, fax, telephone and online. 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.
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. An application to view a charge document is made using Form OC2.
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. 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. 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.
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.
2.51 High value goods, such as ships, yachts, motor boats, aeroplanes, paintings or motor vehicles, may go some way to payment of a judgment debt and can be subject to execution through writs of fieri facias. It may therefore be worth investigating whether the judgment debtor owns any such items. While an inquiry agent or an oral examination may be needed to elicit this information, there are also a number of public and commercial registers available for inspection.
2.52 One preliminary point that should be noted as regards execution against goods is that an injunction can be obtained to restrain an enforcement agent from remaining in possession of, and from selling, goods which do not belong to the judgment debtor. During the tenure of a hire purchase agreement, the legal title to the goods remains with the owner, with title only being transferred to the hirer at the end of the hire purchase period. Thus where it is intended to levy execution against a class of goods which are commonly subject to a hire purchase agreement, it is advisable first to check that the asset is not subject to a hire purchase agreement. This may be done through inquiries of the judgment debtor or, in the case of motor vehicles, through checking with HPI Limited (see para 2.62).
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:
Part 1 for merchant ships and pleasure vessels;
Part 2 for fishing vessels;
Part 3 for small ships; and
Part 4 for bareboat charter ships. 
2.54 The register is a public record 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. 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 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:
(a) last reported location (arrived/sailed);
(b) if the vessel is in port, the expected sailing date;
(c) the next port of call; and
(d) the estimated time of arrival.
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. 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, 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. 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. Details for HPI Limited are provided in Appendix 1.
2.63 Unincorporated mutual societies commonly include building societies, friendly societies, 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. Since 1 December 2001, the Financial Services Authority (FSA) has taken over the functions of the Central Office of the Registry of Friendly Societies.
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. 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. However, partnerships (other than limited liability partnerships – see paras 2.40–2.42) are not required to make their accounts or partnership documents public. 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. 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.
2.67 Where investigation of the public sources of information outlined above has not revealed significant assets for the purposes of enforcement, a judgment creditor may wish to consider using an inquiry agent to elicit further information about a judgment debtor's assets.
2.68 In practice, inquiry agents are frequently instructed in commercial litigation to attempt to identify the ownership of assets as part of the process of both obtaining judgment and its subsequent enforcement. If used properly, inquiry agents can be an invaluable resource for the location of assets both in the UK and abroad, particularly in the case of assets which the judgment debtor has attempted to conceal.
2.69 In the popular imagination inquiry agents often conjure up seedy images of men in macs investigating allegations of marital infidelity. The modern reality is very different. There are now a number of large international firms of inquiry agents who specialise almost exclusively in conducting inquiries of a commercial nature. They are made up of people from a wide range of backgrounds, from accountants to policemen, military and intelligence personnel. Instructing inquiry agents raises a number of legal and professional conduct issues, both for the judgment creditor and his legal representatives. These issues have been highlighted recently by the courts and the Information Commissioner and it is, therefore, imperative that considerable care is taken when instructing inquiry agents.
2.70 There are a large number of reported cases which refer to the use of inquiry agents in both a civil and criminal context. The disreputable and unlawful means adopted by some inquiry agents have been the subject of trenchant judicial criticism. In Dubai Aluminium Co Ltd v Al Alawi, a case in which the court considered at length the role of inquiry agents in the conduct of litigation and the impact their actions can have on proceedings, the defendant alleged that detailed information had been obtained from his bank, credit card and telephone accounts by the use of 'pretext calls' to the companies concerned. The court proceeded on the basis that there was strong prima facie evidence of criminal or fraudulent conduct in obtaining the information. In another case, an inquiry agent, accompanied by the plaintiff's wife, forced entry to the plaintiff's flat for the purpose of obtaining evidence of the plaintiff's alleged adultery and was found liable for both trespass and assault.
2.71 Many inquiry agents, however, rely on entirely legitimate means of acquiring information, using both public sources of information and traditional methods such as interviewing potential witnesses. Although such methods could also be used by a solicitor, it will often be much cheaper and more cost effective for the work to be performed by an inquiry agent in the first instance. This is particularly the case where information or witnesses are located overseas, since many of the larger firms of inquiry agents have offices or contacts abroad.
2.72 Judicial attitudes to inquiry agents are not invariably hostile and they have been referred to in reported cases without comment, or occasionally even suggested by the judge as a means of ascertaining information. In Rank Film Distributors Ltd v Video Information Centre (a firm)  Lord Denning MR referred, apparently without comment, to entrapment methods being used by inquiry agents to catch persons making pirate videos.
2.73 However, it is far from the case that a judge will assume, without more, that the ends justify the means when it comes to the use of inquiry agents. In one case concerning an appeal relating to judicial bias, an inquiry agent posed as a judge's accountant to obtain information from the judge's solicitors as to whether he had paid for an amendment to his will. Lord Woolf CJ summed up the Court of Appeal's attitude to this method of obtaining information as 'disgraceful'.
2.74 The trend of recent case law has highlighted the importance of ensuring that inquiry agents only employ legitimate means to obtain information. In the Dubai Aluminium case, Rix J made the following telling comment:
'It seems to me that if investigative agents employed by solicitors for the purpose of litigation were permitted to breach the provisions of such statutes [the Data Protection Act 1984] or to indulge in fraud or impersonation without any consequence at all for the conduct of the litigation, then the courts would be going far to sanction such conduct.'
2.75 Recent years have seen the enactment of legislation such as the Data Protection Act 1998, the Human Rights Act 1998 and the Regulation of Investigatory Powers Act 2000, all of which have a potential impact on the means used by inquiry agents. The changing legal landscape has therefore increased the importance of the proper use of inquiry agents.
2.76 It is often the case that the solicitor acting for the judgment creditor will instruct the inquiry agent on behalf of his client. Some of the more dubious means used by inquiry agents therefore potentially expose the solicitor and client alike to both legal and regulatory risk. There is also a serious risk of adverse publicity for the solicitor's firm. The solicitor will therefore need to ensure that improper means are not used by the inquiry agent. If the client chooses to instruct the inquiry agent direct, the solicitor should advise him of the potential consequences of illegal means being used by inquiry agents. An overview of some of the legal risks and pitfalls is set out below.
2.77 Where a solicitor or his client instructs an inquiry agent they may become exposed to civil liability for the acts and omissions of the inquiry agent through the law of agency.
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.
2.79 In Jolliffe v Willmett & Co 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:
'We must stress that the [husband] has instructed solicitors, and therefore no direct approach must be made. In any event a direct approach would be useless as only stealth and cunning are likely to serve in this case.'
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.
'Now I turn to the question of the [solicitors'] responsibility for these matters. The [inquiry agent] was, vis-à-vis the [solicitors], an independent contractor and not a servant. Consequently, looked at strictly, there is no question of any vicarious liability on the part of the [solicitors]. Were they then equally responsible with the [inquiry agent] for the trespass that took place? There are, in my judgment, only two ways in which the [solicitors] can be made liable to the plaintiff. The first way is if they were negligent in their selection of the [inquiry agent] as an independent contractor, and if that negligence was the cause of the trespass. The second way in which they could be made liable would be if they expressly ordered or authorised or ratified the unlawful trespass of the [inquiry agent]. So far as negligence is concerned … there is no evidence that [the solicitor], or anyone else in the [solicitors'] firm, was negligent in selecting the [inquiry agent]. They had recommendations from [a reputable firm of inquiry agents they had previously used], and indeed if they had gone further and listened to the catalogue of the [inquiry agent's] excellencies which he gave me in evidence, they would have had no hesitation in engaging him. There is no question of negligence. Secondly, did they authorise, order or ratify his conduct? I have said sufficient about the facts and sufficient about the way in which I treat the subsidiary dispute between the [inquiry agent] and [the solicitor] to show that, in my judgment, [the solicitor] did not know that the second defendant was going to the flat in the first place and, even if he did know that he was going there, he never authorised nor ordered the [inquiry agent] to enter the flat and would not, in any circumstances, have done so. Accordingly, so far as this action against the [solicitors] is concerned, that fails.'
2.83 This case illustrates the importance of both taking care in the selection of an inquiry agent 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. 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, 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. Megarry J held that there are three elements essential to a cause of action for breach of an implied duty of confidence, namely:
(a) that the information was of a confidential nature;
(b) that it was communicated in circumstances importing an obligation of confidence; and
(c) that there was an unauthorised use of the information.
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. 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 , and that of the European Court of Human Rights in von Hannover v Germany, 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, "[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."
2.89 In addition to civil liability, an inquiry agent's activities could potentially expose the solicitor or his client to criminal liability. While the criminal offences within the Proceeds of Crime Act 2002 (PCA 2002) seek to criminalise the activities of money launderers, PCA 2002 is very widely drafted. Under PCA 2002, s 329 it is an offence to acquire, use or possess criminal property. Criminal property is defined in PCA 2002, s 340(3) and could include documents or information obtained through illegal means if the information or documents represented a person's benefit from criminal conduct. Thus, aside from any reputational or professional considerations, where a judgment creditor seeks to use information that has been obtained as a consequence of criminal conduct, the judgment creditor (or his solicitor) could, in theory, be criminally liable under PCA 2002.
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 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 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. 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.
2.92 It is also worth noting that the Information Commissioner has endorsed the view taken by the Association of British Insurers 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 (PHA 1997) makes it both an offence and a civil wrong 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. Harassing a person includes alarming the person or causing the person distress. A course of conduct must involve conduct on at least two occasions and conduct includes speech.
2.94 Seeking to obtain unauthorised access to computer material is an offence under the Computer Misuse Act 1990 (CMA 1990). It is an offence intentionally to cause a computer to perform any function to secure unauthorised access to any program or data held in any computer. 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.
