Rule Against Split Judgment Debt Enforcement

Author: Simon Hill
In: Article Published: Tuesday 27 February 2018

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A judgment creditor holding an unsatisfied judgment debt will naturally want to enforce his judgment debt (money judgment) against the judgment debtor. The law provides a judgment creditor with a range of enforcement options, each with their own advantages and disadvantages, depending on the judgment debtor’s particular financial circumstances. While the judgment creditor may pursue whichever enforcement option he judges most likely to bear fruit, he is not permitted to split the judgment debt and pursue separate enforcement mechanisms upon the parts. In other words, the judgment creditor cannot divide his judgment debt into such amounts as he elects, and then issue several 'executions' (as they were formerly known) thereon.

This article will consider the nature of a judgment debt as a thing in action, and then the law against splitting a judgment debt and pursuing more than one enforcement option (enforcement mechanism) concurrently.

The Judgment Debt

The judgment debt is a type of ‘thing in action’ (formerly called a ‘chose in action’[1]) – an intangible absolute interest. The classic definition[2] of a chose/thing in action was given in Torkington v Magee [1902] 2 KB 427, by the Divisional Court, at 430:

‘”Chose in action” is a known legal expression to describe all personal rights of property which can only be claimed or enforced by action, and not be taking physical possession.

In Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, Lord Hoffman said at 915:

‘…a chose in action is property, something capable of being turned into money. Snell's Equity, 29th ed. (1990), p. 71 defines choses in action as “all personal rights of property which can only be claimed or enforced by action, and not by taking physical possession.”

Attaching to the thing in action, the property, are the remedies. Those remedies may be against more than one person; for instance, where the judgment is against more than one person, the judgment creditor will have only one thing in action – the one judgment debt, but will have remedies against each of the judgment debtors[3].

Unsatisfied Judgment Debt and the Enforcement Mechanisms

Where the judgment debtor fails to pay the judgment sum within the time permitted by the Court for payment (normally 14 days, but sometimes up to 28 days), the judgment creditor will be at liberty to enforce[4] the unsatisfied judgment debt. Within the range of enforcement mechanisms offered by the law, the most commonly used are probably the charging order, the third party debt order and the attachment of earnings order. A judgment creditor might also consider presenting a petition for a bankruptcy/winding up order against a natural person/legal person judgment debtor, as the case may be (though that is not a debt recovery mechanism per se).

While the law offers a range of enforcement mechanisms to the unsatisfied judgment creditor, whether pursuing any of them will produce payment will depend on the judgment debtor’s particular financial circumstances, and in particular, the nature and type of assets within his estate. For instance, where the judgment debtor holds no land/real property, or at least none with actual or prospective net equity (after redemption of any existing legal charges), then obtaining a security for payment of the unsatisfied judgment debt by obtaining a charging order will not be an available/worthwhile option.

Enforcement on Whole Judgment Debt

If there is more than one enforcement mechanism available and viable, then the judgment creditor must weigh up the advantages and disadvantages of each, and make his election as to which to pursue. However the judgment creditor has only one judgment debt. What a judgment creditor is not permitted to do is split up his unsatisfied judgment debt up into different parts and issue separate enforcement mechanisms upon the different parts concurrently. Vaughan Williams LJ in Forster v Baker [1910] 2 KB 636 said, at 641:

A judgment creditor could not before the coming into operation of the Judicature Act, 1873, have issued a series of small executions upon his judgment making in the whole the total amount of the judgment debt; he had only one judgment, and upon that judgment he could issue only one execution; he has only the same right now.

In the same vein, Fletcher Moulton LJ in Forster said, at 642:

‘the original judgment creditor cannot divide his judgment and issue several executions upon it for the amounts into which he chooses to divide it…’

In Rothschild v Fisher [1920] 2 K.B. 243 ('Rothschild'), Scrutton LJ said at 255:

‘…I am not aware of any authority for splitting up a judgment debt which on the face of it is for one sum, and saying that part of it can be traced for a particular cause, and another part of it for another cause, and that as to the first part execution on the judgment may be given in one way, and as to the second part execution shall be restricted to another way. Forster v. Baker…appears definitely to be against the idea that a judgment may be split up, and various remedies in respect of different parts of it given to various assignees.’

Assignment Not Device for Sidestepping Rule

As indicated by the end to the above passage of Scrutton LJ in Rothschild, this inability to split up a judgment debt and enforce each divided part separately, cannot be sidestepped using assignment[5] .

