COUNSEL: Stephen Hockman QC and Adrian Jack for the defendant; Anthony Mann QC and James Pickering for the plaintiffs.

SOLICITORS: Sharpe Pritchard agents for Pinkerton Leede & Co, Cheltenham; Lancasters.

JUDGES: Lord Browne-Wilkinson, Lord Lloyd of Berwick, Lord Nolan, Lord Hoffmann and Lord Hope of Craighead

DATES: 21, 22, 23 April, 29 July 1998

HEADNOTE: On 2 February 1981 the plaintiffs obtained a judgment by consent against the defendant in the sum of £70,000. By 9 July 1992 the judgment debt plus 11 years’ interest at 15% had grown to £184,199. The plaintiffs obtained leave from the master to enforce the judgment under RSC Ord 46, r 2(1)(a), and also a charging order nisi on the defendant’s share of the matrimonial home, and a garnishee order nisi over his bank account. The judge held that s 24(1) of the Limitation Act 1980, which barred the bringing of an “action” on a judgment more than six years after the date on which the judgment became enforceable, did not bar execution of a judgment after six years but only a fresh action on the judgment, but that the effect of s 24(2) was that, when a judgment was executed after six years, interest on the judgment was limited to a period of six years before the date of execution. He accordingly reduced the interest to six years at 15%, making £133,00 in all, and made the orders for execution absolute in that amount. On appeal, the Court of Appeal held that interest should run from the date of judgment and restored the order of the master. The defendant appealed to the House of Lords.

INTRODUCTION: The defendant, James Moffat Forbes (trading as L E Design Services), appealed with leave of the Appeal Committee given on 18 December 1996 from the order of the Court of Appeal (Evans, Saville and Morritt LJJ) on 21 May 1996 whereby they (i) allowed the appeal of the plaintiffs, Michael Anthony Foster Lowsley and Rosalieve Lowsley, from the decision of Tuckey J on 29 September 1992 holding that execution of the judgment obtained by the plaintiffs in 1981 against the defendant was not statute-barred, but that interest thereon was limited to six years; and (ii) dismissed the defendant’s cross-appeal from that decision. The facts are set out in the opinion of Lord Lloyd.

JUDGMENT

Their Lordships took time for consideration. 29 July 1998. The following opinions were delivered.

JUDGMENT 1:
LORD BROWNE-WILKINSON. My Lords, I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Lord Lloyd of Berwick. I agree with it and for the reasons which he gives I would dismiss the appeal save as to the question of interest, on which latter point I would allow the appeal and restore the judgment of Tuckey J.

JUDGMENT 2:
LORD LLOYD OF BERWICK. My Lords, the Limitation Act 1980 continues to give rise to questions of some difficulty. Section 24 provides:

“(1) An action shall not be brought upon any judgment after the expiration of six years from the date on which the judgment became enforceable.

(2) No arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years from the date on which the interest became due.”

The word “action” is defined by s 38(1) as including “any proceeding in a court of law”.

The first question is whether s 24(1) bars execution of a judgment after six years, or whether it only bars the bringing of a fresh action on the judgment. If the answer is, as the plaintiffs contend, that it only bars a fresh action, the second question is whether, when a judgment is executed after six years, interest on the judgment is limited under s 24(2) to a period of six years before the date of execution. Tuckey J answered the first question in favour of the plaintiffs, and the second question in favour of the defendant. The Court of Appeal agreed with the judge on the first question but disagreed on the second.

