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Case Information
Filed
2024-11-12
Docket
69 entries
Disposition
NA
Parties
Plaintiff
Gh
Defendant
H
Lawyers
Docket Entries
- This matter comes back before me in circumstances where the Wife obtained an interim charging order on 22 April 2024. At the hearing on 30 October 2024, on the Wife's application, I decided to make that order final.
- In the course of reaching my decision, and following the hearing prior to approving the sealing of an order, I identified three issues which struck me as requiring fuller reasons. These concerned:
- At the hearing, I gave brief oral reasons for my decision, while indicating that, in certain respects, I would give more detailed reasons in writing. I set out below those reasons.
- On 10 December 2018, Roberts J made a final order (the 'Roberts J Principal Order') following financial proceedings under s.23 of the Matrimonial Causes Act 1973 (the '1973 Act'). The order was headed: 'In the Family Court sitting at the Royal Courts of Justice'. Among other matters, that order dealt with certain properties belonging to the parties defined as 'Flat 5A' and 'Flat 5D'. So far as material for present purposes, that order included the following:
- Under the Roberts J Principal Order, payment of the lump sum of £1.1 million due on 19 June 2023 (the 'Lump Sum') was secured by a mortgage over Flat 5A which is the Husband's home. Following non-payment of the Lump Sum by the due date, there was correspondence between the parties, and then on 15 August 2023 the Wife issued a claim for possession of Flat 5A, in reliance on the mortgage. On 6 October 2023, DJ Sterlini sitting at the County Court at Clerkenwell and Shoreditch, ordered the Husband to give the Wife possession of Flat 5A on or before 20 October 2023, and gave judgment in the sum of £1.1 million. The Husband sought, but was refused, permission to appeal that order, and has now abandoned any further attempt to obtain such permission to appeal.
- Meanwhile, on 3 October 2023, the Husband issued an application to vary the date for payment of the Lump Sum to 30 June 2024. Subsequently, that application was amended to seek an extension of the date for payment of the Lump Sum to 30 June 2025. The matter was listed before me for directions on 27 November 2023. At a further hearing on 7 December 2023, I dismissed the application: [2023] EWFC 235.
- On 9 January 2024, the Wife made an application "for an order for such method of enforcement as the court may consider appropriate", pursuant to FPR 33.3(2)(b). That application was issued by the court on 31 January 2024, but through an error the standard directions, envisaged by FPR 33.3(3), were not made. Rather, a hearing was fixed for 22 April 2024, without requiring the Husband to complete a financial statement or produce any documents.
- On 17 April 2024, the Husband sought to vacate the hearing fixed for 22 April 2024 on health grounds. I rejected that application. On 18 April 2024, the Husband served notice that he would now be acting in person. However, he failed to attend the hearing on 22 April 2024, saying he was at a hospital.
- On 22 April 2024, I made an interim charging order, charging the interest of the Husband in Flat 5A, in the sum of £159,244.10. This sum did not include the Lump Sum (which, as explained above, was already secured by a mortgage over Flat 5A), but was made up of interest on the Lump Sum; costs orders which had gone unsatisfied; interest; and the Wife's costs to date of the enforcement application.
- My order directed that the application would be listed for a further hearing before me on the first available date after 20 May 2024. In the usual way, I directed that the Husband and any other relevant persons be served with the order, and that if the Husband or any other person objected to the court making a final order they should file evidence at least 7 days before the hearing. In the event, no evidence was served by any person.
- As I have already indicated, at the hearing I was satisfied in all the circumstances that I should make a final charging order.
- As set out at paragraph 4 above, by agreement between the parties and by order of the court, the periodical payments for the benefit of the parties' daughter were set at £25,000 per annum, and once she completed her secondary education these were to be "paid as to 1/3 to the applicant and 2/3 directly to [Child]". The parties' daughter completed her secondary education earlier this year, and so this provision now has effect, and part of the arrears which the Wife seeks to charge are arrears payable directly to the parties' daughter.
- I asked Mr Harvey whether I had the power to make a charging order to secure sums payable to a third party. Mr Harvey submitted that it was open to the Wife to obtain a charging order over such sums, even though the sums are not payable to her.
- On the basis of those brief submissions, I accepted the argument that it was within my power to make a charging order in respect of the sums payable to the parties' daughter.
