The High Court dismissed a bankruptcy summons issued by Greene King Brewing and Retailing Limited against Brian Baker after finding that an issue over the limitation period required a trial. The judge made no finding on whether the debt was statute-barred and reserved any consequential orders, including costs, for a later hearing.
The judgment, delivered by Ms Justice Pilkington on 8 April 2020, concerned an application to dismiss a summons issued on 22 October 2018. The creditor also sought leave to issue a fresh summons in almost identical terms. The judge said she would deal with that application and the dismissal application together, and indicated she would grant leave to issue a fresh summons to the extent that leave was required.
The debt arose from a UK judgment obtained by the creditor on 10 August 2004. A European Enforcement Order was obtained on 2 June 2011, and an Order of Fieri Facias issued in Ireland on 16 June 2012. A registration certificate showed the judgment entry date as 16 January 2012. Baker argued that the debt was statute-barred and raised an issue about the dates and the Irish enforcement order.
The creditor submitted that a bankruptcy summons is a process of execution, rather than an action upon a judgment, and so is not caught by the 12-year limit in section 11(6)(a) of the Statute of Limitations Act 1957. The judge reviewed Irish and UK authorities addressing the distinction between an action on a judgment and steps to enforce one. She also concluded that no issue arose from the registration of the Fieri Facias order.
Under section 8(6) of the Bankruptcy Act 1988, a summons must be dismissed if the court is satisfied that an issue would arise for trial. The judge applied the test that the debtor must raise a real and substantial issue with some prospect of success; a bare assertion of a defence is insufficient.
She found that the limitation question met that threshold, including whether the Supreme Court’s treatment of reasoning in an earlier enforcement case applied to these facts. She expressly declined to decide the merits. The summons was dismissed under section 8(6)(b), and the parties were to be heard on any consequential or other orders, including costs.