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).
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 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.
2.97 See paras 2.89 and 2.97.
2.98 The potential civil and criminal liability which may arise as a consequence of using an inquiry agent means that careful consideration must be given to both their instruction and management. A further consideration for the solicitor is that the improper use of inquiry agents is likely to be a breach of professional conduct.
2.99 There is no specific guidance in the Guide to the Professional Conduct of Solicitors as to how to approach the instruction of inquiry agents. However, in certain circumstances, the Law Society has a statutory power to prevent a solicitor from employing or remunerating a person guilty of a crime or misconduct. Under the Solicitors Act 1974, s 43, where the Law Society considers that a person has been convicted of a criminal offence which discloses such dishonesty that, in the opinion of the Society, it would be undesirable for him to be employed or remunerated by a solicitor in connection with his practice, it can impose a ban on that person being employed or remunerated by a solicitor in future. This power would extend to the use of inquiry agents.
2.100 Once such a banning order has been made by the Law Society or the Solicitors' Tribunal, it is an offence for a person subject to the order to seek or accept employment by a solicitor without first informing the solicitor. A solicitor who knowingly employs a person in contravention of an order may be disciplined.
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.
2.102 Aside from legal and professional conduct risks, the further question arises as to whether the fact that information has been obtained illegally will prevent it from being used in evidence in civil proceedings. Evidence will inevitably be required in support of any court based method of enforcement. As will be seen, there seems to be an increasing judicial recognition that the chances of civil or criminal sanction where inquiry agents have obtained evidence illegally are remote, and that the court therefore needs to exercise greater vigilance in the use which may be made of illegally obtained evidence to deter such conduct. This trend further highlights the need to ensure that inquiry agents use only legitimate means of investigation.
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 contains one of the more robust judicial statements of this rule:
'In their Lordships' opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained.'
2.104 In one of the cases cited by their Lordships in Kuruma one judge even went so far as to say:
'It matters not how you get it; if you steal it even, it would be admissible.'
'(1) The court may control the evidence by giving directions as to
(a) the issues on which it requires evidence;
(b) the nature of the evidence which it requires to decide those issues; and
(c) the way in which the evidence is to be placed before the court.
(2) The court may use its power under this rule to exclude evidence that would otherwise be admissible.'
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. 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 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:
'… the issue on the appeal requires this court to consider two competing public interests: the interests of the public that in litigation the truth should be revealed and the interests of the public that the courts should not acquiesce in, let alone encourage, a party to use unlawful means to obtain evidence.'
2.109 On this occasion the Court of Appeal decided not to exclude the evidence. Lord Woolf CJ observed:
'The significance of the evidence will differ as will the gravity of the breach of art 8, according to the facts of the particular case. The decision will depend on all the circumstances. Here, the court cannot ignore the reality of the situation. This is not a case where the conduct of the defendant's insurers is so outrageous that the defence should be struck out. The case, therefore, has to be tried. It would be artificial and undesirable for the actual evidence, which is relevant and admissible, not to be placed before the judge who has the task of trying the case. We accept [counsel for the defendant's] submission that to exclude the use of the evidence would create a wholly undesirable situation. Fresh medical experts would have to be instructed on both sides. Evidence which is relevant would have to be concealed from them, perhaps resulting in a misdiagnosis; and it would not be possible to cross-examine the claimant appropriately. For these reasons we do not consider it would be right to interfere with the judge's decision not to exclude the evidence.'
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:
'While not excluding the evidence it is appropriate to make clear that the conduct of the insurers was improper and not justified. … The fact that the insurers may have been motivated by a desire to achieve what they considered would be a just result does not justify either the commission of trespass or the contravention of the claimant's privacy which took place. We come to this conclusion irrespective of whether [counsel for the claimant] is right in contending that in this particular case the evidence could be obtained by other means.'
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:
'In giving effect to the overriding objective, and taking into account the wider interests of the administration of justice, the court must, while doing justice between the parties, also deter improper conduct of a party while conducting litigation. We do not pretend that this is a perfect reconciliation of the conflicting public interests. It is not; but at least the solution does not ignore the insurers' conduct.'
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 (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:
'My decision following debate and my decision on this motion, are based entirely on the circumstances of the present case. Neither should be regarded, as was feared by the counsel for [the claimant], as an indication that "anything goes" in carrying out inquiries in the course of adversarial litigation.'
2.115 In addition to questions of admissibility, the fact that evidence has been obtained illegally may cause a loss of legal professional privilege over reports and other documents relating to the investigations carried out by inquiry agents.
2.116 The well-established exception to legal professional privilege where there is fraud was summed up by Lord Sumner in O'Rourke v Darbishire:
'No one doubts that the claim for [legal] professional privilege does not apply to documents which have been brought into existence in the course of or in furtherance of a fraud to which both solicitor and client are parties. To consult a solicitor about an intended course of action, in order to be advised whether it is legitimate or not, or to lay before a solicitor the facts relating to a charge of fraud, actually made or anticipated, and make a clean breast of it with the object of being advised about the best way in which to meet it, is a very different thing from consulting him in order to learn how to plan, execute, or stifle an actual fraud.'
2.117 In Ventouris v Mountain, The Italia Express Bingham LJ referred to legal professional privilege existing 'in the absence of iniquity'. The iniquity which may lead to a loss of legal professional privilege has been held to cover 'crime or fraud', the 'criminal or unlawful', and 'all forms of fraud and dishonesty such as fraudulent breach of trust, fraudulent conspiracy, trickery and sham contrivances' and the effecting of transactions at an undervalue for the purpose of prejudicing the interests of a creditor.
2.118 Whether the iniquity involved will cause the privilege to be lost will be determined on a case by case basis. As Goff LJ explained in Gamlen Chemical Co (UK) Ltd v Rochem Ltd:
'[T]he court must in every case, of course, be satisfied that what is prima facie proved really is dishonest, and not merely disreputable or a failure to maintain good ethical standards and must bear in mind that legal professional privilege is a very necessary thing and is not lightly to be overthrown, but on the other hand, the interests of victims of fraud must not be overlooked. Each case depends on its own facts.'
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. 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.
2.121 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:
'Of course, there is always the sanction of prosecutions or civil suits, and those must always remain the primary sanction for any breach of the criminal or civil law. But it seems to me that criminal or fraudulent conduct for the purposes of acquiring evidence in or for litigation cannot properly escape the consequence that any documents generated by or reporting on such conduct and which are relevant to the issues in the case are discoverable and fall outside the legitimate area of legal professional privilege. It is not as though there are not legitimate avenues which can be sought with the aid of the court to investigate (for instance) banking documents. That apparently is true in Switzerland as well. In any event, the material being investigated is usually material which falls within the other party's possession or control, and which in all probability he will in due course be obliged to disclose himself. In such circumstances, it does not seem to me to be too great an intrusion on legal professional privilege to require that documentation such as is in question in this case should be disclosed. Otherwise the position would be that the party employing the criminal or fraudulent agent would have it entirely within his own power to decide which of the criminally or fraudulently acquired information he was willing to rely on and disclose and which he was not. Where such a party will be asking the court to make inferences from such material, it is only fair that such material should be seen as a whole.'
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.
2.127 In addition to publicly available information or the use of inquiry agents, the judgment creditor may wish to consider making an application for a court examination of the judgment debtor under the procedure set out in CPR Pt 71.
2.128 The purpose of Pt 71 is to provide a procedure 'for a judgment debtor to be required to attend court to provide information, for the purpose of enabling a judgment creditor to enforce a judgment or order against him'.
2.129 Part 71 therefore is not in itself a method of enforcement. Rather, it is a tool available to the judgment creditor to enable him to obtain information about the judgment debtor's assets so that he can best decide which enforcement procedure(s) to use. However, the threat of an oral examination may in some cases prove sufficient for the judgment debtor to pay the sums owed.
The procedure is only available post-judgment and, in contrast with the methods described earlier in this chapter, the information gathered under Pt 71 is obtained directly from the judgment debtor. The rules provide for questioning of the judgment debtor in the forum of a courtroom. The procedure demands a relatively high degree of co-operation from the judgment debtor. However, a judgment debtor who refuses to co-operate may find himself liable for contempt of court.
2.130 Part 71 was enacted with the 26th set of amendments to the CPR under the Civil Procedure (Amendment No 4) Rules 2001, which came into force on 25 March 2002. These provisions repealed and replaced RSC Ord 48.
2.131 RSC Ord 48 originated from Common Law Procedure Act 1854, s 60, which was later re-enacted in amended form as Rules of Court of 1875, Ord XLV, r 1. However, while the modern form of the procedure has simplified the rules, the basic purpose of the procedure is unchanged. This is evident from the terms of s 60 of the 1854 Act, which provided:
'It shall be lawful for any Creditor who has obtained a Judgment in any of the Superior Courts to apply to the Court or a Judge for a Rule or Order that the Judgment Debtor should be orally examined as to any and what Debts are owing to him … and the Court or Judge may make such Rule or Order for the Examination of such Judgment Debtor, and for the Production of any Books or Documents …'
Part 71 substantially reproduces this section.
2.132 As has been noted, it is necessary that a judgment or order has been made against the judgment debtor for the Pt 71 procedure to be available. The procedure is not available before judgment has been given.
2.133 However, following judgment, the judgment creditor can utilise the procedure at any time. There is nothing in the rules which require that, for example, where an order has been made for payments by instalments the judgment debtor should be behind with payments, or have refused to pay, or otherwise be behaving in an obstructive manner for the procedure to be available.