It is scarcely necessary to recount the facts in order to decide these two questions of construction, save only to say that on 2 February 1981 the plaintiffs, Mr and Mrs Lowsley, obtained a judgment by consent against the defendant Mr Forbes, in the sum of £70,000. Mr Forbes then left the country, whether to seek employment (as he claims) or to evade the judgment need not be decided. By 9 July 1992 the judgment debt plus 11 years’ interest at 15% had grown to £184,199. The plaintiffs obtained leave from the master to enforce the judgment under RSC Ord 46, r 2(1)(a). Leave was necessary because over six years had elapsed since the date of the judgment. They also obtained a charging order nisi on the defendant’s share of the matrimonial home, and a garnishee order nisi over his bank account. Tuckey J reduced the interest to six years at 15%, making £133,000 in all. The orders for execution were made absolute in that amount. On further appeal, the Court of Appeal restored the order of the master. It was held that interest should run from the date of judgment. The defendant now appeals on both questions to your Lordships.

The principal argument which Mr Hockman QC, for the defendant, advances on the first question is that, having regard to the extended meaning of “action', all proceedings for enforcement of the judgment debt are now barred under s 24(1) of the Act. If so, the master ought not to have given leave to enforce the judgment; and if the judgment debt is itself statute-barred, there could clearly be no question of recovering interest.

In support of his main argument, Mr Hockman took your Lordships back to the origins of the modern law of limitation. Mr Anthony Mann QC for the plaintiffs, pointed out that the Limitation Act 1980 is a consolidation Act. He reminded us of what Lord Keith of Kinkel said in the same context as recently as 1995 in Sheldon v R H M Outhwaite (Underwriting Agencies) Ltd [1995] 2 All ER 558 at 563, [1996] AC 102 at 140:

“Recourse to the antecedents of a consolidation statute should only be had when there is a real difficulty or ambiguity incapable of being resolved by classical methods of construction: see Farrell v Alexander [1976] 2 All ER 721 at 726, [1977] AC 59 at 73 per Lord Wilberforce.”

Mr Mann submits that s 24(1) does not give rise to any real difficulty. “Action” means a fresh action. The extended definition must be read in the same light.

I see the force of this objection. But Mr Hockman argues that the extended definition of “action” is capable of two possible meanings. There is therefore an ambiguity. In any event one cannot do justice to Mr Hockman’s argument without giving some account of the background.

Mr Hockman showed how at common law there was no limitation period at all for the enforcement of judgments. There was, however, a presumption that a judgment is satisfied within a year and a day. If for whatever reason the judgment creditor failed to issue execution within that period, it was necessary for him to apply to revive the judgment by writ of scire facias. This was a new procedure introduced by the Statute of Westminster the Second (1285). Unless the debtor showed cause why the judgment should not be revived, execution would follow.

Until 1833 there was no time limit for applying for a writ of scire facias, although the longer the period that elapsed between the judgment and the application the greater the formalities required. Thus if the judgment was under seven years old, the judgment creditor was entitled to sue out a writ of scire facias as of course. If it was over 20 years, there had to be a rule to show cause: see Tidd Practice of the Courts of King’s Bench and Common Pleas (9th edn, 1828) p 1106.

But then in 1833 came the Real Property Limitation Act. By s 40 it was provided:

“… no Action or Suit or other Proceeding shall be brought, to recover any Sum of Money secured by any Mortgage, Judgment, or Lien, or otherwise charged upon or payable out of any Land … but within twenty Years next after a present Right to receive the same shall have accrued … unless in the meantime some Part of the Principal Money, or some Interest thereon, shall have been paid, or some Acknowledgement of the Right thereto shall have been given in Writing …”

The reference to “judgment” may seem out of place in the context of mortgages and liens. But the explanation is that under the Statute of Westminster the effect of a judgment was to bind one-half of the judgment debtor’s freehold lands. Execution was by writ of elegit, whereby the judgment creditor was put in possession of half the rents or profits. It was natural, therefore, for the 1833 Act to apply to judgments binding the debtor’s real estate as it applied to mortgages and liens.

