The file that reaches new counsel
A consent judgment records terms the parties agreed and the court endorsed under Order XXV of the Civil Procedure Rules, S.I. 71-1. Because nothing was contested, the file that reaches new counsel is often thin: the consent, perhaps a decree, and little record of what was demanded or paid afterwards. Several years may have passed, and the judgment debtor has usually reorganised its affairs in the interval. The judgment itself is sound. The work lies in establishing what can still be done under it, and in what order.
The first question is time. Section 3(3) of the Limitation Act provides that 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 the Civil Procedure Act, Cap. 282 separately bars an order for execution on a fresh application made after twelve years from the date of the decree. In Green Pastures Ltd v The Cooperative Bank Ltd (In Liquidation) [2017] UGHCEBD 26 the Execution and Bailiffs Division read the Limitation Act provision as extending to execution proceedings, treated an application lodged in 2014 on a 1990 decree as a fresh application, since the earlier execution had not been continued, and set the execution aside. The same ruling confined arrears of interest to the six years preceding the application. An inherited judgment is therefore dated before anything else is done, and where the twelve years are close the application is filed before the record is perfected, with the remaining steps taken under it.
Rebuilding the record
The execution file is assembled before any application is filed. It contains the decree as extracted, compared line by line against the terms of the consent; the proof of service of the decree; a schedule of every payment received under it, with the receipts; and the demands made in the interval, with proof of their delivery. Where the decree was never extracted, it is extracted now, and where it was extracted in terms that depart from the consent, an application is made to correct it, because an execution founded on a decree that does not match the judgment is set aside on the first objection the debtor raises.
The schedule of payments matters more than it appears to. A judgment debtor who has paid part of the sum will say so at the show-cause stage and will often overstate what was paid. The decree holder who can produce a receipt for each payment, and the bank statement behind it, closes that line of argument at once. The same schedule fixes the interest calculation, which runs on the reducing balance from the date of each payment and must be presented in a form the Registrar can check.
The applications that follow
Which applications follow depends on what has lapsed. Where the application for execution is made more than a year after the date of the decree, or against the legal representative of the original debtor, Order XXII requires that the judgment debtor be served with notice to show cause why the decree should not be executed, and the application is drawn so that the notice issues with it. At the show-cause hearing the court is entitled to ask why nothing was done sooner, and the affidavit in support answers from the record assembled above, since the court will not accept counsel's recollection in its place.
The mode of execution is chosen on what the debtor holds now, which is often different from what it held when the consent was recorded. Attachment and sale of movable or immovable property, garnishee proceedings against a bank or a trade debtor, and the examination of the judgment debtor as to its means are each available under Order XXII, and the application states the mode and the property or debt against which it is directed. Where the debtor is a company whose assets have moved to a related company since the consent, the examination of its officers comes first, because it supplies the information on which attachment against the transferee can be sought.
The firm's approach
On an inherited judgment the firm produces a written opinion first, in the practitioner form it uses for every dispute, stating whether the judgment is within time, against whom execution lies, under which provisions of the Civil Procedure Act and Order XXII, for what sum, and by which mode. That opinion is the plan of execution, and the client decides on it before any fee is incurred in court. The firm then conducts the execution, including against judgment debtors who have reorganised their assets since the consent was recorded.