A and Z (No 2) (Interim Third Party Debt Order), Re [2026] EWFC 90

[2026] EWFC 90Case No 1759-4307-2483-7653
IN THE FAMILY COURT
Venue SITTING AT THE ROYAL COURTS OF JUSTICE, Royal Courts of Justice, Strand, London, WC2A 2LLDate 29/04/2026
Before
THE HONOURABLE MR JUSTICE MCKENDRICK
Between
AApplicantZRespondentsWINCKWORTH SHERWOOD LLPRespondent(Re A and Z) (No. 2) (Interim Third Party Debt Order)
Mr Geoffrey Kingscote KC (instructed by Vardags) for Applicant for The first respondent did not appearMr Samuel Cuthbert (instructed by Winckworth Sherwood LLP) for Second RespondentHearing Hearing dates: 23 April 2026
Approved Judgment.............................THE HONOURABLE MR JUSTICE MCKENDRICKThis judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

McKendrick J :

[1]These are divorce and financial remedy proceedings involving two spouses, anonymised as A and Z, to protect their private and confidential information.[2]On 16 February 2026 I heard, and later determined applications by the applicant, A, for a legal service payment order (LSPO) and maintenance pending suit (MPS). The court also considered the application by the respondent, Z, to set aside an order providing for alternative service (I went on to set aside that order) and gave directions for a hearing to determine forum conveniens.[3]The judgment arising from that hearing was handed down on 18 March 2026. It is reported at Re A and Z: service out of the jurisdiction; MPS; LSPO) [2026] EWFC 64. On 27 March 2026 the court made detailed orders providing, in summary, that:a. Neither party should take any further steps in any other jurisdiction for dissolution of the marriage, other than a stay;b. The respondent should pay MPS arrears of £36,573, use their best endeavours to secure the rent on the London home until the end of July 2026 and pay maintenance of £13,849 per calendar month from 18 March 2026;c. The respondent should pay legal fees of £175, 000 by 3 April 2026, £125, 000 by 10 April 2026 and thereafter £100,000 per calendar month from 6 April 2026.[4]This payment structure largely followed what was proposed by the respondent’s counsel, Mr Tim Amos KC, who appeared for Z at the hearing on 27 March 2026.[5]Since then, it appears that Z has chosen not to comply with the court’s orders. Z has paid around £5,500 by way of MPS and nothing by way of LSPO. This is in direct contravention of the court’s order. Z was represented through solicitors and leading counsel at both the substantive hearing of the applications and the hearing to determine the contents of the order following the handed down judgment. Z did not seek permission to appeal. Z’s leading counsel submitted I should grant their application for expert evidence and set the matter down for the contested forum hearing. Z appears to have adopted a very different approach to this litigation since. Z’s failure to comply with the orders made, imperils A’s ability to fairly participate in these proceedings. It is a very serious matter.[6]Given the non-payment and the failure to comply with my orders, A applied on 16 April 2026 for an interim third-party debt order. The application was made without notice to Z (and Winckworth Sherwood LLP, Z’s solicitors). I was asked to determine the matter on the papers. The application was directed towards the funds that, it was assumed would be retained by Winckworth Sherwood LLP. The application was made on the correct form – Application for a Third Party Debt Order. It set out that Z owed A, pursuant to my earlier order, £ 450,730.35. It was signed with a statement of truth. No witness statement was filed. A draft order was provided.[7]Upon consideration of the application, I asked Vardags, through my clerk on 16 April 2026 the following:
“McKendrick J notes your without notice application. His Lordship asks: “What money do Winckworth Sherwood owe to Z and/or what money does Winckworth Sherwood hold to the credit of Z? And if the answer is yes, is there evidence?”
[8]The response from Vardags on 16 April 2026 stated:
“[Z] has only provided extremely limited financial information to date (with no supporting documents) and no Forms H have been filed in this matter. We therefore do not have documentary evidence of any funds owed by Winckworth Sherwood to [Z], nor in respect of funds that they hold on credit for [them]. Given the without notice nature of this application, we are not in a position to make enquiries in relation to this.”