In two cases which came before the House on appeal from the Court of Exchequer in Ireland in the early 1840s there was much discussion as to the nature of scire facias, and in particular whether scire facias created a new right, or whether it only operated as a continuation of the original judgment: see Farran v Beresford (1843) 10 Cl & Fin 319, 8 ER 764 and Farrell v Gleeson (1844) 11 Cl & Fin 702, 8 ER 1269. In the former case the point was left open by Tindal CJ giving the unanimous opinion of the judges. But Lord Lyndhurst LC said in passing that he agreed with the judges that the plaintiff had acquired a new right by scire facias, and this view was confirmed by his successor, Lord Cottenham, in the second of the two cases, after elaborate argument by the Attorney General on the one side and the Solicitor General on the other. At all events there seems to be no doubt at all that in the absence of an intervening writ of scire facias a judgment debt became statute-barred for all purposes after 20 years. It was not only too late to bring a fresh action on the judgment; it was also too late to execute. This was a cause of great anxiety in Ireland, as Lord Brougham pointed out in Farran v Beresford (1843) 10 Cl & Fin 319, 8 ER 764. For it appears that in Ireland judgments were commonly left outstanding for very long periods, apparently as a form of investment.

In Watson v Birch (1847) 15 Sim 523, 60 ER 721 it was argued that the 1833 Act did not apply to cases where the judgment creditor was seeking to execute on the debtor’s personal estate. But this argument was rejected. Shadwell V-C said (15 Sim 523 at 524-525, 60 ER 721 at 722):

“The intention of the Legislature was that no proceeding whatever should be taken on a judgment after the lapse of twenty years from the time when the money secured by it became due, unless some payment should have been made on account of it, or some acknowledgment of it should have been given in writing within the period of twenty years.”

And so it continued until 1852.

By s 128 of the Common Law Procedure Act of that year the old year and a day rule was abolished. Judgments could be executed at any time within six years without a revival of the judgment by scire facias. Where revival was necessary by reason of a change of parties or lapse of time beyond six years, it was to be done by writ of revivor instead of scire facias, and in straightforward cases by suggestion on the roll. But these procedural changes did not affect the absolute statutory bar after 20 years imposed by s 40 of the 1833 Act.

Then came s 8 of the Real Property Limitation Act 1874, which re-enacted s 40 of the 1833 Act in identical language, save that the period of 20 years was reduced to 12.

The next important landmark was the Supreme Court of Judicature Act 1875 which amended the Supreme Court of Judicature Act 1873. Section 16 provided for rules of court to regulate the procedure of the High Court of Justice and the Court of Appeal. The rules were set out in Sch 1. Order 42 covered execution. Rules 18 and 19 provided as follows:

“18. As between the original parties to a judgment, execution may issue at any time within six years from the recovery of the judgment.

19. Where six years have elapsed since the judgment, or any change has taken place by death or otherwise in the parties entitled or liable to execution, the party alleging himself to be entitled to execution may apply to the Court or a Judge for leave to issue execution accordingly. And such Court or Judge may, if satisfied that the party so applying is entitled to issue execution, make an order to that effect …”

Mr Mann argued, and Evans LJ in the Court of Appeal in the instant case has held, that the 1875 Act brought about a fundamental change. The old absolute time bar on execution after 20 years, subsequently reduced to 12 years, was replaced by a discretionary bar after six years. Mr Hockman countered that if this was so, it seems to have come about almost by accident; for if it was intended to make so important a change, one would surely have expected an express provision to that effect. Yet the 1874 Act, which had been passed only the year before, re-enacted s 40 of the 1833 Act in identical language; and the meaning of that language had been conclusively determined by the House in Farran v Beresford (1843) 10 Cl & Fin 319, 8 ER 764 and Farrell v Gleeson (1844) 11 Cl & Fin 702, 8 ER 1269.