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). The order will ordinarily require the judgment debtor to attend the County Court for the district in which he resides or carries on business, 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. 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.
(a) the judgment debtor's name and address;
(b) the judgment or order of which enforcement is sought;
(c) in the case of money judgments, the amount presently owed by the judgment debtor (including any costs and interest);
(d) where the judgment debtor is a company or corporation, providing details of the company officer who the judgment creditor wishes to attend court including his position in the company (see further para 2.146);
(e) where the judgment creditor wishes the questioning to be conducted before a judge, providing reasons why this is necessary (see further paras 2.139–2.140); and
(f) the identification of any specific documents the judgment creditor wishes the judgment debtor to produce at court.
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. 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. The order will provide for the questioning to take place before a judge only if there are 'compelling reasons' to do so. 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.
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:
'Although in the present case the examination was carried out by counsel for the judgment creditor, and the district judge no doubt exercised a proper judicial restraint himself, the oral examination is conducted by the district judge. It is for him to say what questions need answering and for him to say when it is over.'
2.141 The fee for issuing an application under Pt 71 is £50 in the High Court and £45 in the County Court. All cheques should be made payable to 'HMCS' or 'Her Majesty's Courts Service'.
2.142 The application for an oral examination may be dealt with by a court officer without a hearing. However, the court officer considering the application notice may refer it to a judge for consideration and will do so where the judgment creditor requests the judgment debtor to be questioned before a judge.
2.143 The wording of CPR 71.2(5) indicates that provided that the application notice satisfies the requirements set out in PD 71, an order requiring the judgment debtor to attend court to provide information will be issued. It was unsuccessfully argued in Masriv Consolidated Contractors International Co SAL that the wording of CPR 71.2(5) gives the judgment creditor a right to an order provided the application complies with the formal requirements. This would have marked a change from the former rule under RSC Ord 48 which provided the Court with a discretion to make the Order. The Court of Appeal did not accept this argument. It held that the explanation for the terms of CPR 71.2(5) is that, by CPR 71.2(4) an order under CPR 71.2(1) may be made by a court officer without a hearing. Such an order would be an administrative act. The addressee can then challenge an Order made without notice. It was not intended that on an application to set aside the order, the court should not have a discretion whether or not, in all the circumstances of the case to uphold the order or to set it aside.
2.144 The order requiring the judgment debtor to attend court for questioning will be in Form N39. The examination will take place in the County Court for the district in which the judgment debtor resides or carries on business, unless the judge decides otherwise. The order will provide that a person served with the order must:
(a) attend court at the time and place specified in the order;
(b) produce the documents in his control which are described in the order; and
(c) answer on oath such questions as the court may require.
2.145 An order made under Pt 71 will also contain a notice in the following terms: 'You must obey this order. If you do not, you may be sent to prison for contempt of court.' This wording is usually termed the 'penal notice' and its inclusion is critical if the order subsequently needs to be enforced by committal for contempt of court (see further paras 2.223–2.235). The standard order to attend court for questioning, Form N39, includes this wording in bold towards the bottom of the front page.
2.146 Where the judgment debtor is an individual, the question of who can be examined under Pt 71 is straightforward. In the case of a company or corporation, the rule provides that 'an officer' may be required to attend court for questioning. In Masri v Consolidated Contractors International Co SAL  the Court of Appeal held that 'an officer' did not extend to include a director of a corporate director of the judgment debtor. Before making the application, the judgment creditor should consider which officer of the company is most likely to be able to answer questions on the company's operational and financial status and assets. The company secretary or finance director may prove a more useful source of information than a non-executive director. A search at Companies House will provide a full list of the company directors and the secretary.
2.147 In Société Générale du Commerce et de l'Industrie en France v Johann Maria Farina & Co 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 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:
'I am of [the] opinion that this construction which is sought to be put upon the rule is too narrow. There is nothing in the rule which restricts it to an existing officer of the corporation, and there is nothing in the wording of the rule incompatible with its application to a person who has been an officer of the corporation. The construction of the rule that is contended for might work serious injustice if an officer of a corporation merely by resigning his position could get rid of the responsibility of giving the information that is sought by a plaintiff.'
2.149 Matthew LJ agreed:
'The object of Order XLII., R 32 [a predecessor rule to Pt 71], is to permit the examination of officers connected with a corporation as to its property and assets. I cannot see any reason why a company should escape liability to disclosure by accepting the resignation of a director, who might be the sole manager and the only person acquainted with details. I find nothing in the language of the rule which compels us to place on the rule an interpretation which would have that effect, and I see no reason why this order should not be enforced.'
2.151 In Maclaine Watson & Co Ltd v International Tin Council (No 2) 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 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. 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:
'… has behaved more like a disreputable private debtor concerned only to hinder and delay his creditors than the responsible international organisation it claims to be.'
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'. 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. 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'.
2.156 It is vital that proper service of the order is effected.This is because, if proper service cannot be shown, the court will not impose the sanction of committal on a judgment debtor who fails to attend court.
2.157 Once the order to attend court has been issued, it must be served personally on the judgment debtor not less than 14 days before the hearing, unless the court orders otherwise. Service of the order must be carried out by the judgment creditor or someone acting on his behalf. In Masri v Consolidated Contractors International Co SA, the Court of Appeal held that, if necessary, an Order under CPR Pt 71 can either be served out of the English jurisdiction without the Court's permission or, where permission to serve the original claim form out of the jurisdiction was required, with the permission of the Court. The Court of Appeal expressly disagreed with the submission that the Court had no jurisdiction to make an Order under CPR Pt 71 where the addressee is out of the English jurisdiction. A judgment creditor may wish to instruct a process server to effect service of the order, though it should be noted that only limited costs will be recoverable in this regard (see further paras 2.255–2.257).
2.158 If the judgment creditor has been unable to serve the judgment debtor personally with the order, the judgment creditor must inform the court of this no less than seven days before the date of the hearing. The words 'unless the court orders otherwise' in CPR 71.3(1) make provision for service by an alternative method under CPR 6.8 where personal service is not possible. CPR 6.8 provides that where it appears to the court that there is a good reason to authorise service by a method not permitted by the CPR, the court may make an order permitting service by an alternative method. An application for an order under CPR 6.8 must be supported by evidence (usually in the form of a witness statement or affidavit) clearly stating the problems that have been encountered in trying to effect personal service. This evidence will then be put on the court file to provide a record of the facts upon which the court relied in making the order for substituted service. The order which permits service by an alternative method must specify the method of service and the date when the document will be deemed to be served.
2.159 However, although CPR 71.3(1) and CPR 6.8 provide a possible solution for a judgment creditor who is unable to effect personal service of the order on the judgment debtor, depending on the reasons why personal service has not been possible, the judgment creditor may wish to consider carefully at this point whether to proceed with the oral examination. Although the order for substituted service will allow the process to continue, if the judgment debtor is deliberately evading service, this may indicate that the procedure under Pt 71 will not be successful since it requires a significant degree of co-operation from the judgment debtor. While continued non-co-operation may result in a committal order against the judgment debtor, this may prove cold comfort to the judgment creditor seeking financial redress. The cost of continuing what may turn out to be a fruitless procedure may ultimately be a further source of financial loss.
2.160 Once the judgment debtor has been served with the order, he may, within seven days, ask the judgment creditor to pay a sum reasonably sufficient to cover his travelling expenses to and from court. The judgment creditor must pay such a sum if requested.
2.161 The provision to provide the judgment debtor with reasonable travelling expenses when requested should be taken seriously. This is because an order for committal will not be made where they have not been tendered.
2.162 At least two days before the hearing, the judgment creditor must file at court an affidavit or affidavits dealing with service of the order, the provision of travelling expenses to the judgment debtor and how much of the judgment debt remains unpaid. Alternatively, the affidavit or affidavits may be produced at the hearing.
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. 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. 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. 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.
2.165 At the start of the hearing the judgment debtor will be asked to swear on oath or to affirm before the questioning begins. A court officer will explain the purpose of the oath and the questions.
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.
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. Alternatively, he may ask the court officer to ask additional questions by attaching a list of proposed additional questions when filing the application.
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.
2.171 Where the hearing is before a judge the judgment creditor (or his representative) must attend and conduct the questioning. The standard questions in forms EX140 and EX141 will not be used. The proceedings will be tape recorded and the court will not make a written record of the evidence.
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.
2.174 In the 1880 case of Republic of Costa Rica v Strousberg, 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 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:
'The object of this examination evidently is for the purpose of ascertaining from the judgment debtor what debts are owing to him, in order that the judgment creditor may attach those debts. It is in the nature of a discovery; and it appears to me very much like the discovery of documents where a defendant is asked what documents he has, and he sets out what documents he has: but you cannot cross-examine him upon that.'
2.176 He went on:
'However, my construction of the Act is that [the judgment creditors] were not at liberty to make a general examination … Therefore I think the examination went beyond its just bounds.'
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:
'Any question, therefore, fairly pertinent to the subject-matter of the inquiry, which means put with a view to ascertain so far as possible, by discovery from a reluctant defendant, what debts are owing to him, ought to be answered by the defendant.'
2.178 He continued:
'He must answer all questions fairly directed to ascertain from him what amount of debts is due, from whom due, and to give all necessary particulars to enable the Plaintiffs to recover under a garnishee order.'
2.179 James LJ and Cotton LJ agreed, the former adding:
'The examination is not only intended to be an examination, but to be a cross-examination, and that of the severest kind.'