The Law

[9]The court has the power to make an interim third party debt order. CPR 72.4 sets this out and states:
“An application for a third party debt order will initially be dealt with by a judge without a hearing.”
CPR 72.4 (2) states:
“(2) The judge may make an interim third party debt order– (a) fixing a hearing to consider whether to make a final third party debt order; and (b) directing that until that hearing the third party must not make any payment which reduces the amount he owes the judgment debtor to less than the amount specified in the order.”
[10]Practice Direction 72 accompanies CPR 72. Paragraph 13 states:
“The court will not grant speculative applications for third party debt orders and will only make an interim third party debt order against a bank or building society if the judgment creditor’s application notice contains evidence to substantiate his belief that the judgment debtor has an account with the bank or building society in question.”
[11]The Court has the power to grant a third party debt order (hereafter TPDO) under CPR 72. Pursuant to CPR 72.8 (6), at the hearing the Court may:(a) make a final third party debt order;(b) discharge the interim third party debt order and dismiss the application;(c) decide any issues in dispute between the parties, or between any of the parties and any other person who has a claim to the money specified in the interim order; or(d) direct a trial of any such issues, and if necessary give directions.[12]The commentary at CPR 72.8.3 reinforces that the word ‘may’ in CPR 72.8 indicates that the court exercises a discretion. This is reflected in Gee on Injunctions, 7th edition at paragraph 5-005that in exercising its discretion to make a final TPDO:
“the making of a third party debt order is a matter of discretion exercised upon the same principles as those which apply to charging orders. Thus, the order will be made unless there are special factors making it inequitable to grant it: Roberts Petroleum Ltd Bernard Kenney Ltd [1983] 1 AC 192”
[13]Per the judgment of the House of Lords in Roberts Petroleum: in exercising its discretion the Court should follow the same principles as apply to charging orders such that it should:(a) take into account all the circumstances of the case, whether they arose before or after the making of the interim order;(b) do equity, so far as possible, to all the various parties involved, that is, the creditor, the debtor, and WS.[14]Moreover, if it can be shown that the third-party respondent would be prejudiced by the making of the order, then the Court will be likely to exercise its discretion against making the order.[15]It is possible for the Court to make TPDOs in respect of solicitor’s client accounts, however it appears to me that such orders are not common and an applicant must show a debt is owed to it by the third-party solicitors. In BHP Billiton Marketing Ag v Tmt Asia Ltd and others [2013] EWHC 4610 (Comm), a third-party debt order sought against Cooke, Young and Keidan LLP was refused by Hamblen J (as he then was) because the judgment creditor was unable to prove that the monies were owed by the solicitors to the judgment debtor. At paragraph 17 it was held:
“there is, in my judgment, a prior question, which is whether the applicant can bring himself within the terms of CPR Part 72. That requires, in the context of this case, showing that there is a debt which is due to the judgment debtor from the relevant third party and it is accepted that this has to be established and proved on the balance of probabilities.”
[16]Conversely, in BCS Corporate Acceptances Ltd and others v Terry [2018] EWHC 2349 (QB), Morris J held that on an application for an interim third party debt order the court was entitled to rely upon evidence that the balance in the client account was free from any claim by the solicitors or otherwise in making a Third Party Debt Order. Such evidence in that case was given in the form of witness statements, see paragraph 75.[17]I can see no reason why these principles should not apply to a judgment debt owing in financial remedy proceedings. It is well known the CPR adds to the procedural code set out in the Family Procedure Rules.