For my part I find great force in Mr Hockman’s argument; and this seems to have been the view of the Divisional Court ([1893] 1 QB 25) and the Court of Appeal ([1893] 1 QB 189) in Jay v Johnstone. The question in that case was whether “judgment” in s 8 of the 1874 Act included personal judgments. This was, of course, the very question which had been decided in 1847 by Shadwell V-C in Watson v Birch (1847) 15 Sim 523, 60 ER 721. It was submitted on behalf of the plaintiff in Jay v Johnstone that by an Act passed in 1864 [the Judgments Act 1864] judgments had ceased to be an automatic charge on land, and that s 40 of the 1833 Act had for that reason been impliedly repealed so far as it related to judgments. If so, then Watson v Birch was no longer good law.

This submission was roundly rejected. “… do you contend” asked Lord Coleridge CJ ([1893] 1 QB 25 at 26) in the course of argument “that there is now no period of limitation in respect of actions on judgments?” He regarded such a result as absurd. It had been argued on the other side that the judicial interpretation of s 40 of the 1833 Act given by Shadwell V-C in Watson v Birch had been adopted by Parliament in the 1874 Act. Wills J ([1893] 1 QB 25 at 29) regarded that argument as “absolutely conclusive.” As for the 1864 Act he said (at 30):

“Therefore, as I have said, if [the 1864 Act] did repeal the provision in [s 40 of the 1833 Act] as to judgments, there would be no period of limitation at all with respect to personal judgments. I cannot conceive, in the absence of express enactment, that Parliament could intend to go back on itself and to take away altogether the existing limitation to actions on judgments. To do so would be entirely contrary to the tendency of modern legislation.”

The reasoning of the Divisional Court ([1893] 1 QB 25) was upheld in the Court of Appeal ([1893] 1 QB 189). Lindley LJ (at 190) described Watson v Birch as a decision which “has been accepted and acted upon by everybody without question ever since …” The effect of that decision was, he said, that a judgment could not be enforced after 20 years. “To adopt the argument of the appellants, would be to produce an effect not dreamt of by any one, and to reverse the decisions of forty years’ (see [1893] 1 QB 189 at 192).

It will be noticed that there was no suggestion by counsel, or by any of the four judges in the Divisional Court or Court of Appeal, that the old law had been swept away by the Supreme Court of Judicature Act 1875. Mr Mann submitted that since indeed there never was any argument on the point, the decision amounts to no more than an assumption as to the state of the law in 1892. But if so, it is an assumption to which I would myself attach very great weight.

The Limitation Act 1939 was an Act to consolidate previous Acts with amendments. Section 2(4) provides:

“An action shall not be brought upon any judgment after the expiration of twelve years from the date on which the judgment became enforceable, and no arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years from the date on which the interest became due.”

The first half of this subsection re-enacts s 8 of the 1874 Act. The second half re-enacts s 42 of the 1833 Act. Both Acts were repealed in their entirety. It was not suggested that the 1939 Act had made any changes in the relevant law by reason only that the 1874 Act refers to an “action or suit or other proceeding … brought to recover any sum of money secured by any … judgment” whereas s 2(4) refers to “an action … upon any judgment” with an extended meaning of “action” to include “any proceeding in a court of law'. The change, if any, is said to have been brought about in 1875.

Thus the position after the Limitation Act 1939 came into force was that a judgment debt became statute-barred after 12 years. This was the meaning which the courts had given to the language of s 2(4) of the 1939 Act and its predecessors for over 100 years. The existence of the statutory bar was not regarded as being in any way inconsistent with a discretionary bar on execution after six years under RSC Ord 42, r 23(a), now Ord 46, r 2(1)(a).

But then in 1948 came W T Lamb & Sons v Rider [1948] 2 All ER 402, [1948] 2 KB 331. The facts were that the plaintiffs obtained judgment for £500 under Ord 14 in December 1938. In March 1946 they sought to enforce the judgment. Since more than six years had passed they needed leave to issue execution under Ord 42, r 23(a). The master refused leave. There was no appeal. Two years later the plaintiffs made a further application for leave. This time they were successful. But the master’s order was then reversed by the judge in chambers. Nevertheless the judge gave the plaintiffs leave to appeal against the original order refusing leave to execute in 1946. The defendant appealed to the Court of Appeal. It was argued by Mr Terrell, on behalf of the plaintiffs, that they did not need leave to enforce the judgment, on the ground that Ord 42, r 23(a) was ultra vires. A discretionary bar on execution after six years was, he said, inconsistent with the statutory right to issue execution at any time up to 12 years.

