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Lowsley and Another v. Forbes (Trading as LE Design Services)
Factual and Procedural Background
On 2 February 1981 the Plaintiffs obtained a consent judgment against the Defendant for £70,000. The Defendant then left The State. By 9 July 1992 accrued interest at 15 per cent for 11½ years had increased the debt to approximately £184,199. Because more than six years had elapsed since judgment, the Plaintiffs applied under R.S.C. Ord. 46 r. 2(1)(a) for leave to enforce.
The Master granted leave, together with a charging order nisi over the Defendant’s interest in the matrimonial home and a garnishee order nisi. At first instance Judge Tuckey reduced interest to six years, producing a total of about £133,000. The Court of Appeal reinstated the Master’s order, allowing interest for the whole period. The Defendant appealed to the House of Lords (now the UK Supreme Court).
Legal Issues Presented
- Whether section 24(1) of the Limitation Act 1980 bars execution of a judgment after six years or only bars the bringing of a fresh action upon the judgment.
- If execution may proceed after six years, whether section 24(2) limits the recoverable interest to the six-year period immediately preceding the execution.
- If the six-year cap in section 24(2) applies, whether the period can be extended under section 32(1) of the 1980 Act by reason of the Defendant’s alleged concealment of relevant facts.
Arguments of the Parties
Defendant’s (Appellant’s) Arguments
- Invoking the extended definition of “action” in section 38(1), the Defendant contended that section 24(1) bars all proceedings on a judgment—including execution—after six years, so the Master lacked jurisdiction to grant leave for enforcement.
- Relied on historical analysis of limitation statutes (from the Statute of Westminster II 1285 through the Real Property Limitation Acts 1833 and 1874) to argue that Parliament maintained an absolute bar on enforcement.
- Submitted that if execution were nonetheless permitted, section 24(2) must still cap interest to six years, and any broader award by the Court of Appeal was erroneous.
Plaintiffs’ (Respondents’) Arguments
- Maintained that “action” in section 24(1) refers only to a fresh action upon a judgment; execution proceedings fall outside the bar but remain subject to the court’s discretionary control under Ord. 46.
- Emphasised that the Limitation Act 1980 is a consolidation Act and should not be construed to change settled law without explicit words.
- Argued that section 24(2) does not limit the recovery of interest where execution is pursued, pointing to the grammatical link between subsections (1) and (2) in the 1939 Act.
- In the alternative, invoked section 32(1) on the basis that the Defendant allegedly concealed his whereabouts and assets, delaying discovery.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sheldon v. Outhwaite [1996] 1 AC 102 | Limited use of legislative history when construing a consolidation statute. | Cited to caution against unnecessary resort to antecedent materials. |
| Farrell v. Alexander [1977] AC 59 | Same principle as above. | Reinforced the Plaintiffs’ submission on statutory construction. |
| Farran v. Beresford (1842) 10 C.&F. 319 | Character of scire facias and limitation of 20 years for enforcing judgments. | Historical support for Defendant’s argument on absolute time bars. |
| Farrell v. Gleeson (1844) 11 C.&F. 702 | Confirmed that scire facias created a new right; judgments unenforceable after statutory period. | Part of the historical analysis accepted as background. |
| Watson v. Birch (1847) 15 Sim. 523 | Section 40 of the 1833 Act barred any proceeding on a judgment after 20 years. | Quoted to illustrate earlier courts’ broad reading of “proceeding.” |
| Jay v. Johnstone [1893] 1 QB 25, 189 | Affirmed continuing effect of statutory limitation on judgments. | Used to show courts assumed an absolute bar remained post-1875. |
| W.T. Lamb & Sons v. Rider [1948] 2 KB 331 | Drew distinction between actions on a judgment and execution upon it; held limitation applies only to fresh actions. | Ultimately endorsed by the House as reflecting Parliament’s intent in the 1980 Act. |
| Lougher v. Donovan [1948] 2 All ER 11 | Suggested divergence from Lamb v. Rider on execution questions. | Mentioned as potentially inconsistent but not determinative. |
| Berliner Industriebank AG v. Jost [1971] 1 QB 278 | Followed Lamb v. Rider; treated limitation as affecting actions but not execution. | Cited as later authority accepting the distinction. |
| National Westminster Bank plc v. Powney [1991] Ch 339 | Noted tension between Lougher and Lamb. | Referenced in historical narrative. |
| Stubbings v. Webb [1993] AC 498 | Approach to interpreting statutes in light of Law Reform Committee reports. | Paralleled the court’s reliance on the 1977 Committee Report for limitation reform. |
| Barras v. Aberdeen Sea Trawling Co. [1933] AC 402 | Presumption that re-enacted words carry previous judicial meaning. | Applied to infer Parliament adopted the Lamb v. Rider interpretation. |
| Black-Clawson v. Papierwerke [1975] AC 591 | Relevance of Parliament’s understanding of existing law in statutory interpretation. | Supported the majority view that legislative perception is decisive. |
| Letang v. Cooper [1965] 1 QB 232 | Earlier authority considered in Stubbings v. Webb. | Referred to illustrate competing canons of construction. |
Court's Reasoning and Analysis
Delivering the leading opinion, Judge Lloyd (with Judges Browne-Wilkinson, Nolan, Hoffmann and Hope concurring) undertook a detailed historical and purposive analysis.
First Issue – Meaning of “action” in section 24(1): The House accepted that Parliament, when enacting the Limitation Amendment Act 1980 and retaining the wording of section 24, must be taken to have adopted the interpretation given in Lamb v. Rider. Under that reading, “action” denotes a fresh lawsuit upon a judgment and does not encompass execution proceedings. Consequently, execution after six years is not barred, though leave is still required under Ord. 46.
Second Issue – Interest under section 24(2): Contrary to the Court of Appeal, the House read “no arrears of interest … shall be recovered” in its ordinary sense, applying to all forms of recovery, including execution. The historical separation of what are now subsections (1) and (2) (originally sections 40 and 42 of the 1833 Act) supported an independent effect. Thus, interest older than six years cannot be enforced.
Third Issue – Alleged Concealment (section 32): The recovery of interest by execution is not a “right of action.” Even if it were, concealment of the Defendant’s whereabouts or assets is not concealment of a “fact relevant” to such a right. Section 32 therefore affords no extension.
Accordingly, the House dismissed the appeal on the first issue but allowed it on the second, restoring Judge Tuckey’s order limiting interest to six years.
Holding and Implications
HOLDING: The appeal was DISMISSED on the question whether execution is barred after six years, but ALLOWED on the question of interest, reinstating the judgment of Judge Tuckey.
Immediate effects include repayment by the Plaintiffs to the Defendant of £39,777.48 with interest, and discharge of the Mareva injunction, charging order, and possession order obtained in 1992–1994.
Broader implications: The decision confirms that judgments may be executed beyond six years with the court’s permission, yet limits enforceable interest to a six-year period, clarifying the interaction of sections 24(1) and 24(2) of the Limitation Act 1980. No new precedent on limitation periods was established, but the ruling consolidates existing interpretive principles.
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