Discussion

[18]With some hesitation, I made the interim third party debt order without notice. I observed the following in recitals to the[19]Having made the interim third party debt order, I listed the matter for an early return date on 23 April 2026. I gave permission for the second respondent, Winckworth Sherwood to file evidence.[20]Unsurprisingly, the second respondent filed evidence. A witness statement of Sarah Ingram, partner, told me the following (WS is a reference to Winckworth Sherwood):a. Longmores initially instructed for the Respondent had around £120,000 on account at the time of WS’ instruction;b. WS were instructed on 06/02/26;c. Longmores sent WS c. £92,722.21 which they had left on account after deducting their final bill;d. WS first bill on 27/02/26 was for £94,344.60 and was settled in the most part by the monies on account leaving a debt of £1,622.39;e. £7,500 was paid into the WS client account for leading counsel to attend the 27/03/26 hearing which was, it is assumed, a fee deemed incurred X days beforehand. To borrow a phrase from BCS Corporate, that money was not “free from any claim”;f. WS raised its second bill of £27,128.50 on 31 March 2026, which then had to be corrected because an error on a disbursement on the bill and reissued on 13 April 2026. It was then dispatched to the Respondent on 13 April 2026. Taking account of the £7,500 it had on account, that leaves £19,628.50 outstanding.g. In total, the Respondent owes WS £21,250.89.[21]Recognising this, Vardags informed Winckworth Sherwood and the court that it did not pursue its application for a TPDO. Vardags asked the court to deal with its other issued application dealing with enforcement of Z’s failure to comply with the order. At the return date both parties sought their costs.[22]After hearing submissions I ordered that A pay two thirds of Winckworth Sherwood’s costs. Their costs were £ 15, 000. I summarily reduced those costs to £ 12, 000. Given A’s impecuniosity, enforcement of this order will await the outcome of the forum hearing. Whilst it is the case that normally an interim third party debt order will be made on the papers without notice, caution should be exercised as the Practice Direction states that speculative applications should not be granted.[23]I well understood A’s application in the context of Z’s decision to ignore my orders. I am very much aware of the difficulties A is faced with without compliance with the MPS or LSPO orders. However, it would be unjust not to have awarded Winckworth Sherwood costs in circumstances where they were made respondent to the application, required to file evidence and attend court in circumstances where the TPDO was not pursued. The without notice application was high risk.[24]Whilst I understand A is placed in a very difficult situation by Z’s actions, applicants for interim orders should note what was said by Morris J in Terry supra at paragraph 71:
“….I consider that there is a duty upon the applicant for an interim third party debt order to provide accurate evidence and that there is a duty of disclosure.”
[25]Z did not attend the hearing and whilst Winckworth Sherwood were in attendance, they were present in their own capacity and I do not believe held instructions from Z.[26]A’s various other D11 applications to deal with the non-compliance with the court’s previous orders are listed for a one day hearing before me on 13 May 2026. I very much hope by then, Z has thought better of their current approach to this litigation.[27]I am very grateful to counsel for their helpful skeletons on this narrow issue and ask them to draft an order.

order

On the morning of 16 April 2026, McKendrick J considered the application of the applicant, from which it appears that: i. on 27 March 2026, McKendrick J made an order (“The Order”) under case number 1759-7634-6599-2554 requiring the respondent to pay money to the applicant; ii. the amount now owing under that order is ££445,447.11 excluding interest and costs as follows: Sums remaining due for payment under the Order £445,312.11 Interest to the date of the date of making the application for a Third Party Debt Order £910.18 Fixed costs to the date of the interim order (position reserved to the date of the hearing) £98.50 TOTAL: £446,455.79 iii. there is a debt due or accruing due by the third party to the respondent. iv. Whereas the court considers an application for an order of this type against a party’s own solicitors is unusual, there appears to be no reason why such an order cannot be made having regard to CPR 72. The applicant will need to set out a detailed skeleton for the hearing mentioned in paragraph 5 below to seek to make good its case, particularly in circumstances where an order of this type against solicitor may inhibit the other side’s access to their solicitors and therefore to legal representation going forward. This must be balanced by the fact the respondent has failed to make payments to permit the applicant’s solicitor to be remunerated, thereby potentially jeopardising their own access to legal advice and representation. v. The court notes that CPR 72.4 (5) mandates that the return order should be not less than 28 days from service of this order, but this is varied by the court pursuant to CPR 3.1, as the circumstances of this application are sufficiently unusual that a period of 28 days to the return date is too long

Cited in 1 later judgment