The judgment of the Court of Appeal was given by Scott LJ. In the course of his judgment he went over the same historical ground as I have done. But he drew different conclusions. In his view s 40 of the 1833 Act was concerned with the right to bring a fresh action on a judgment, and not with execution. The right to issue execution was, he said, always regarded as quite separate. He said ([1948] 2 All ER 402 at 408, [1948] 2 KB 331 at 338):

“The relevant provisions of the Real Property Limitation Acts 1833 and 1874, and of the Limitation Act, 1939, dealt, in our opinion, with the substantive right to sue for and obtain a judgment, and with that alone. The Common Law Procedure Act, 1852, and R.S.C., Ord 42, were concerned, and concerned alone, with procedural machinery for enforcing a judgment when obtained. The two subjects were formerly quite independent and distinct, the one from the other, and we are quite unable to attribute to the definition of ‘action’ in the Limitation Act, 1939, the effect of merging the two together.”

Since “proceeding” in the extended definition did not, in Scott LJ’s view, include proceedings by way of execution, it followed that the 12 years allowed by s 4(2) of the 1939 Act was not inconsistent with a discretionary bar on execution after six years.

I agree, of course, that Ord 42 r 23(a) was not ultra vires. Mr Terrell’s argument was indeed a bold one, as Scott LJ observed. But I would not, with respect, agree with the steps in Scott LJ’s reasoning. In particular I cannot agree that the words “Action or Suit or other Proceeding” in s 40 of the 1833 Act and s 8 of the 1874 Act were given the narrow meaning to which Scott LJ refers. It is noticeable that although Scott LJ cites Watson v Birch and Jay v Johnstone, he does not refer to Farran v Beresford (1843) 10 Cl & Fin 319, 8 ER 764 or Farrell v Gleeson (1844) 11 Cl & Fin 702, 8 ER 1269.

A month or so before W T Lamb & Sons v Rider [1948] 2 All ER 402, [1948] 2 KB 331 Scott LJ had given the judgment of the Court of Appeal in Lougher v Donovan [1948] 2 All ER 11, a decision which appears to be inconsistent with the Lamb case: see National Westminster Bank plc v Powney [1990] 2 All ER 416, [1991] Ch 339. The explanation may be that the application for a warrant for possession in Lougher v Donovan was regarded as a separate proceeding, and not as a form of execution. It was not until 1966 that a writ of possession was included for the first time in the definition of writs of execution for the purposes of Ord 46.

Be that as it may, the question now is whether it is still open to your Lordships to reconsider the reasoning in the Lamb case. One difficulty is that the reasoning in that case has been treated as correct in subsequent cases. Thus in Berliner Industriebank AG v Jost [1971] 2 All ER 117, [1971] 1 QB 278 a limitation question arose in relation to a foreign judgment debt. The plaintiffs sought to bring an action on the judgment in this country. Brandon J held that the action was statute-barred. He said:

“In my view the word ‘enforceable’ in s 2(4) of the Limitation Act 1939, does not have the meaning which this argument ascribes to it. I think it means ‘enforceable by action on the judgment’ and not ‘enforceable by execution on the judgment’ … This distinction between the right to sue on a judgment (which is a substantive right) and the right to issue execution under it (which is a procedural right or remedy) has always been recognised in the law of limitation: see W T Lamb & Sons v Rider ([1948] 2 All ER 402, [1948] 2 KB 331) where the history of the matter is reviewed.” (See [1971] 2 All ER 117 at 126, [1971] 1 QB 278 at 293.)