- After the hearing, however, I discovered that there were additional relevant materials which might have a bearing on this question. In particular:
- I am unaware of any other authorities which might cast a light on the question whether a person (A) can apply for a charging order under the 1979 Act against a debtor (B), where B owes money to a third party (C). However, having reflected further on this matter, I remain of the view that I do have the power, on the Wife's application, to grant a charging order in respect of sums which the Husband was ordered to pay to the parties' daughter. I reach that view for the following summary reasons:
- For these expanded reasons, I concluded (and conclude) that the final charging order could extend to cover sums which the Husband has been ordered to pay to the parties' child.
- The sum which I was asked to approve to be included in the final charging order included a little over £2,900 by way of interest due on arrears of spousal maintenance, and a little over £200 due on arrears of child maintenance. I understood, and indeed I explained to the Husband at the hearing, that these sums had accrued (and would continue to accrue) under the 1838 Act. Mr Harvey, Counsel for the Wife, did not suggest otherwise, nor indicate that there was any doubt about the matter.
- After the hearing, however, before I approved the order for sealing, it occurred to me that I might have gone astray in this regard. As noted at paragraph 4 above, the Roberts J Principal Order, under which the arrears had accrued, was headed: 'In the Family Court sitting at the Royal Courts of Justice'. As Mostyn J held in TW & TM (Minors) [2015] EWHC 3054 (Fam), [2016] 2 FLR 1386 at [17]-[19], by reason of s.74(5B) of the County Courts Act 1984 (the '1984 Act') and art.2(4) of the County Courts (Interest on Judgment Debts) Order 1991 (the '1991 Order'), interest does not accrue on orders for periodical payments made in the Family Court. The County Courts (Interest on Judgment Debts) (Amendment) Order 2019 has subsequently amended art.2 of the 1991 Order, but not in a manner which affects the conclusion of Mostyn J.
- I drew my concerns to the attention of Mr Harvey after the hearing. His response, was to the effect that (i) if the Roberts J Principal Order was indeed made in the Family Court, then he accepted that interest would not have accrued on arrears of spousal maintenance or child maintenance, but (ii) having obtained, after the hearing, a clip of applications and orders made in these proceedings, which he now produced, it appeared that the order was in fact made in the Family Division.
- I invited the Husband to make any submissions he wished on this new material. He made no submissions on the factual or legal questions involved.
- The clip of orders tells a confused tale.
- Following the Roberts J Principal Order, the next identifiable order, an order of 28 February 2019, was again headed 'In the High Court of Justice, Family Division' and bore a High Court case number. The order of 23 June 2020 was headed 'In the Family Court' with a Family Court case number; the order of 22 January 2021 was headed 'In the High Court of Justice, Family Division' with a Family Court case number; and, reflecting my understanding of the position at the time, my orders of 27 November and 7 December 2023 were headed 'In the Family Court', with Family Court case numbers.
- It is obviously unsatisfactory that there is uncertainty as to the jurisdiction in which the Roberts J Principal Order was made. As the President's Guidance (Jurisdiction of the Family Court: Allocation of Cases Within the Family Court to High Court Judge Level and Transfer of Cases from the Family Court to the High Court) states at paragraphs 7 and 9:
- Doing the best I can, I conclude that – despite its heading – the Roberts J Principal Order was made in the High Court. Roberts J had transferred the proceedings to the High Court in July 2017, and the proceedings were never re-transferred to the Family Court. The variable headings on the different orders demonstrate, in my judgment, an unfortunate lack of attention to the matter by the parties and their legal representatives, rather than any conscious judicial decision, after July 2017, to re-transfer the proceedings to the Family Court. This means that a number of subsequent orders bore the wrong heading.
- Since the Roberts J Principal Order was made in the High Court, there is then the question whether interest accrued on the unpaid periodical payments. Mr Harvey was unaware of any case which decides this issue. In Mann v Mann (No.2) [2016] EWHC 314 (Fam), [2016] Fam 281, Roberts J identified the issue at [157], but did not need to decide the point.
- The Red Book commentary at paragraph 3.2302[1] states:
- This seems to me to be a mis-reading of the decision in TW & TM (Minors) and of s.23(6) of the 1973 Act.
- There was at one time uncertainty as to whether any judgments in the Family Division fell within the scope of s.17 of the 1838 Act, but that position was no longer tenable following K v K (Divorce Costs: Interest) [1977] Fam 39 (Denning MR at 49B-C; Stephenson LJ at 52H) – as recognised in both Preston v Preston and H v H.
