27 May 2016

High Court determines limit of interest claims for enforcement of Financial Remedy orders

The long-standing question of whether interest can be recovered in enforcement applications (under the Matrimonial Causes Act 1973) for a period longer than the six years defined in the Limitation Act 1980 appears to have been settled in Mann v Mann [2016] EWHC 314.

In a monstrously long judgment (some 63 pages and 189 paragraphs) Roberts J dissects the parties’ long and complex forensic history and at para 130 onwards considers the question of interest. One wonders whether the rash of such long judgments emanating from the High Court is a product of over work. It brings to mind the, much attributed, quip: ‘If I had more time, I would have written a shorter letter.’ (Cicero? Twain? Franklin?)

Academic and legal opinion was divided over whether MCA enforcement applications were a special category of actions not subject to the six year limit on claiming interest: cf Rayden & Jackson and The Family Court Practice taking one view, Jackson’s Matrimonial Finance the other.

Mrs Justice Roberts determined that MCA enforcement applications are not actions that escape (pursuant to the allowance for special schemes and other enactments per s.39 LA 1980) the statutory six year limit. If they do not escape, they are subject to s.24(2). Section 24 of the Limitation Act 1980 provides as follows:


(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.”

Roberts J states:

“[134] The seminal authority in relation to s 24 of the Limitation Act 1980 is Lowsley and Another v Forbes (t/a L E Design Services) [1999] 1 AC 329, [1998] 3 All ER 897. That case established that the word ‘action’ in s 24(1) of the 1980 Act meant a fresh action and did not include enforcement proceedings per se. Accordingly, the section did not operate so as to prevent a judgment creditor from enforcing a judgment after six years but precluded the bringing of a fresh action on the judgment. However, the House of Lords held that there was no reason why the words “no arrears of interest …. shall be recovered” in s 24(2 should not be given their ordinary meaning so as to bar execution after six years whilst limiting recovery of interest to a six year period.”

It is clear Roberts J found succour in her decision from the ongoing reiteration in the High Court and above that the Family Division is subject to the same legal principles as the other divisions [see e.g. Imerman and Prest].

Practice Notes:

Ensure clients are warned when orders capable of enforcement are made that they must not sit on their hands. Unless and until the Court of Appeal rule otherwise, it is difficult to see courts taking any view other than that of Roberts J in Mann v Mann. Experience tells us that clients waiting longer than six years to enforce is a relatively frequent occurrence. Clients must understand if they wait longer than six years, the quantum of their claim for interest will be limited.

Duncan Maxwell-Stewart