But much more significant is the Limitation Amendment Act 1980, which by Sch 1, para 2(d) reduced the limitation period from 12 years to six. My noble and learned friend Lord Hoffmann suggested in the course of the argument that the final report of the Law Reform Committee on Limitation of Actions (1977) (Cmnd 6923) might throw light on the reason for this amendment. And so it proved. I quote two paragraphs:

“4.13 Until 1852, an action on a judgment was the simplest way in which a judgment creditor could recover his money after a year and a day had elapsed since the judgment; and a judgment was, until 1864, chargeable per se on, and payable out of, the proceeds of sale of real property. In view of this latter rule, it is understandable that the period for an action on a judgment has since 1833 been the same as that for an action relating to land. Actions on a judgment are, however, nowadays very rare indeed and we do not think that the special provision for judgments should be preserved.

4.14 The authorities show that section 2(4) has caused difficulties in practice, because it has been held apt to bar certain (though not all) forms of execution. We think that the law of limitation of actions ought not to interfere with the rules in relation to execution, which currently provide for a period for issue of a writ of execution of six years, which may be extended with the leave of the court. We think that provisions of this kind are the appropriate method of dealing with execution and that they could, if necessary, be extended to cover those methods of execution which, because they are not caught by the current rule, are subject to the twelve-year period.”

The authorities referred to in the footnote to para 4.14 include W T Lamb & Sons v Rider [1948] 2 All ER 402, [1948] 2 KB 331. The importance of the paragraph is not just that it draws attention to the reasoning in the Lamb case. What it also does is to propose a statutory compromise. All forms of execution were to be removed from the sphere of limitation and instead made subject to a discretionary bar after six years. There would then be no need for the special limitation period of 12 years for bringing suit on a judgment. It was in the light of that proposal that Parliament passed the Limitation Amendment Act 1980, which was in turn consolidated in the consolidation Act of that year.

What is the consequence? It has long been a rule of construction that when Parliament uses a word or term, the meaning of which has been the subject of judicial ruling in the same or similar context, then it may be presumed that the word or term was intended to bear the same meaning: see Barras v Aberdeen Steam Trawling and Fishing Co Ltd [1933] AC 402 at 411, [1933] All ER Rep 52 at 55, and Bennion Statutory Interpretation (3rd edn, 1997) p 460. It is ironic that one of the decisions often cited as authority for this principle is the judgment of Wills J in Jay v Johnstone [1893] 1 QB 25 at 29. The rule, like other rules of construction, is not in any way conclusive. It is an aid: no more. But in the present case it is entitled to great weight, since the suspect reasoning of Scott LJ in the Lamb case must have been taken by Parliament to represent the existing law if only because it is indorsed by the distinguished members of the Law Reform Committee who signed the final report, including the chairman Orr LJ, and the future Lord Griffiths, Lord Bingham and Hirst LJ

But the matter goes further than that. In Stubbings v Webb [1993] 1 All ER 322, [1993] AC 498 the question before the House was whether a claim for damages for indecent assault was a claim for personal injuries within the meaning of s 11(1) of the Limitation Act 1980, thereby reducing the limitation period from six years to three. Lord Griffiths, in giving the leading speech, held that it was clear beyond peradventure that the intention of Parliament was to give effect to the recommendations of the committee under Tucker LJ, and that therefore the new limitation period, first introduced by s 2(1) of the 1954 Act, was not to apply to actions for trespass to the person, including indecent assault. In support of this approach Lord Griffiths referred to what had been said by Mr John Peyton (as he then was) in introducing the second reading of the Bill.

There is a close parallel with the Limitation Amendment Act 1980. For Lord Hailsham LC in introducing the second reading of that Bill said: (400 HL Official Report (5th series) col 1218, 25 June 1979)

“But I had better come immediately to the point and start explaining what the Bill is really about. It derives, as I have indicated, from the report of the Law Reform Committee which I initiated in 1971 and which delivered its report to my then successor — and present predecessor — significantly, just after the expiry of the statutory six years in September 1977. The Bill brings into effect almost all the recommendations of that committee.”