The Supreme Court of Judicature Act 1873 (the ‘Judicature Act 1873’) introduced a new form of assignment into law; section 25(6)[6] created a statutory mechanism for effecting the assignment at law of a thing in action - the legal title to the absolute interest in the thing in action became assignable. This provision in the Judicature Act 1873 was later re-enacted in section 136 of the Law of Property Act 1925, which remains in force today[7].

At first instance, in Foster, Bray J held, at 640-641, that:

‘…there cannot be an absolute assignment within s. 25, sub-s. 6, of part of a debt or legal chose in action, and inasmuch as a judgment debt is a debt or legal chose in action, it follows that part of a judgment debt cannot be the subject of an assignment within the section.’

The appeal against Bray J’s decision failed; however the two Court of Appeal judges who gave reasoned judgments, expressed themselves somewhat differently. Seemingly, it was held that the judgment debt can be split and part of the judgment debt assigned at law to an assignee, but the assignee cannot enforce upon the part of the judgment debt that assignee receives. 

Vaughan Williams LJ in Forster said, at 641

'And if a judgment creditor assigned part of his judgment debt, he could not then, and cannot now, give to his assignee any better right than he had himself. The result is, therefore, that the assignee of part of a judgment debt is not in a position to issue execution upon it, which is what the plaintiff in the issue wishes to do in the present case.'

Fletcher Moulton LJ in Forster agreed with Vaughan Williams LJ's judgment, adding, at 642:

'Confining myself to that which is necessary for my decision in the present case, I am of opinion that the assignee of part of a judgment debt never has been, and still is not, in the position of an execution creditor with regard to that part; the original judgment creditor cannot divide his judgment and issue several executions upon it for the amounts into which he chooses to divide it, and he cannot assign to another a power which he does not himself possess. Even on the broadest construction that can be given to the language of s. 25, sub-s.6, of the Judicature Act, 1873, the remedy of which the appellant seeks to avail herself is not a legal remedy within the meaning of that sub-section.'

Whether this nuanced structural difference remains good law or not (see below and Re Steel Wing Company [1921] 1 Ch 349), in practical terms, the effect will be the same. The apparent assignee of part of the split judgment debt will have no mechanism to enforce what he/she has received. From the debtor's vantage point, the law will continue to protect him/her from one debt he owes, fragmenting into multplie small debts, multiplying the enforcement processes he might face (and corresponding burden); whether Fletcher Moulton LJ in Vaughan Williams LJ in Forster is good law or not, the law will prevent any risk of a deluge of enforcement processes against the debtor.  

Debts Generally

On debts generally, it is now settled that section 136 of the Law of Property Act 1925 cannot be used to effect an assignment at law of a definite part of a debt; only a whole debt can be assigned at law. In Chitty on Contracts, 32nd Ed, it explains the rationale, at paragraph 19-015, that:

‘This is because it would increase the burden on the debtor if the creditor were allowed to split up the debt into as many separate causes of action as he thought fit; and also because conflicting decisions might result if the existence or amount of the debt was in dispute.

In Raiffeisen Zentralbank Sterreich AG v An Feng Steel Co. Limited [2001] EWCA CIV 68 (‘Raiffeisen’), Mance LJ in, at 75:

‘...s.136 is not, in my judgment, applicable on the facts of this case. First …there was here no assignment of the whole benefit of the insurance cover, and so, in the terms of s.136, no absolute assignment of this nature.’

Assignment of the Judgment Debt at Law and in Equity

In the event that the whole of the judgment debt is assigned at law, the assignee is in no better position that the original judgment creditor/assignor [8].

In equity, a judgment debt, or part of a judgment debt can be assigned. Mance LJ in Raiffeisen, said:[9]

An equitable assignment may relate either to the whole interest in a thing in action or to a partial interest’

SIMON HILL © 2018

BARRISTER

33 BEDFORD ROW 

NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.


[1] ‘Chose’ just meant ‘thing’, so the language is now clearer by the modern use of the phrase ‘thing in action’, introduced by the Law of Property Act 1925.

[2] The Divisional Court’s decision in Torkington was overturned on appeal by the Court of Appeal, Torkington v Magee [1903] 1 K.B. 644, but on other grounds, without any view bring expressed by the Court of Appeal about this definition. They are intangible personal property – incorporeal in nature – a legal tie (vinculum juris) existing and stretching between two persons, deemed to be an interest recognised by the law. At one end the debtor (the person holding the burden of the thing), and the other end is the creditor (the person holding the benefit of the thing). As personal property, the ‘thing in action’ is an absolute interest, to which title is held by, in the case of a judgment debt, the judgment creditor.