- In my judgment, the position now is straightforward: the Roberts J Principal Order, made by a judge sitting in the Family Division of the High Court, requiring the Husband to make certain periodical payments to the Wife, and to their child, gave rise to judgment debts within the meaning of the 1838 Act. When those sums fell due but were not paid, interest began to accrue at 8% per annum under s.17 of the 1838 Act.
- The Husband invited me to exercise my discretion to waive any interest that had accrued on the outstanding spousal and child maintenance payments, but I decline to do so. The Wife has been kept out of the sums to which she is entitled, by the Husband, for no good reason. In the circumstances of the case overall (which I consider further at paragraphs 66 to 69 below) I consider the fair outcome is that the Husband should be liable for interest, and the final charging order should reflect that.
- For these reasons, the final charging order includes a sum representing interest on the periodical payments.
- The Wife sought her costs of the charging order application, in the sum of £23,165 plus VAT. However, it occurred to me that this raised the question whether, by reason of FPR 28.2, the Wife was limited to recovering fixed costs of just £110.
- Shortly before the hearing, I flagged this issue with Mr Harvey so that he could consider the issues raised by this point. At the hearing, Mr Harvey told me that this was the first occasion on which he could recall such a point being taken. His brief researches before the hearing had turned up no authority on the point.
- FPR 28.1 provides that "The court may at any time make such order as to costs as it thinks just". FPR 28.2 provides that, subject to certain modifications which are not relevant here, "Subject to rule 28.3, Parts 44 (except rules 44.2(2) and (3) and 44.10(2) and (3), 46 and 47 and rule 45.8 of the CPR apply to costs in proceedings…". FPR 28.3 does not apply to enforcement proceedings.
- Part 45 of the Civil Procedure Rules provides for a regime of fixed costs. Prior to the entry into force of the Civil Procedure (Amendment No.2) Rules 2023 on 1 October 2023, CPR 45.8, to which FPR 28.2 refers, provided:
- So far as material, Table 5 provided:
- Table 4, to which CPR 45.8 referred, provided:
- On 1 October 2023, the Civil Procedure (Amendment No.2) Rules 2023 came into force. These contain transitional provisions in rule 2:
- I understand the effect of sub-rule 2(3) ("This rule does not apply…") to be that, for those amendments which are covered by that sub-rule, the amendments take effect from 1 October 2023 – even where the proceedings were issued earlier.
- Within the amendments referred to in sub-rule 2(3) are those in "Section II of Part 45 in Schedule 3 to these Rules". Section II of (new) Part 45 deals with 'Commencement, Entry of Judgment and Enforcement'. It includes rules numbered CPR 45.16 to CPR 45.23. (New) CPR 45.23 is in identical terms to (old) CPR 45.8, save that it cross-refers to (new) Table 7, in identical terms to (old) Table 5, and to (new) Table 6, in identical terms to (old) Table 4.
- In Section I of Part 45 in Schedule 3 there is a new CPR 45.8. This deals with the costs of pre-action and interim applications in cases covered by Section VI (fixed costs in the fast track), Section VII (fixed costs in the intermediate track), or Section VIII (claims for noise induced hearing loss). None of this appears to have anything to do with family proceedings.
- The upshot is that FPR 28.2 continues to provide that CPR 45.8 applies to costs of family proceedings. However:
- Mr Harvey argued that if (old) CPR 45.8 does not apply to these proceedings because it has been replaced, and (new) CPR 45.8 does not provide for fixed costs on enforcement, then I should decide that there is no applicable fixed costs regime, and award costs on usual principles.
- I do not accept that submission. It seems to me that what has happened is that the Family Procedure Rules have not kept pace with amendments to the Civil Procedure Rules. In my judgment, I should read the reference in FPR 28.2 to "rule 45.8 of the CPR" as if it reads, since 1 October 2023, "rule 45.23 of the CPR".
- The next point relates to whether the fixed costs regime applies at all to final charging orders in family proceedings. In other words, is it possible that – although other rows of the table under CPR 45.23 continue to apply in family proceedings – the row relating to final charging orders does not?
- As set out in paragraph 37 above, the fixed sum of £110 is said to be recoverable "on the making of a final charging order under rule 73.10(6A)(a), 73.10(7)(a) or 73.10A(3)(a)". However, in family proceedings, CPR 73 does not have any application: FPR 33.25 provides that where charging orders are sought in family proceedings, FPR 40 applies.