Since the point on the Law Reform Committee report only arose at a late stage, Mr Hockman was invited to make submissions by way of reply in writing. He points out that Lord Hailsham did not refer to all the recommendations of the committee, but almost all the recommendations. Similarly Sir Ian Percival QC, S-G in introducing the Bill into the House of Commons referred to the Explanatory and Financial Memorandum, which in turn referred to the Bill as implementing most of the recommendations of the Committee’s Report.

For myself I have, like Lord Griffiths in Stubbings v Webb [1993] 1 All ER 322, [1993] AC 498, no doubt that in reducing the limitation period from 12 years to six, Parliament was intending to give effect to the package of recommendations in paras 4.12-4.16 of the Law Reform Committee’s final report.

Mr Hockman in his written submissions argues that, even so, the recommendations of the committee are far from clear. What the committee seems to have contemplated was some future change in the rules of court so as to put garnishee orders and charging orders on the same footing as fi fa. Since that has not yet been done, those means of execution are still covered by s 24(1) of the Limitation Act 1980.

I do not accept this argument. The question in the end is what Parliament meant by the word “action” in s 24(1) of the Act as extended by the definition in s 38(1). In answering that question, the help to be gained from the immediately preceding history is even stronger in this case than it was in Stubbings v Webb [1993] 1 All ER 322, [1993] AC 498. For in that case there was a tension between two rules of construction. On the one hand there was the help to be gained from the Law Reform Committee report. On the other hand there was the presumption that Parliament intended to give statutory effect to the decision of the Court of Appeal in Letang v Cooper [1964] 2 All ER 929, [1965] 1 QB 232 in which it had been held that the predecessor of s 11(1) did indeed apply to actions of trespass to the person. In the present case both rules of construction pull in the same direction. Parliament having given its blessing to W T Lamb & Sons v Rider [1948] 2 All ER 402, [1948] 2 KB 331, it is now too late for your Lordships to hold that its reasoning is erroneous.

Finally Mr Hockman argued that it would be a reductio ad absurdum of statutory construction if your Lordships were to disapprove the reasoning in the Lamb case, and at the same time hold that it is now the law by virtue of its subsequent adoption by Parliament. But there is nothing new in this. It is Parliament’s understanding of the existing law when enacting the Limitation Amendment Act 1980 that matters, not what the law is subsequently shown to have been. As Lord Simon of Glaisdale said in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] 1 All ER 810 at 845, [1975] AC 591 at 648:

“Once it is accepted that the purpose of ascertainment of the antecedent defect in the law is to interpret Parliament’s intention, it must follow that it is Parliament’s understanding of that law as evincing such a defect which is relevant, not what the law is subsequently declared to be.”

If common error can make the law, so can parliamentary error.

For all these reasons I would hold that the first question must be answered in favour of the plaintiffs. “Action” in s 24(1) means a fresh action, and does not include proceedings by way of execution. It is unfortunate that the decisive point in the case did not emerge until the very end of the hearing. But having considered the point in the light of Mr Hockman’s written submissions, I am not left in any doubt as to the correct answer. I would therefore uphold the Court of Appeal on the first point, albeit for different reasons.

With regret, however, I cannot agree with the Court of Appeal on the second question. There would seem to be no reason why the relevant words in s 24(2) “no arrears of interest … shall be recovered” should not be given their ordinary meaning, so as to bar execution after six years in respect of all judgments. It is what the words say. “Recovered” has a broad meaning. It is not confined to recovery by fresh action.