2.180 Strousberg was cited with approval in Mubarak v Mubarak, 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.
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:
'I accept the submission of … [counsel for the judgment debtor], that Order 48 does not authorise a freestanding process of specific discovery. The oral examination is, however, a process of considerable potential utility to a judgment creditor in a case where the judgment debtor is deliberately evading his obligation to pay. Whilst the obligation on the judgment debtor to produce books or documents is necessarily ancillary to the process of examination and not independent of it, that does not mean that it is anything other than an important and often vital part of the process. It is a significant tool in the enforcement of the court's order in relation to which, ex hypothesi, the judgment debtor is in default.'
'I do not accept [the judgment debtor's] further submission that the only time when the court can order production of documents is on first ordering attendance for oral examination, nor that that order can only be a generalised one in the terms of Ord 48, that is to say, to produce anything relevant to any debts owing or other assets. It is no doubt the case that the great majority of Ord 48 oral examinations are quite brief and the documents relating to them comparatively few.
… That, however, is not to say that the process is not available in and adaptable to the very complex case, such as the present, where the debt and the assets are counted in millions and the potential relevant documents require a trolley rather than an envelope to bring them to court. Indeed, it may be all the more important a process in a case of that kind.'
'I am quite satisfied that the rules permit the examination to be adjourned from time to time, if that is necessary, and that orders for the production of relevant documents may also be made from time to time. Such orders may be specific as well as general, providing of course that what is specified for production is relevant to the two questions to which the examination is directed, that is to say, debts owing to the judgment debtor and his property or other means of paying what he owes. If it were not so, a judgment debtor in a complex case such as the husband here, and even if benefiting from skilled advice, which is often not the case, would be faced with real doubt about what documents to bring.'
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:
'It is of course true that the range of documents which are relevant to oral examination under Order 48 will often be narrower than the range of documents relevant to pre-trial discovery, for the former must be relevant to enforcement and to the ability to pay.'
'What is, however, clear is that to be in the possession or power of a judgment debtor the document must be one which he has the necessary enforceable right to call for, and in his personal capacity not merely qua director or agent. This is further consistent with the actual decision in B v B, where Dunn J held that, absent the case of a one-man company, which is the alter ego of the party, a party who has the physical holding of documents or a right to inspect them simply as a director, will, although obliged to disclose their existence at the discovery stage, not be ordered to produce them for inspection.'
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:
'the [the judgment debtor's] behaviour, however disgraceful, is not a reason to justify going beyond what can legitimately be achieved in the particular process before the court.'
(a) there was no power under RSC Ord 48 (and thus presumably under Pt 71) to direct that a new document be brought into existence (in that case a list of the judgment debtor's expenditure). The court can only order the judgment debtor to produce an existing document which is in his possession; and
(b) there is no power to order the judgment debtor to use all necessary endeavours to obtain documents which are not in his possession.
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.
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.
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 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, 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. (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:
'[I]t is entirely consistent with this pattern of legislation that the judgment creditor should have available to him a procedure, under Order 48, which he can utilise to find out whether, in default of any English assets, there are foreign assets available to satisfy his judgment. The use of Order 48 for this purpose is not regulating the conduct of the judgment debtor abroad so as to be contrary to the principle considered by Hoffmann J in Mackinnon v Donaldson, Lufkin and Jenrette Securities Corpn  Ch 482.'
2.196 While not applicable in Interpool, 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:
'The following courts shall have exclusive jurisdiction, regardless of domicile:…
5. in proceedings concerned with the enforcement of judgments, the courts of the Contracting State in which the judgment has been or is to be enforced.'
2.197 Balcombe LJ observed that:
'Article 16(5) provides that, in proceedings concerned with the enforcement of judgments, the courts of the contracting state in which the judgment has been or is to be enforced shall have exclusive jurisdiction, regardless of domicile. But this provision must be read in the light of the fact that it is possible, as [counsel for the judgment debtor] conceded, for the same debt to be simultaneously enforced by judgments obtained, or registered, in more than one country. So this provision can only relate to the enforcement proceedings in a particular state. The use of Order 48, in English enforcement proceedings, in order to discover the existence of foreign assets, does not confer, or purport to confer, jurisdiction on the English court in relation to enforcement proceedings in any other country in which those assets may be situate.'
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, 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' in relation to those parts of his judgment which had not been canvassed in the arguments of counsel. However, he observed:
'In Interpool Ltd v Galani  Q.B. 738 this court ordered the defendant to make a full disclosure after judgment of his assets abroad, clearly in order to enable the plaintiff to use the disclosure for the purpose of enforcement proceedings in the jurisdictions where the disclosed assets were situated. The court also held, at p 1046D-G, that an order for disclosure by the defendant of his assets worldwide pursuant to Order 48 did not infringe article 16(5) of the European Judgments Convention. In my view, the correctness of that decision is not open to doubt.'
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:
'I say nothing concerning the circumstances in which it will be proper for the court to make an order for the disclosure of information regarding assets situated abroad, either before judgment or after judgment. That is not a matter which arose, or was argued, on this appeal. But in all cases where such an order is sought or made the court will need to be alive to the importance of exercising control over the use of information disclosed compulsorily about assets situated overseas. It is obvious that such information can be used by a plaintiff in a manner that, in some circumstances, would be unjust to the defendant who has been compelled to disclose it.'
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.
2.202 Interpool was also cited with approval by the Court of Appeal in Maclaine Watson. 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:
'Finally, as regards, the extension by Millett J of his first order so as to include the disclosure of the [judgment debtor's] assets outside the jurisdiction, there can be no doubt that he had the necessary jurisdiction for this purpose: see in particular the decision of this court in Interpool v Galani.'
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. 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. In their Lordships' view the comments made in Interpool as to the nature of the garnishee jurisdiction (see para 2.191) were erroneous. 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. 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.
2.204 In an article written shortly after the Court of Appeal's decision in Interpool, 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). 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:
'… it may be deduced from Interpool v Galani that orders for examination of judgment debtors as to their foreign assets, under RSC Ord. 48 fall within the national jurisdiction of the English courts whenever these are made for the purposes of orders in English enforcement proceedings'
'However, where the RSC Ord. 48 order is sought in aid of judgment-enforcement proceedings taking place not in England but in a foreign state (not party to the Brussels Convention), the English court would appear to lack jurisdiction to make such order.'
2.207 In Kaye's view, the 'clear implication' of the passage in Interpool cited in para 2.197, 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.
'The answer, it is believed, is that to the extent that proceedings brought before the English courts for enforcement of an English or foreign judgment may be said to contemplate enforcement thereof in a foreign Contracting State, rather than in the United Kingdom, both the enforcement measures sought and, more particularly in present context, RSC Order 48, r 1 powers in relation to discovery of foreign (or even, in the circumstances, United Kingdom) assets of the judgment debtor lie beyond the jurisdiction of the English courts in accordance with art 19 of the Brussels Convention and, correspondingly, by virtue of art 16(5), within the exclusive jurisdiction of the courts of the foreign Contracting State or states in which the judgment is to be enforced and in which the foreign assets may be situated.' (Emphasis added.)
2.209 Thus he concludes that rather than the oral examination procedure being available in support of foreign proceedings:
'On the contrary, it is felt, the plain meaning and intent of the words used in art 16(5) should be taken to be that measures of enforcement and orders relating thereto are to be limited exclusively to the enforcement in the United Kingdom – as the Contracting State of the forum – of the English or foreign judgment, and that to the extent that applications relate to foreign Contracting State enforcement, the English courts must decline jurisdiction to grant the relief requested, of their own motion, under art 19 of the Brussels Convention.'
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, 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 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 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, his interpretation of the RSC Ord 48 procedure is manifestly at odds with the purposes and intent behind the Convention regimes. Section 5 of the Jenard Report, 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':
'It means those proceedings which can arise from 'recourse to force, constraint or distraint on moveable or immovable property in order to ensure the effective implementation of judgments and authentic instruments.'
Problems arising out of such proceedings come within the exclusive jurisdiction of the courts of the place for enforcement.
'Provisions of this kind appear in the internal law of many Member States.'
The footnote to the last paragraph adds:
'… French courts have exclusive jurisdiction over measures for enforcement which is to take place in France (preventative measures, distress levied on a tenant's chattels, writs of attachment and applications for enforcement of a foreign judgment); over distraint levied on immovable or moveable property, and over proceedings concerned with the validity of measures for enforcement.'
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, 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:
'22 The Dresdner Bank claims that the action paulienne, in so far as it is preparatory to the enforcement of a decision, does come within the exceptions set out in Article 16(5) of the Convention. …
24 It should be pointed out, in the first place, that … Article 16 of the Convention makes a number of exceptions to the general rule set out in Article 2 of the Convention by granting exclusive jurisdiction to the courts of a Contracting State other than that specified under Article 2 in proceedings which have a particular connection with that other State, on the basis of the location of immovable property, the seat of a company, an entry in a public register or, in the case of paragraph (5), the place where a judgment is to be enforced.
25 In the second place it should be pointed out that Article 16 must not be given a wider interpretation than is required by its objective, since it results in depriving the parties of the choice of forum which would otherwise be theirs and, in certain cases, in their being brought before a court which is not that of the domicile of any of them ….
26 From that point of view it is necessary to take account of the fact that the essential purpose of the exclusive jurisdiction of the courts of the place in which the judgment has been or is to be enforced is that it is only for the courts of the Member State on whose territory enforcement is sought to apply the rules concerning the action on that territory of the authorities responsible for enforcement.' (Emphasis added.)
'thus preserves the interests of the creditor with a view in particular to a subsequent enforcement of the obligation, it is not intended to obtain a decision in proceedings relating to "recourse to force, constraint or distraint on movable or immovable property in order to ensure the effective implementation of judgments and authentic instruments" and does not therefore come within the scope of Article 16(5) of the Convention.'
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 (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 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.