- It is certainly conceivable that the fixed costs rules applicable to final charging orders in civil proceedings do not apply to final charging orders made in family proceedings. In terms of the underlying policy, there are potentially significant differences between enforcement of family financial orders and enforcement of financial orders in the civil sphere. As the Law Commission observed in 2015 in its consultation paper (no.219) 'Enforcement of Family Financial Orders' at para 1.24:
- However, at least until 2016, charging orders in family proceedings followed the same procedure as in civil cases, and the same fixed costs regime applied. Until 1 April 2016, FPR 33.25 provided that CPR 73 applied in family proceedings, with certain modifications. Accordingly, if a final charging order was made in family proceedings, it would be made under what was then CPR 73.8. And, if the order was made by the court simply "confirming that the charge imposed by the interim charging order shall continue, with or without modification" – i.e., under what was then CPR 73.8(2)(a) – then, by virtue of Table 5 under CPR 45.8, the fixed costs regime would apply. This would be the case whether the interim charging order had originally been made following an application under FPR 33.3(2)(a) specifying this method of enforcement, or under FPR 33.3(2)(b), seeking "such method of enforcement as the court may consider appropriate".
- The rules changed with effect from 6 April 2016. The Civil Procedure (Amendment) Rules 2016 took effect then, varying the process for obtaining charging orders in civil cases. On the same day, the Family Procedure (Amendment) Rules 2016 came into effect. These rules inserted a new FPR 40 setting out the procedures to be followed where an application is made for a charging order to enforce a family financial order. The Explanatory Memorandum for these latter Rules stated:
- The Explanatory Memorandum made no reference to any changes to the costs regime applicable to charging orders. It was not suggested that there was an intention to change the costs that would be payable if such an order were made. However, the consequence of the amendments was that although FPR 28.2 continued to refer to CPR 45.8 – and Table 5 under CPR 45.8 continued to refer to "the making of a final charging order" and to refer to all the CPR provisions by which such an order might take place by the court simply "confirming that the charge imposed by the interim charging order shall continue, with or without modification" – none of the references to CPR provisions in Table 5 were apt in the context of family proceedings, where the equivalent rule had become FPR 40.8(2)(a).
- The question is then: was a deliberate decision made in 2016, when amending the Family Procedure Rules to insert FPR 40, to do away with the fixed costs regime applicable to final charging orders? Or, was it an oversight that although (i) FPR 28.2 referred to CPR 45.8 and (ii) Table 5 below CPR 45.8 included fixed costs for final charging orders, the rules to which the relevant row of Table 5 referred, being part of CPR 73 and not part of FPR 40, were no longer apt? In my judgment, the latter conclusion is the correct one. There was no intention, by a side-wind, to do away with the fixed costs regime as it applied to final charging orders.
- Drawing the threads together, in my judgment, the fixed amounts now set out in Tables 6 and 7 under CPR 45.22 and CPR 45.23, apply to the making of a final charging order under FPR 40.8(2)(a).
- I observe in passing that it is not clear to me whether my conclusion matches common practice.
- Next, Mr Harvey argued that, even if the fixed costs regime applied in principle, in any event this rule was subject to the general rule in FPR 28.1: "The court may at any time make such order as it thinks just". I accept that submission, but only so far as it goes.
- I cannot read FPR 28.1 as giving a general, unfettered discretion as to costs, for that would render otiose the remaining rules of FPR 28 (and, in particular, FPR 28.2). Rather, in the context of FPR 28.2 and CPR 45.23, it seems to me that the starting point must be the fixed costs regime provided for in CPR 45.23, but subject to the power of the court to order otherwise.
- In the old Part 45, that power was expressed in CPR 45.1: "This Section sets out the amounts which, unless the court orders otherwise, are to be allowed in respect of legal representatives' charges". In the new Part 45, similar provision is made in CPR 45.16: "In any case to which this Section applies, unless the court orders otherwise, the only costs allowed in respect of a legal representative's charges are those specified in this Section". Neither of those provisions is mentioned in FPR 28.2 as applying in family proceedings, but, by virtue of FPR 28.1, it seems to me that the same principles should nonetheless apply. In my judgment, the court can disapply the fixed costs regime, by ordering otherwise, if the court thinks it just to do so.
