Lloyd's Maritime and Commercial Law Quarterly
EXAMINATION OF JUDGMENT DEBTORS AS TO THEIR ASSETS ABROAD: COURTS’ POWERS AND JURISDICTION
Peter Kaye
Currently the limelight falls on the scope of English courts’ powers to control the disposition of property situated out of the jurisdiction, on a provisional basis, and to make ancillary provision for disclosure of assets affected. The movement to date is in the direction of loosening the restraints upon the exercise of those powers, and doubtless the highest courts will eventually confirm the precise extent of the shift that has taken place.1
In the meantime, however, mention can be made of a related field, in which parallel developments in the law have occurred, yet to which rather less attention appears to have been devoted, possibly because of its limitation to one particular form of proceedings, namely, the enforcement of judgments. The area in question is that of courts’ power to make orders for examination of judgment debtors as to their English or foreign assets for execution under R.S.C. Ord. 48 in cases where these are the sole orders sought, and are not to be ancillary to an application for a Mareva injunction in respect of the property.2
The significant distinguishing feature of the type of case under consideration is its association with enforcement. Given that a judgment has actually been obtained in such circumstances, the courts’ practices in respect of enforcement thereof against foreign assets, logically, can be expected to have a considerable influence upon their approach towards examination and disclosure of those assets for the purpose. In addition, international jurisdiction grounds specifically affecting enforcement measures and accompanying orders for examination, will have to be taken into account.
There are in fact two important questions which arise for discussion in an international context, where English courts are requested to exercise their power to order examination of a judgment debtor as to his assets under R.S.C. Ord. 48, r. 1,
1. See Babanaft International Co. S. A. v. Bassatne [1989] 2 W.L.R. 232, (C.A.); Republic of Haiti v. Duvalier [1989] 2 W.L.R. 261, (C.A.); Derby & Co. Ltd v. Weldon (No.1) [1989] 2 W.L.R. 276, (C.A.); Derby & Co. Ltd. v. Weldon (Nos.3 and 4) [1989] 2 W.L.R. 412, (C.A.).
2. R.S.C. Ord. 48, r. 1(1) states:
Where a person has obtained a judgment or order for the payment by some other person (hereinafter referred to as “the judgment debtor”) of money, the Court may, on an application made ex parte by the person entitled to enforce the judgment or order, order the judgment debtor or, if the judgment debtor is a body corporate, an officer thereof, to attend before such master, registrar or nominated officer as the Court may appoint and be orally examined on the questions:
- (a) whether any and, if so, what debts are owing to the judgment debtor, and
- (b) whether the judgment debtor has any, and if so, what other property or means of satisfying the judgment or order;
and the Court may also order the judgment debtor or officer to produce any books or documents in the possession of the judgment debtor relevant to the questions aforesaid at the time and place appointed for the examination …
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