The debtor appealed against an order to answer questions and disclose documents relating to any debts owed to him or other property or means belonging to him outside the jurisdiction. The court looked at the examination of a judgment debtor under Order 48 of the Rules of the Supreme Court.
Held: the Court of Appeal dismissed the appeal. 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. Whereas Order 49 rule 1 required that the garnishee must be in the jurisdiction, there is no similar limitation that the garnished debt must be properly recoverable within the jurisdiction.
Balcombe LJ said: ‘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 situ.’ and ‘It is true that, as a matter of discretion, the court will not garnish a debt where the garnishee, although within the jurisdiction, is not indebted within the jurisdiction, if to do so might expose the garnishee to the risk of having to pay the debt or part of the debt twice over. It may also be true, as Mr Jones submitted, that there is no reported case where this discretion has been exercised so as to garnish a debt which is only recoverable outside the jurisdiction. Nevertheless, if the court has jurisdiction to garnish a debt recoverable outside the jurisdiction, even though as a matter of discretion it is unlikely to exercise that jurisdiction, it seems to us that there must be power under Order 48 to discover the existence of such debts.’
Judges:
Balcombe LJ, Lloyd LJ
Citations:
[1988] QB 738
Jurisdiction:
England and Wales
Citing:
No Longer good law – Richardson v Richardson KBD 1927
A bank owed debts to a judgment debtor customer on accounts held both in London and in Africa. It was accepted that the former were subject to a garnishee order. The dispute concerned the latter.
Held: The bank is no doubt indebted to the . .
Approved – SCF Finance Co Ltd v Masri (No 3) 1987
The court accepted that in a case where the garnishee was not indebted within the jurisdiction that might be relevant to the exercise of the court’s discretion. Since, in this case, the debt in question was an English debt, the court’s jurisdiction . .
Cited by:
Cited – Masri v Consolidated Contractors International Co Sal and Others HL 30-Jul-2009
The claimant sought to enforce a judgment debt against a foreign resident company, and for this purpose to examine or have examined a director who lived abroad. The defendant said that the rules gave no such power and they did, the power was outside . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 29 May 2022; Ref: scu.183544