- There appears to be limited authority as to the circumstances in which it will be just to 'order otherwise'. In Amber Construction Services Ltd v London Interspace HG Ltd [2007] EWHC 3042 (TCC), proceedings had been brought to enforce an adjudication award. Under CPR 45.3, where the only claim was for a specified sum of money, and the defendant paid the money claimed together with fixed commencement costs within 14 days of being served, the defendant was not liable for any further costs "unless the court orders otherwise". Akenhead J held:
- In Chedington Events Ltd v Brake [2024] EWHC 384 (Ch), [2024] 4 WLR 22, HHJ Matthews cited the judgment of Akenhead J in Amber Construction and continued:
- The 2016 Law Commission Report 'Enforcement of Family Financial Orders' (No. 370) (published after the amendment to the Family Procedure Rules described in paragraph 50 above) considered the application of the fixed costs regime, especially in the context of orders obtained following a general enforcement application (FPR 33.2(b)).
- In my judgment, any decision of the court in family proceedings to 'order otherwise' must be respectful of the policy to which FPR 28.2 and CPR 45.23 give effect. A fixed costs regime ought to provide certainty, and spare the parties the costs of arguing about costs. By fixing those costs at a low level (here, £110), the rule also spares the debtor from incurring further substantial sums – bearing in mind that, in most cases, the debtor will presumably be failing to pay because they are in financial difficulties, rather than because they have disdain for court orders or a desire to be obstructive towards the creditor. A court ought not to be too ready to disapply such a regime.
- Mr Harvey advanced a number of arguments as to why, in the context of family proceedings generally, it would often or usually be just to 'order otherwise'. He noted that what is often sought to be enforced is periodical payments which are continuing to accrue; it is therefore necessary to provide updating evidence which is not generally needed in the context of a charging order for a judgment debt in the civil sphere. He also noted that in family proceedings permission is required if a person seeks to enforce payment of arrears which fell due more than twelve months before proceedings to enforce the payment are begun: s.32 of the 1973 Act. That can have the effect of forcing an applicant's hand, encouraging them to make an application even when in civil proceedings they might be more patient before incurring the costs of applying to enforce.
- It seems to me that these matters can be relevant to the question whether to 'order otherwise', but matters to which I should give only limited weight: I must assume that the usual circumstances of family financial orders were in the draughtsperson's mind when deciding that CPR 45.8 (or, now, CPR 45.23) would apply in family proceedings.
- Mr Harvey also pointed to the conduct of the Husband since the time the interim charging order was made: the Husband did not concede the application; and did not serve any evidence to oppose it. The Wife's solicitors repeatedly wrote to him but – with the exception of providing some dates to avoid for the final hearing – the Husband did not engage in their requests that he explain how and when he would pay the sums he owes. However, these points do not seem to me to support the Wife's case for an 'order otherwise': the Husband's inaction did not increase the Wife's costs, nor, indeed, does such inaction take this case outside the norm for final charging orders.
- Mr Harvey made the point that, since the enforcement application had begun by way of a general enforcement application, the interim charging order had been made following a hearing, and not – as would be usual under CPR 73 or FPR 40.4 – as a without notice application, dealt with by the court on the papers. It seems to me that that is a factor which I can take into account when deciding whether to make an 'order otherwise', but only insofar as costs were incurred up to the making of the interim charging order. Where, as here, events since the making of the interim charging order were essentially as straightforward as they can be in any charging order case – service of the documents on the relevant parties; non-engagement by the debtor, with no evidence served in response; and then a short final hearing – the mere fact that the process began by way of a general enforcement application would not seem to me to disturb the underlying policy of the fixed costs regime, after the interim order was made.
- On the other hand, I considered that Mr Harvey was on rather stronger ground with other submissions which focused specifically on the circumstances of this case.
- I note that Mr Harvey did not advance a case that the Wife needed the money she seeks to obtain via the charging order. Had there been evidence of such need, I can see that this might have been an additional factor of some weight in favour of 'ordering otherwise'.
- In his submissions in response, the Husband objected to this characterisation of his conduct, and said it was inappropriate to criticise him. He said he had acted honourably, he just needed time to pay. He did not think it fair that he was being asked to pay sums, including for the maintenance of his daughter, when his daughter (now aged 19) had not had contact with him for three years. He suggested that it was really the Wife's lawyers driving this enforcement application, and that he objected to paying, indirectly, for their fees. Overall, he submitted that the recoverable costs had been fixed at £110, and that is all that should be awarded.
- Taking all the matters in the round, I considered that the conduct of the Husband, as described at paragraph 66 above, amply justified making an 'order otherwise' to disapply the fixed costs regime. I ordered that the Wife recover her costs of the application, assessed on the indemnity basis. I accepted the submissions of Mr Harvey that the long history of the Husband's obstructive behaviour took this case well outside the norm.
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