[3] Lord Hoffman said, in Investors Compensation Scheme Ltd v West Bromwich Building Society (No.1) [1998] 1 WLR 896, at 915:

‘…what is assignable is the debt or other personal right of property. It is recoverable by action, but what is assigned is the chose, the thing, the debt or damages to which the assignor is entitled. The existence of a remedy or remedies is an essential condition for the existence of the chose in action but that does not mean that the remedies are property in themselves, capable of assignment separately from the chose. So, for example, there may be joint and several liability; a remedy for the recovery of a debt or damages may be available against more than one person. But this does not mean that there is more than one chose in action. The assignee either acquires the right to the money (or part of the money) or he does not. If he does, he necessarily acquires whatever remedies are available to recover the money or the part which has been assigned to him.’

[4] Enforcement is a process by which the Court assists the judgment creditor to extract from the judgment debtor, the sum of money that the judgment debtor has been held to owe the judgment creditor.

[5] As to what an assignment is - Guest on The Law of Assignment (2nd Ed 2015) provide a definition at paragraph 1-01: ‘Assignment may be defined as the transfer from one person (the assignor) to another (the assignee) of the whole or part of an existing right or interest in intangible property presently owned by the assignor.’ Interestingly, the word ‘assign’ might be given an expanded construction where to exclude the process of joint tenant release from the curtilage of ‘assign’ would create an anomalous applicable of a statutory prohibition – see Burton v Camden LBC [2002] 2 AC 399

[6] Section 25(6) of the Supreme Court of Judicature 1873 read:

Assignment of debts and chooses in action.

Any absolute assignment, by writing under the hand of the assignor (not purporting to be by way of charge only), of any debt or other legal chose in action, of which express notice in writing shall have been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be, and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed,) to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the concurrence of the assignor:

Provided always, that if the debtor, trustee, or other person liable in respect of such debt or chose in action shall have had notice that such assignment is disputed by the assignor or any one claiming under him, or of any other opposing or conflicting claims to such debt or chose in action, he shall be entitled, if he think fit, to call upon the several persons making claim thereto to interplead concerning the same, or he may, if he think fit, pay the same into the High Court of Justice under and in conformity with the provisions of the Acts for the relief of trustees.’ [Author’s bold]

[7] Section 136(1) of the Law of Property Act 1925 reads:

‘Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

(a) the legal right to such debt or thing in action;

(b) all legal and other remedies for the same; and

(c) the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice—

(a) that the assignment is disputed by the assignor or any person claiming under him; or

(b) of any other opposing or conflicting claims to such debt or thing in action; he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the Trustee Act, 1925.’

[8] In Crooks v Newdigate Properties Ltd [2009] C.P. Rep 34, David Richards J sitting in the Court of Appeal, and with whom the other LJs agreed, acknowledged the ability to assign a judgment debt. On the facts of Crooks, one phase in series of events involved the judgment creditor Crooks assigning the benefit of the judgment debt to and assignee M. David Richard J said at paragraph 22 ‘…even if there were a debt to assign, the assignment of a debt does not change the character of the debt. [Original judgment debtor] remained liable after the assignment as he was before, under a judgment in respect of a joint liability in tort. Payments by the other joint tortfeasors necessarily reduced or extinguished [original judgment debtor’s] liability. The assignee can in this respect be in no better position than the assignor. An assignment of a debt, including a judgment debt, is subject to equities, including the right of the debtor to raise defences to enforcement arising out of the subject matter of the assignment. This includes the right to require credit to be given for sums paid in or towards satisfaction of the underlying liability. This would be so even if the payments were made not only after the assignment but after notice of the assignment had been given to the debtor…. The creditor cannot deprive the debtor of this right by an agreement with the assignee to which the debtor is not a party.’

[9] The full passage from Mance LJ in Raiffeisen Zentralbank Sterreich AG v An Feng Steel Co. Limited [2001] EWCA CIV 68 at 60 was:

‘An equitable assignment may relate either to the whole interest in a thing in action or to a partial interest: see Chitty on Contracts (28 th Ed.) Vol. 1 paras. 20–037–040. The Evelpidis Era (cited below) is an example of the latter. There is a rule of practice that the assignor should be joined, but that rule will not be insisted upon where there is no need, in particular if there is no risk of a separate claim by the assignor: Central Insurance Co. Ltd. v. Seacalf Shipping Corp. (The Aiolos) [1983] 2 Ll.R. 25 , 33–34; Weddell v. J.A. Pearce & Major [1988] Ch. 26 , 40–41; and a decision of my own in Sim Swee Joo Shipping Snd Bhd v. Shirlstar Container Transport Ltd. (Com. Ct., 17th February 1994) . The case for joinder will obviously be strongest, if there is an issue between assignor and assignee regarding the existence of an assignment or the equitable assignee has acquired only part of a chose in action…’