2.217 This mirrors the view taken by the Court of Appeal in Masri v Consolidated Contractors International Co SAL in the context of an application for an order for appointment of a receiver by way of equitable execution. 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 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.
2.219 Part 71 contains no limitation that an order for oral examination may be made only once. In Sturges v Countess of Warwick it was held that where an oral examination had been held under one of the predecessors to Pt 71, a further examination may be ordered in special circumstances. The commentary to the White Book notes that the new rule places no restriction on repeat examinations and suggests that the court's case management and costs powers should be used to prevent abuse.
2.220 Adjournment of the oral examination hearing is also possible, where, for example the judgment creditor requires the judgment debtor to produce relevant documents before the examination can proceed. CPR 71.7 makes specific provision for adjournment and states that the court will give directions as to how notice of the new hearing is to be served on the judgment debtor in the case of adjournment. As has been noted, in Mubarak Hughes J said:
'I am quite satisfied that the rules [Order 48] permit the examination to be adjourned from time to time, if that is necessary, and that orders for the production of relevant documents may also be made from time to time.'
2.222 Where a hearing has been adjourned, it is vital that the judgment debtor is served with the amended order indorsed with the new date of examination. If this is not done, the judgment debtor's failure to attend on the new date will not constitute contempt of court. This was the Court of Appeal's decision in Beeston Shipping Ltd v Babanaft International SA, The Eastern Venture, notwithstanding the fact that the judgment debtor's legal representatives were aware of the adjourned date, were in communication with their client, and had confirmed to the judgment creditor's solicitors that it was not necessary to re-serve the judgment debtor with the order adjourning the hearing. Dunn LJ observed:
'… committal for contempt of court is an extreme remedy and, whatever the relationship between the solicitors may be and whatever knowledge in fact the person to be proceeded against for contempt of court has, none the less the committal proceedings will be bad unless the rules are strictly complied with.'
2.223 It is the sanction of committal in the event of non-compliance with an order to attend court that gives the oral examination procedure teeth. The penal notice contained in the order warns the judgment debtor that if he does not obey the order, he may be sent to prison for contempt of court.
(a) fails to attend court;
(b) refuses at the hearing to take the oath or to answer any question; or
(c) otherwise fails to comply with the order;
the court will refer the matter to a High Court judge or circuit judge. The judge or court officer making the referral must certify in writing in which respect the judgment debtor failed to comply with the order. The commentary to the White Book states that the most common type of non-compliance is the debtor's failure to attend court to be examined.
2.225 CPR 71.8(2) gives the judge to whom the matter is referred discretion to make a committal order against the judgment debtor, subject to the provisions of CPR 71.8(3) and 71.8(4):
(a) CPR 71.8(3) provides that a committal order may not be made unless the judgment creditor has complied with the rules for payment of the judgment debtor's travelling expenses and filed affidavits as to service of the order and payment of travelling expenses.
(b) CPR 71.8(4) states that if a committal order is made, it will be suspended provided that the judgment debtor attends court for examination at a subsequent time and place, which will be specified in the order, and complies with the terms of that order and the original order. This hearing will be before a judge if either the original order was to attend before a judge or the judge making the suspended committal order directs that this should be the case.
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). 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.
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. 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.
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. 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). The judge 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. 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. 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.
2.231 If the judge decides that the committal order should not be discharged, a warrant for committal will be issued immediately and the judgment debtor will be taken to prison to serve the sentence. The sentence for committal is a maximum of two years.
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.
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, 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, 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. 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:
'At present there is an existing criminal penalty of perjury, but anecdotal evidence suggests that it is hardly ever used … it is far too cumbersome a weapon to be of any use in combating the casual untruths which are probably much more of a feature of the oral examination process.'
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 and the Crown Prosecution Service (CPS) will not prosecute if they do not think it is in the public interest. As the Report states:
'The CPS and the police would need to be convinced that a serious transgression had occurred if they were to devote the resources necessary to bring a criminal prosecution.'
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 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:
'Sometimes in civil proceedings, as these were, the effect of perjury is to cause financial loss to others … but there is … in cases of this kind one victim of perjury. That victim is the course of justice and its proper administration. It is because of that inevitable feature of the offence that a conviction for perjury must always be visited …, save in the most exceptional circumstances … with an immediate custodial sentence.'
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. The privilege is set out in the Civil Evidence Act 1968, s 14 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.
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. 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.
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; the privilege may not be claimed on the basis of a mere possibility that the facts might lead to exposure to criminal proceedings.
2.246 In Den Norske Bank ASA v Antonatos 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. 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 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.
2.248 As has been noted in Chapter 1 The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) may also potentially impact upon the operation of Pt 71. The ECHR now forms part of English law following the entry into force of the Human Rights Act 1998 (see further Chapter 1). Those arts of the ECHR which might potentially be infringed by the provisions of Pt 71 are art 6 (the right to a fair trial) and art 8 (the right to respect for private and family life).
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 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. 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.
'There shall be no interference by a public authority with the exercise of this right, except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of … crime … or for the protection of the rights and freedom of others.'
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 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 have suggested the procedure is not compliant. Whether such challenges will follow remains to be seen.
2.255 Where the court makes an order under CPR Pt 71 to obtain information from a judgment debtor, the judgment creditor will only be entitled to fixed costs for the application unless the court orders otherwise. The amount of fixed costs are the court fee of either £50 or £45 together with the judgment creditor's fixed costs shown in the table to CPR 45.6. These fixed costs will be £15 for each half hour (or part) where the questioning takes place before a court officer. Where the questioning takes place before a judge, the judge may summarily assess the costs. In addition, CPR 45.5 prescribes a fee of £15 for effecting personal service of the order to attend court on the judgment debtor. As the notes to the White Book observe, where process servers are instructed to effect service, this figure is likely to be substantially less than the fee charged for doing so.
2.256 Where the application is entirely straightforward and the amounts in issue are relatively modest, the court's award of costs is likely to be confined to fixed costs. However, in a complex case, where the examination takes place before a High Court Judge, the successful judgment creditor should seek an order at the hearing in relation to the recovery of those additional costs which are outside the fixed costs regime.
2.257 The general rule is that the court should make a summary assessment of the costs at the conclusion of a hearing lasting not more than one day unless there is good reason not to. Each party who intends to claim costs should prepare a written statement of costs which should follow as closely as possible Form N260. The statement must be signed by the party or his legal representative and must be filed at court with copies served on any party from whom recovery of costs is sought. Filing and service must be done as soon as possible and in any event at least 24 hours before the date fixed for the hearing.
(a) the degree of co-operation required from the judgment debtor to attend court at the outset;
(b) the fact that the judgment debtor may outwardly seem to comply with the order by providing answers, but the answers may be incomplete, unhelpful, untruthful or may otherwise defeat the judgment creditor's purpose; and
(c) the inability of either the court or the judgment creditor to verify the information given by the judgment debtor at the oral examination.
2.259 A number of proposals for reform of the oral examination procedure were considered as part of the Lord Chancellor's Department's review of the civil enforcement system, which began in March 1998 and concluded with the government's White Paper in March 2003 'Effective Enforcement', setting out the government proposals for reform of civil enforcement law (see further Chapter 1).
2.260 The First Phase of the Enforcement Review 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. 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.
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, 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.
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(CA 2006, ss 854-858 due to come into force on 1 October 2009)
 Such as freezing injunctions or other without notice injunctions.
 The test for whether the court will 'lift the corporate veil' is a high one and will be a question of fact in every case. See further Lonrho Ltd v Shell Petroleum Co Ltd  QB 358 and Trustor AB v Smallbone (No 2)  1 WLR 1177.
 Chapter 3, executive summary.
 See 'The Legality of Debt Enforcement', a discussion paper published by Joseph Jacob of the London School of Economics in November 2003 available on the website of Justice (an independent human rights organisation) at http://www.justice.org.uk/ourwork/legalsystem/index.htm.
 Civil Procedure 2008, vol 1, para 71.8.1.
 Defined in FIA 2000, s 3(1) and Sch 1.
 FIA 2000, s 1(1).
 In such circumstances, it may be worth considering whether to initiate bankruptcy or winding up proceedings, or to file a proof of debt where such proceedings are already under way. See further Chapter 1.
 IA 1986, ss 183(1) and 346(1).
 Insolvency Rules 1986, SI 1986/1925, r 6.13 (Creditor's Petition) and r 6.43 (Debtor's Petition)
 Insolvency Rules 1986, r 6.34(2)(a) (Creditor's Petition) and r 6.46(2)(a) (Debtor's Petition).
 Land Charges Act 1972, s 5(1)(b).
 Land Charges Act 1972, s 6(1). The register is something of a misnomer given that the Land Charges Act 1972, s 6(1)(c) provides that a bankruptcy order may be registered 'whether or not the bankrupt's estate is known to include land'.
 Land Registry Practice Guide 61 (May 2008): Telephone services (credit account holders only), para 3.
 Insolvency Rules 1986, rr 6A.1–6A.8.
 Insolvency Rules 1986, r 6A.4(2).
 Insolvency Rules 1986, r 6A.2(1).
 Details of the nearest Official Receiver's Office can be obtained by calling the Insolvency Service's Central Enquiry Line or online at: www.insolvency-service.co.uk/officemap.htm. Contact details for the Insolvency Service appear in Appendix 1.
 Inspection of court records for insolvency proceedings is dealt with by Insolvency Rules 1986, rr 7.28–7.32.
 Also included are administration orders made under the County Courts Act 1984, s 112 and orders restricting enforcement under County Courts Act 1984, s 112A.
