Kerry Underwood

CPR 71 ORDER FOR EXAMINATION OF JUDGMENT DEBTOR AVAILABLE FOR COSTS ORDERS WHERE AMOUNT NOT YET DETERMINED

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Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

 

In

W Nagel (a firm) and another v Pluczenik and another [2019] EWHC 3126 (QB)

following costs orders made against the claimant and the defendant, the net position was that substantial costs were payable by the defendant to the claimant.

The claimant applied for an order under CPR 71 “Orders to obtain information from judgment debtors” against two officers of the defendant, incorporated outside England and Wales, to attend court for questioning about the defendant’s means both in respect of the outstanding part of the quantified money judgment and the costs orders.

The CPR 71 orders were served on the officers while they were visiting England and an oral hearing took place, but was adjourned part-heard.

The Court of Appeal dismissed the defendant’s appeal against the CPR 71 orders and made further costs orders against the defendant, who failed to attend the adjourned hearing.

The defendant subsequently settled all sums due by way of quantified orders for payment and accrued interest.

Following disagreements about the terms of the order made by the Master for the continuation of the CPR 71 examination, which were not minuted or sealed, she gave a reasoned judgment, finding that the defendant remained a judgment debtor for the purpose of CPR 71, even though the only part of the judgment outstanding was the unquantified costs liability, suggested to be in excess of £600,000.

The defendant’s appeal against the Master’s order was dismissed.

The High Court Judge held that CPR 71 allows a person to be compelled for examination as a “judgment debtor” even when the only outstanding parts of the judgment against them are costs orders for sums which have yet to be agreed or determined by assessment, so that payment for those sums has not yet fallen due.

The power to order a judgment debtor to attend court in CPR 71.2(1) is a single power, applicable to all types of judgment and order, and the amount of costs payable does not have to be determined before CPR 71 can be invoked.

The judge rejected the defendant’s contention that the Master had erred in continuing the CPR 71 procedure, finding that she had made a decision which was open to her in the exercise of her discretion and had given an impeccable judgment in support of it.

Written by kerryunderwood

December 4, 2019 at 6:55 am

Posted in Uncategorized

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