But the Court of Appeal has held that the limitation to six years’ interest on judgments applies only in a case of actions on judgments, and not to execution of judgments generally. In support of this construction, the Court of Appeal relied strongly on the fact that sub-ss (1) and (2) were part of the same sentence, joined only by a comma, when they were enacted as s 2(4) of the 1939 Act. If the first half of the sentence is confined to actions on judgments, Parliament must have intended that the second half of the sentence should be similarly confined. But in my view this does not follow as a matter of language. “Any judgment” in the first half of the sentence means, quite literally, any judgment. There is no warrant for limiting “interest in respect of any judgment debt” in the second half of the sentence to interest in respect of a judgment in an action on a judgment, even if one could think of any good reason why Parliament should so have provided.

Nor is the Court of Appeal’s reasoning supported by the legislative history. If it is legitimate to go back to the 1939 Act in order to construe s 24(2) of the 1980 Act, then it is equally legitimate to go back to the 1833 Act, where, as has already been seen, the provisions which are now contained in s 24(1) and (2) were in separate sections, namely ss 40 and 42. Section 42 was a freestanding provision which limited the recovery of interest to a period of six years from when it became due. The provision was later applied to judgment debts carrying interest under s 17 of the Judgment Acts 1838.

So as to the second question I prefer the decision of Tuckey J, who held that s 24(2) limits recovery by way of execution on all judgments to a period of six years, including the judgment in this case. This makes it necessary to consider a third question, which did not arise for decision in the Court of Appeal. In the event of the plaintiffs failing on either of the two main issues, they argued that the time limit should be extended by virtue of s 32(1) of the 1980 Act. That subsection provides:

“Subject to subsection (3) below, where in the case of any action for which a period of limitation is prescribed by this Act, either -- (a) the action is based upon the fraud of the defendant; or (b) any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant; or (c) the action is for relief from the consequences of a mistake; the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.”

The plaintiffs assert that a fact relevant to their right to recover interest was fraudulently or deliberately concealed by the defendant, that fact being his own whereabouts, and the whereabouts of his assets. Tuckey J dealt with the point as follows:

“But on my reading of s 32 this point does not get started because s 32 only applies to ‘a period of limitation prescribed’ for ‘any action’. The recovery of interest on a judgment debt is not in my judgment an action. I think the terms of the section make this plain so s 32 does not apply to s 24(2) and therefore the application which is now made to me does not get off the ground.”

I agree with Tuckey J. I find great difficulty in applying the language of s 32 to the time limit prescribed by s 24(2). The recovery of interest by way of execution on a judgment is not a “right of action” within the meaning of s 32(1)(b). Even if it were, I doubt whether the defendant’s concealment of himself or his assets would be the concealment of a fact relevant to such a right of action.

On the second question therefore I would allow the appeal and restore the judgment of Tuckey J. But on the first question, on which Tuckey J and the Court of Appeal were in agreement, I would dismiss the appeal.

It was common ground that in the event of the House deciding the first question in favour of the plaintiffs and the second question in favour of the defendant, the amount overpaid by the defendant is £39,777748. There will be an order for repayment of that amount, together with interest to be assessed by the master, if not agreed. The Mareva injunction dated 10 July 1992, the charging order dated 29 September 1992 and the order for possession dated 28 January 1994 should all be discharged or set aside.

JUDGMENT 3:
LORD NOLAN. My Lords, I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend Lord Lloyd of Berwick. For the reasons which he has given, I too would dismiss the appeal on the first question and I would allow the appeal and restore the judgment of Tuckey J on the second question.

JUDGMENT 4:
LORD HOFFMANN. My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Lloyd of Berwick. For the reasons he has given, I too, would dismiss the appeal on the first question and I would allow the appeal and restore the judgment of Tuckey J on the second question.

JUDGMENT 5:
LORD HOPE OF CRAIGHEAD. My Lords, I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend Lord Lloyd of Berwick. For the reasons which he has given I too would dismiss the appeal on the first question and I would allow the appeal and restore the judgment of Tuckey J on the second question.

DISPOSITION:
Appeal allowed in part.