 Courts Act 2003, s 98 and the Register of Judgments, Orders and Fines Regulations 2005 (SI 2005/3095). Certain information is also available from Scotland, Ireland, Northern Ireland, the Isle of Man and Jersey-see further the Registry Trust Ltd's website under the FAQs section: www.registry-trust.org.uk.
 Register of Judgments, Orders and Fines Regulations 2005, reg 27.
 Register of Judgments, Orders and Fines Regulations 2005, reg 10.
 Register of Judgments, Orders and Fines Regulations 2005, reg 27.
 Register of Judgments, Orders and Fines Regulations 2005, reg 11.
 Courts Act 2003, s 98(3)(a) and Register of Judgments, Orders and Fines Regulations 2005, reg 9.
 Register of Judgments, Orders and Fines Regulations 2005, reg 9(c). Note that an application or order for the payment of a money judgment by instalments also triggers registration.
[27a] Register of Judgments, Orders and Fines Regulations 2005, reg 9(b).
 Register of Judgments, Orders and Fines Regulations 2005, reg 27.
 Register of Judgments, Orders and Fines Regulations 2005, reg 28.
 Note that CCR Ord 27, r 2(2) imposes an obligation on any court in a district in which the judgment debtor does not reside to inform the County Court in which the judgment debtor resides of the making of an attachment of earnings order.
 CCR Ord 27, r 2.
 A more comprehensive summary of the documents required to be sent to the Registrar of Companies can be found in Appendix 6 to Tolley's Company Law Service.
 Companies Act 1985 (CA 1985), Pt XXIII, Companies Act 2006 (CA 2006), Pt XXXIV.The draft Overseas Companies Regulations 2008 were published on 13 December 2007 and are due to come into force on 1 October 2009. They are available at www.berr.gov.uk/files/file42859.doc.
 CA 2006, s 1085.
 It should be noted that the accounts held at Companies House may not be fully up to date. Under CA 2006, s 441, public limited companies are required to file their accounts within six months after the end of the accounting reference period and private limited companies within nine months. The late filing of accounts may sometimes suggest that a company is in financial difficulties and the company's accounting reference date (which can be found on the Companies House website) should be checked to ascertain how current the accounts are. There are certain exceptions in terms of filing requirements for small to medium-sized companies, unlimited companies and dormant companies.
 CA 1985, s 405(1) (to be replaced by CA 2006, s 871(1) which is due to come into force on 1 October 2009).
 IA 1986, s 43(5).
 , CA 2006, s 30(1) and IA 1986, s 84(3).
 IA 1986, s 130(1) and Insolvency Rules 1986, r 4.21(3).
 IA 1986, s 109(1).
 CA 1985, s 408(1) (to be replaced by CA 2006, s 877which is due to come into force on 1 October 2009. CA 2006, s 877 has been in force since 20 January 2007 for the purposes of enabling the exercise of powers to make orders or regulations by statutory instrument (SI 2006/3428). Under this SI, the Secretary of State can exercise powers conferred by s 1296(1) and (2) (power to make transitional provision and savings) and 1300(2) (dates of commencement for certain provisions of CA appointed by order of the Secretary of State or the Treasury).
 Other information is only available to a company's members, creditors or debenture holders. For a summary of the statutory records required to be kept by a company and rights of inspection, see Chapter 3 of Tolley's Company Secretary's Handbook 2007–2008 and Appendix 6 of Tolley's Company Law Service.
 Unless that legal advice was prepared to advise the company on hostile litigation between the company and the shareholder), Woodhouse and Co Ltd v Woodhouse (1914) 30 TLR 559, CA. See also Hollander Documentary Evidence (9th edn, 2006) para 6–06.
 CAS (Nominees) Ltd v Nottingham Forest plc  1 All ER 954 at 958–959.
 Gourand v Edison Gower Bell Telephone Co of Europe Ltd (1888) 59 LT 813. If a company has CA 1985 or CA 2006 Table A articles of association, the articles will contain the following: 'No member shall (as such) have any right of inspecting any accounting records or other book or document of the company except as conferred by statute or authorised by the directors or by ordinary resolution of the company.' (The Companies (Tables A to F) (Amendment) Regulations 2007 (as amended by the Companies (Tables A to F) (Amendment) (No 2) Regulations 2007) amended Tables A in the Companies (Tables A to F) Regulations 1985. The amended Table A applies to companies incorporated on or after 1 October 2007.) This provision is similar to a provision considered in Gourand and which the court held was insufficient to resist disclosure of legal advice on the basis it was not framed with litigation in mind.
 Conway v Petronius Clothing Co Ltd  1 WLR 72 at 89–90.
 SI 2001/1090.
 The index map is a computerised map based on the Ordnance Survey Map providing an index of the land comprised in every registered title and pending application for first registration: Land Registration Rules 2003, SI 2003/1417, r 145. See further Land Registry Practice Guide 10 (April 2004): Official searches of the index map.
 Land Registry Practice Guide 10 (April 2004): Official searches of the index map, para 4.
 Land Registry Practice Guide 10 (April 2004): Official searches of the index map, paras 1.2 and 8.
 An application for official copies can be made as normal using Land Registry Form OC1 with the words 'please supply the title number' written boldly at the head of the form: Land Registry Practice Guide 10 (April 2004): Official searches of the index map, para 4.
 Land Registration Act 2002, s 66.
 Although there is an index of proprietors' names maintained by the Land Registrar which would potentially allow a search of all land registered in the name of a particular judgment debtor, this is not a public index. Land Registration Rules 2003, r 11(3) provides that a person may apply using Form PN1 for a search to be made of the index of proprietors' names against 'the name of some other person in whose property he can satisfy the registrar that he is interested generally (for instance as trustee in bankruptcy or personal representative)'. The practice of HM Land Registry is not to recognise a judgment creditor as a person 'interested generally' in the property of a judgment debtor and to refuse to allow a search of the index without a court order specifically authorising a search of the index of proprietors' names and detailing the names to be searched.
 However, in order to use the telephone service a key number is needed which can only be obtained by opening a credit account.
 Land Registration Fee Order 2006, SI 2006/1332, Sch 3, part 1.
 Land Registration Rules 2003, r 135(1).
 Land Registration Rules 2003, r 135(4). The manner in which the application should be made is explained in Land Registry Practice Guide 11 (May 2008): Inspection and applications for official copies. Details of the fees payable in respect of such applications are set out in the Land Registration Fee Order 2006, Sch 3, Pt 2.
 Land Registration Rules 2003, r 136.
 Land Registration Rules 2003, r 137(2). The application should explain why the edited version of the document is 'insufficient for their purposes' and why 'none of the information omitted is prejudicial commercial or personal information, or why the public interest in allowing a full copy to be issued outweighs the public interest in not doing so' (Land Registry Fact Sheet 9: Information to aid retrieval, p 2).
 Land Registration Rules 2003, r 137(3).
 Merchant Shipping (Registration of Ships) Regulations 1993, SI 1993/3138, reg 2.
 Merchant Shipping Act 1995, s 8(7).
 Merchant Shipping (Registration of Ships) Regulations 1993, SI 1993/3138.
 UK registration of aircraft is governed by the Air Navigation Order 2005, SI 2005/1970. See generally Halsbury's Laws of England vol 2(3), paras 633–640.
 Mortgaging of Aircraft Order 1972, SI 1972/1268.
 Road Vehicles (Registration and Licensing) Regulations 2002, SI 2002/2742, reg 27(1)(e). See also the Information Commissioner's Compliance Advice: Implications of the use and disclosure of vehicle keepers information.
 The vehicle registration and chassis numbers are required for maximum accuracy, although a search can be carried out against just the vehicle registration.
 Friendly societies and building societies also exist in incorporated form.
 Formerly the Friendly Societies Registry.
 Financial Services and Markets Act 2000, s 335.
 The relevant fees are set out in the Scale of Costs at http://www.fsa.gov.uk/Pages/doing/small_firms/MSR/MSPSC/costs/index.shtml.
 Partnership Act 1890, s 24.
 The only publicity requirements relate to the publication of the name of each partner with an address for service in Great Britain on business letters, invoices etc and at their place of business. See Business Names Act 1985, ss 1–4.
 Partnership Act 1890, s 9.
 See eg Tomlinson v Tomlinson  1 WLR 322 at 325.
 See eg R v Nugent  1 WLR 789 at 791.
 See eg Re St Michael and All Angels, Tettenhall Regis  Fam 179 at 197, an ecclesiastical case where Judge John Shand Ch suggested instructing an inquiry agent to trace relatives of those buried in the last 50 years in a churchyard that was due to be redeveloped.
  3 WLR 487, CA.
  3 WLR 487 at 503, CA.
 Taylor v Lawrence  3 WLR 640 at 644. The court decided 'to overlook the discreditable manner in which that information was … obtained' and hear the appeal on its merits.
  1 WLR 1964 at 1969.
 See, for example, James Lewis 'Watching the detectives' Legal Business (July/August 2007) 64 in respect of the Fiona Trust case. The Fiona Trust litigation led to several allegations in open court that solicitors had used evidence obtained by improper means. See, for instance, the comments of Andrew Smith J in Fiona Trust Holdings Corpn v Yuri Privalov  EWHC 1748(Comm), when deciding that a complaint that evidence obtained by improper means was not sufficient to amount to a defence to a claim for equitable relief (under the doctrine that he who comes to equity must have clean hands).
 Detailed consideration of the law of agency is outside the scope of this book ‑ see generally Bowstead and Reynolds on Agency (17th edn, 2001).
 See eg Hickman v Maisey  1 QB 752, CA, where a racing tout was found liable for trespass for standing on a highway running across the plaintiff's land to observe horse-training taking place on the land.
