A stay of enforcement or execution of a judgment does not preclude a judgment creditor from applying to have a judgment debtor attend court to provide information about his means.

The above clarification was provided by the court in Sucden Financial Ltd v Fluxo-Cane Overseas Ltd and Garcia. The claimant obtained summary judgment against Garcia with enforcement to be stayed until a given date to enable him to seek leave to appeal. The claimant obtained, within the stay period, an order to have Garcia attend court to provide information about his means to enable it, as judgment creditor, to enforce the judgment against him pursuant to Part 71 of the Civil Procedure Rules (Part 71). Garcia applied to have that order set aside as being contrary to the order made on judgment staying enforcement.

The court dismissed the application holding that the express purpose of Part 71 is to enable a judgment creditor to enforce a judgment. That means that it is an order that puts the judgment creditor into a position where he might thereafter be able to enforce the judgment but it is not part and parcel of the process of enforcement as, for example, a garnishee order is. The fact that there is a penal notice on the order which itself can be enforced does not mean the order itself is part of the enforcement process. It is anterior to it.

Additionally, the court held, contrary to Garcia's argument, that the claimant was a judgment creditor despite the order giving judgment being subject to a stay pending leave to appeal. A judgment creditor can mean a person who has obtained a judgment or a person who is entitled to enforce a judgment. The claimant here fell into the former category.

Things to consider

If a judgment has been awarded and information needs to be obtained regarding the judgment debtor's assets, an application for an order under Part 71 should be made, and as soon as possible where there is fear of dissipation of assets, regardless of whether a stay of enforcement may have been imposed for a period of time.