  1 All ER 478.
  1 All ER 478 at 484.
 The inquiry agent should be notified and registered with the Information Commission and should be asked to confirm that it is not subject to any current investigation by the Information Commissioner.
 For example, the inquiry agent might be asked to confirm that all of its staff have received appropriate training on legal issues arising out of the activities of inquiry agents (including on the Data Protection Act 1998, the Regulation of Investigatory Powers Act 2000, and the Computer Misuse Act 1990), and that they have all read and understood the Information Commissioner's May 2006 report to Parliament entitled 'What price privacy? – The unlawful trade in confidential personal information'.
  QB 479.
  RPC 41.
 A-G v Guardian Newspapers Ltd (No 2)  1 AC 109 at 261, per Lord Keith of Kinkel and at 281, CA, per Lord Goff.
  2 WLR 1232, HL.
  EMLR 21.
  EWCA Civ 1714 at ; see also Max Mosley v News Group Newspapers Ltd  EWHC 1777 (QB).
 'Data' and 'personal data' have specific definitions set out in DPA 1998, s 1. There is a further sub-category of 'sensitive personal data' defined in DPA 1998, s 2, in relation to which further safeguards apply.
 'Processing' is defined in DPA 1998, s 1 and includes: obtaining, recording, holding, organising, adapting, altering, retrieval, consultation, use and disclosure of information or data.
 DPA 1998, s 4(4) requires a data controller to comply with the data protection principles set out in DPA 1998, Sch 1, Pt I. The first data protection principle provides that personal data 'shall be processed fairly and lawfully'.
 The current maximum penalty for an offence under s55 DPA 1998 is an unlimited fine. The Information Commissioner's Annual Report 2004 at p 35 refers to the conviction of an inquiry agent under DPA 1998, s 55 for obtaining information from the DVLA by providing misleading information. The Briefing of the Information Commissioner to Parliament in respect of the Criminal Justice and Immigration Bill (dated 23 April 2008) details also that in April 2007, a tracing company, Infofind Ltd, and its managing director, pleaded guilty to 44 counts of illegally obtaining the personal data of individuals held by the Department of Work and Pensions and selling it on to a finance company tracing debtors. The Information Commissioner is pressing for increased penalties for the s 55 DPA 1998 offence to be included in the Criminal Justice and Immigration Bill currently being considered by Parliament.
 Information Commissioner v Global Investigations and Keith Roberts (unreported, 13 September 2007), Kingston Magistrates Court.
 For more detail see Archbold Criminal Pleading Evidence and Practice 2008, para 19–277.
 PHA 1997, s 2. A conviction for an offence under PHA 1998, s 2 carries a maximum penalty of six months' imprisonment.
 PHA 1997, s 3. Section 3(2) gives the court a power to award damages for '(among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment'. By virtue of s 3(3) the court has a power to grant an injunction to restrain any conduct which amounts to harassment. Any breach of the injunction is an offence under PHA 1997, s 3(5) and the court can grant a warrant for the arrest of the defendant for a breach of the injunction.
 PHA 1997, s 1(2) provides that 'the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other'.
 PHA 1997, s 7(2).
 PHA 1997, s 7(3).
 PHA 1997, s 7(4).
 For more detail see Archbold Criminal Pleading, Evidence and Practice 2008 paras 23–87–23–101.
 'Secure access' is given a wide meaning under CMA 1990, s 17(2).
 CMA 1990, s 1(1).
 CMA 1990, s 1(2).
 For more detail see Archbold Criminal Pleading, Evidence and Practice 2008 paras 25–367–25–380. An offence under RIPA 2000, s 1 carries a maximum penalty, on conviction an indictment of two years' imprisonment. The Courts have not hesitated to impose a custodial sentence in appropriate circumstances: News of The World royal editor Clive Goodman was sentenced to four months in jail after pleading guilty to RIPA offences in 2007.
 (1957) 41 Cr App Rep 5 at 8–9.
 The judgment in Williams may explain why the inquiry agents in Dubai Aluminium took documents obtained from the plaintiff's dustbins, copied them, and then returned them. However, such conduct is not without its own potential pitfalls: see paras 2.102–2.126.
 Solicitors Act 1974, s 44(1).
 Solicitors Act 1974, s 44(2). A solicitor may employ such a person with the prior consent of the Law Society.
  AC 197, PC.
  AC 197 at 203, per Lord Goddard.
 R v Leatham (1861) 8 Cox CC 498, per Crompton J.
  1 WLR 954, CA.
 Human Rights Act 1998, s 6(3)(a).
  1 WLR 954 at 956.
  1 WLR 954 at 962.
  1 WLR 954 at 962–963.
  1 WLR 954 at 963.
 2003 SLT 1136.
  AC 581 at 613, HL.
  1 WLR 607, CA.
  1 WLR 607 at 611.
 R v Cox and Railton (1884) 14 QBD 153 at 165.
 Bullivant v A-G for Victoria  AC 196 at 201, HL.
 Crescent Farm (Sidcup) Sports Ltd v Sterling Offices Ltd  Ch 553 at 565.
 Barclays Bank plc v Eustice  1 WLR 1238, CA.
 (Unreported, 7 December 1979), CA.
  1 WLR 1964.
 Now the Data Protection Act 1998.
  1 WLR 1964 at 1966.
  1 WLR 1964 at 1969.
 CPR 71.1.
 Although note that the Court of Appeal in Masri v Consolidated Contractors International Co SAL  EWCA Civ 876 did not accept that the CPR Pt 71 process amounted to the taking of evidence and therefore the Court considered that Council Regulation (EC) No 1206/2001 of 28 May 2001 (the Evidence Regulation) did not apply to CPR Pt 71.
 SI 2001/2792.
 CPR 71.1 states that the procedure is available 'for the purpose of enabling a judgment creditor to enforce a judgment or order'.
 CPR 71.2(2)(b).
 Unless the court orders otherwise: PD 71, para 2.1.
 CPR 71.2(2).
 CPR 71.2(3) and PD 71, para 1.1.
 In the case of non-money judgments the application should stipulate what the order required the judgment debtor to do.
 In the case of non-money judgments the application should also identify the matters about which the judgment creditor wishes the judgment debtor to be questioned.
 CPR 71.6(3)(a) provides that a judgment creditor may ask questions when the questioning takes place before a court officer.
 CPR 71.6(2).
 PD 71, para 2.2.
  EWHC 2171 (Fam), a case which related to RSC Ord 48.
 The Civil Proceedings Fees Order 2008, SI 2008/1053, Sch 1, paras 7.1, 8.3.
 CPR 71.2(4).
 PD 71, para 1.3.
  EWCA Civ 876.
 CPR PD 71, para 2.1.
 CPR 71.2(6).
 CPR 71.2(7).
 CPR 71.2(1)(b).
  EWCA Civ 876.
  1 KB 794, CA.
 Rules of the Supreme Court 1887, Order XLII, r 32 (the immediate predecessor to RSC Ord 48).
  1 KB 794 at 797.
  1 KB 794 at 797‑798.
  Ch 286, CA.
  1 WLR 1711.
 At  1 WLR 1711 at 1714, Millett J also rejected an argument by the judgment creditor that the proper construction of the word 'person' in accordance with the Interpretation Act 1978 should mean that 'judgment debtor' in RSC Ord 48 should include an unincorporated association as a forced and unnatural construction of the Order rendering one of its express provisions meaningless.
  1 WLR 1711 at 1713.
 CPR 71.2(1).
 Franklin v R (No 2)  QB 205, CA.
 CPR 71.8(3). See also Beeston Shipping Ltd v Babanaft International SA (The Eastern Venture)  1 All ER 923, CA.
 CPR 71.3(1).
 PD 71, para 3. The only exception is where the judgment creditor is an individual litigant in person in County Court proceedings, when the County Court bailiff will serve the order on the judgment debtor.
  EWCA Civ 876.
 CPR 71.3(2).
 CPR 6.8(3)(a)–(b).
 CPR 71.4. Absent such request, there is no requirement to pay conduct money.
 CPR 71.8(3). See also Beeston Shipping Ltd v Babanaft International SA (The Eastern Venture)  1 All ER 923, CA, in which the Court of Appeal considered (in the context of RSC Ord 48) but ultimately did not need to decide this issue.
 CPR 71.5(1).
 CPR 71.5(2).
 CPR 71.5(1)(b).
 CPR 71.5(1)(c).
 CPR 71.6(1).
 PD 71, para 4.1.
 CPR 71.6(3)(a).
 PD 71, para 4.2(2).
 PD 71, para 4.3.
 CPR 71.6(3)(b). In this context 'judge' includes masters and district judges: CPR 2.3(1).
 PD 71, para 5.1.
 PD 71, para 5.2.
 (1880) 16 Ch D 8, CA.
 Rules of Court of 1875, Ord XLV, r 1.
 (1880) 16 Ch D 8 at 10.
 (1880) 16 Ch D 8 at 11.
 (1880) 16 Ch D 8 at 12.
 (1880) 16 Ch D 8 at 12.
 (1880) 16 Ch D 8 at 12.
  EWHC 2171 (Fam).
 The assets amenable to the various methods of enforcement covered in this book are summarised in tabular form at p 6.
  3 WLR 624.
  QB 738, CA.
 The French judgment of which enforcement was sought was given in 1985, prior to the Brussels Convention entering into force between France and the United Kingdom under the Civil Jurisdiction and Judgments Act 1982. The Foreign Judgments (Reciprocal Enforcement) Act 1933 was therefore the legislation applicable to the enforcement of a French judgment in England. This is now governed by Council Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels Regulation).
 The same is true of Pt 71.
  1 AC 260.
  QB 738 at 742.
 Lugano Convention, art 16(5) and Brussels Regulation, reg 22(5) contain identical provisions.
  QB 738 at 742–743.
  Ch 13, CA.
  Ch 13 at 36.
  Ch 13 at 34.
  Ch 13 at 46.
 Neill LJ did not elaborate on the type of 'unjust' circumstances he envisaged. While there may be circumstances where, for example, a judgment debtor cannot reveal the existence of foreign debts he is owed without being in breach of foreign law obligations to another party (such that the court may decline to order the judgment debtor to answer questions in that regard), this is likely to be the exception rather than the norm. Alternatively, in such circumstances the position could be addressed by requiring appropriate undertakings from the judgment creditor as to the disclosure and use made of any information relating to the judgment debtor's foreign assets.
  Ch 286, CA.
  Ch 286 at 306.
  1 AC 260, HL.
  1 AC 260 at 272, per Lord Bingham.
  1 AC 260 at 283, per Lord Hoffmann, and at 289, per Lord Hobhouse.
 This reasoning is supported by the decision of the Court of Appeal in Masri v Consolidated Contractors International Co SAL  EWCA Civ 303 where it was held that the speeches in Société Eram did not prevent the court from ordering the appointment of a receiver in respect of foreign assets by way of equitable execution, as a receivership order operates only in personam and has no proprietary consequences. Although the point appears to have been raised directly by counsel in front of the Court of Appeal in Masri v Consolidated Contractors International Co SAL  EWCA Civ 876 (at para 15 of the judgment), the Court of Appeal did not address this point directly in its judgment.
 'Examination of judgment debtors as to their assets abroad: courts' powers and jurisdiction'  LMCLQ 465.
 See Lugano Convention, art 16(5) and Brussels Regulation, art 22(5).
  LMCLQ 465 at 470.
 Namely that the use of RSC Ord 48 in English enforcement proceedings to discover the existence of foreign assets does not confer, or purport to confer, jurisdiction on the English courts in relation to enforcement proceedings in another country where those assets are situate.
  LMCLQ 465 at 471.
  LMCLQ 465 at 471.
 Where disclosure can be obtained where it is ancillary to an interim protective measure in support of proceedings in another Contracting State under the Brussels Convention, art 24. Lugano Convention, art 24 and Brussels Regulation, reg 31.
 Or at least one who has not been able to obtain post-judgment disclosure in support of a freezing injunction.
 Or a direct ruling from the European Court of Justice.
 Under what is now the Treaty Establishing the European Community, art 293, the member states agreed to enter into negotiations with a view to securing the simplification of formalities governing the reciprocal recognition and enforcement of judgments.
 Report by Mr P Jenard on the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1979 C 59, p 1).
  ECR I-2149, ECJ.
 In the opinion of Mr Advocate General Gulamm, the position is stated rather more categorically: 'The Dresdner Bank claims that that provision must not be restrictively interpreted and that it may cover a revocatory action such as the action paulienne because the purpose of the action to set the transaction aside is to prepare for enforcement of the creditor's claim to the property in question … Clearly it should be accepted that courts in the State in which the judgment has been or is to be enforced have exclusive jurisdiction under Article 16(5) of the Convention only in cases directly connected with the enforcement of judicial decisions already taken or with other enforceable instruments.' (Emphasis added)
 Or the Lugano Convention, art 16(5) or the Brussels Regulation, art 22(5).
 That persons should be sued in the Contracting State in which they are domiciled. Identical provisions appear as the Lugano Convention, art 2 and the Brussels Regulation, art 2.
 The House of Lords decision in Kuwait Oil Tanker Company SAK v Qabazard  1 AC 300 considered the provisions of art 16(5) in the context of garnishee proceedings and concluded that the effect of this provision was that the English court did not have jurisdiction to make a garnishee order in respect of a foreign debt. However, the question of whether the oral examination procedure provided under CPR Pt 71 should be considered 'proceedings concerned with the enforcement of judgments' under art 16(5) was not considered.
  EWCA Civ 303.  EWCA Civ 303 at -.
 See chapter 6.
  EWCA Civ 876.
 (1914) 30 TLR 112, CA.
 Rules of the Supreme Court 1883, Ord XLII, r 32.
 Civil Procedure 2008, vol 1, para 71.2.7.
  1 All ER 923, CA.
  1 All ER 923 at 927.
 CPR 71.8(1).
 CPR PD 71, para 6.
 Civil Procedure 2008, vol 1, para 71.8.1.
 This discretionary aspect was emphasised by Rix LJ in Islamic Investment Co of the Gulf (Bahamas) Ltd v Symphony Guns NV  EWCA Civ 389 when authorising a suspended committal order made by the first instance court. The first instance judge had not had sufficient information before him to conclude, to the criminal standard of proof, that the judgment debtor was deliberately in breach of the Court Order under CPR 71. Rix LJ also emphasised that the Court should be suitably cautious about imposing suspended committal orders in circumstances where there is evidence either of a medical kind or from a lawyer relating to the fact that the judgment debtor was not permitted to be outside a foreign jurisdiction on the day fixed for the examination under CPR 71. The appropriate practice in such cases is likely to be that the Court issues a warning that, if the judgment debtor does not appear on the next occasion fixed, an order for committal may well be made.
 Set out in CPR 71.4.
 Set out in CPR 71.5.
 PD 71, para 7.1.
 PD 71, para 7.2.
 For an example, see Islamic Investment Company of the Gulf (Bahamas) Ltd v Symphony Guns NV  EWCA Civ 389.
 PD 71, para 8.1.
 PD 71, para 8.2.
 CPR 71.8(4)(b).
 PD 71, para 8.3.
 PD 71, para 8.4 provides that the hearing may take place before a master or district judge.
 PD 71, para 8.5.
 Beeston Shipping Ltd v Babanaft International SA, The Eastern Venture  1 All ER 923, CA, a case in which a judgment debtor was held not to be in contempt by failing to attend court on the adjourned hearing date since he had not been served with the amended order.
 Civil Procedure 2008, vol 1, para 71.8.1.
 PD 71, para 8.6.
 Contempt of Court Act 1981, s 14(1).
 Paragraph 101.
 This argument was made by (amongst others) the Civil Justice Council. See para 102.
 Paragraph 99.
 Paragraph 105.
 Paragraph 100.
 The Crown Prosecution Service Code for Crown Prosecutors states that there must be sufficient evidence to provide 'a realistic prospect of conviction'.
 Paragraph 100.
 (1989) 11 Cr App Rep (S) 587.
 (1989) 11 Cr App Rep (S) 587 at 589–590.
 Blunt v Park Lane Hotel Ltd  2 KB 253, CA and, more recently, Den Norske Bank ASA v Antonatos  3 WLR 711, CA.
 'The right of a person in any legal proceedings … to refuse to answer any question or produce any document or thing if to do so would tend to expose that person to proceedings for an offence or for the recovery of a penalty: (a) shall apply only as regards criminal offences under the law of any part of the United Kingdom and penalties provided for by such law; and (b) shall include a like right to refuse to answer any question or produce any document or thing if to do so would tend to expose the husband or wife of that person to proceedings for any such criminal offence or for the recovery of any such penalty.'
 See eg Theft Act 1968, s 31, Criminal Damage Act 1971, s 9; Supreme Court Act 1981, s 72, and Fraud Act 2006, s 13
 British Steel Co v Granada Television Ltd  AC 1096, HL.
 The question was left open in Re Westinghouse Uranium Contract  AC 547, HL and Sociedade Nacional de Combustiveis de Angola UEE v Lundqvist  2 WLR 280, CA.
 Sociedade Nacional de Combustiveis de Angola UEE v Lundqvist  2 WLR 280 at 290.
 Tarasov v Nassif (11 February 1994, unreported), CA.
  3 All ER 74 at 90, CA.
 See also Cobra Golf Inc v Rata  Ch 109 at 126–128 in relation to search orders and Kensington International Ltd v Republic of Congo  EWCA Civ 1128 in the context of Norwich Pharmacal relief.
 (1994) Times, 24 February, CA.
 PCA 2002, s 329. Criminal property is defined in PCA 2002, s 340 and includes documents and information.
 (1997) 23 EHRR 313.
 Civil Procedure 2008, vol 1, para 71.8.1.
 See eg 'The Legality of Debt Enforcement', a discussion paper published by Joseph Jacob of the London School of Economics in November 2003 available on the website of Justice (an independent human rights organisation) at http://www.justice.org.uk/ourwork/legalsystem/index.htm.
 CPR 45.1(2)(c).
 Civil Procedure 2008, vol 1, para 71.3.3.
 See Pt 44.
 General rules about costs are set out in Pt 44 and the accompanying Practice Direction, which should be referred to for the specific provisions.
 Now known as the Ministry of Justice.
 Report on the First Phase of the Enforcement Review, July 2000.
 SI 2001/2792.
 See Chapter 3 of the March 2003 White Paper on Effective Enforcement. At present, while a court may order a defendant to sign a letter of instruction authorising certain individuals to obtain information relating to his assets from third parties such as banks, the third party will not be compelled to comply. Such letters are primarily sought during the course of litigation in conjunction with freezing injunctions to prevent a defendant from dissipating his assets, rather than at the enforcement stage.
 See further Consultation Paper No 4, Chapter 4 ('The Oral Examination'), para 4.17.
 It should be noted that under CA 1985, s 723B, a serving or prospective director may apply to the Secretary of State for a confidentiality order where making his residential address available to members of the public is likely to expose him, or a person who lives with him, to a serious risk of violence or intimidation. Where a confidentiality order is in place, the residential address of a director will not be available from Companies House.