Walton & Anor v Allman [2015] EWHC 3325 (Ch)

The County Court sitting at Chesterfield Claim No:Case No 1UD58766High Court Chancery Appeal No:CH/2015/0272[2015] EWHC 3325 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, 7 Rolls Buildings, Fetter Lane, LondonDate 18 November 2015
EC4A 1NL
Before
MR JUSTICE SNOWDEN
Between
LISA WALTONAppellantsTHOMAS WALTONAppellantSHAN ALLMANRespondent
Rebecca Bailey-Harris (instructed by Paul Brook Solicitors) for AppellantsYasmin Yasseri (instructed by Hutton’s Solicitors) for RespondentHearing Hearing date: 27 October 2015
Judgment
[1]This is an appeal with the permission of Mrs Justice Asplin against an order of HHJ Godsmark QC sitting in the Nottingham County Court on 29 January 2015, refusing to grant the Appellants, Mr and Mrs Walton, relief against sanctions. The appeal raises questions of the application of the principles in Denton v TH White Limited[2014] 1WLR 3926, together with the jurisdiction to grant a charging order against an unquantified beneficial interest of a judgment debtor in property registered in the sole name of a third party.

Background

[2]Mr and Mrs Walton live at Oak Tree Farm, Broad Tree Hill Road, Tickhill, Doncaster, DN11 9HB, with Title No. SYK320499 (“the Property”). The Property is registered in the sole name of Mr Walton and was acquired by him in 1992. Mr and Mrs Walton were married on 11 September 1998.[3]In 2011, Mrs Walton issued proceedings against the Respondent, Mrs Allman. The claim was for breach of contract over the sale of a pony. At some point prior to the trial of the claim, Mrs Allman made an application for security for costs against Mrs Walton. That application was resisted by Mrs Walton and in the course of her resistance she served a witness statement dated 20 March 2012 in which she said:
“I verily believe that by virtue of marriage my contribution to the marriage, both as a wife and a mother, I have an equitable interest in the property and there is nothing that renounces this equitable interest”
. On the basis of that evidence, the application for security for costs against Mrs Walton was dismissed.[4]The trial of the claim took place in August 2012 before Mr Recorder Grubb in Cardiff County Court. The Recorder dismissed the claim and ordered Mrs Walton to pay Mrs Allman’s costs to be subject to a detailed assessment if not agreed. On 13 December 2012 an interim costs order was made for a payment on account by Mrs Walton to Mrs Allman of the sum of £30,000. Those costs have not been paid.[5]Relying upon the assertion by Mrs Walton in her witness statement that she had an equitable interest in the Property, on 11 January 2013 Mrs Allman issued an application for a charging order in respect of the judgment debt due to her. That application came before District Judge Hendicott in the Cardiff County Court on 21 January 2013. The District Judge made an interim charging order on the papers. He then transferred the application for the charging order to Chesterfield County Court, that being the county court local to Mrs Walton’s home.[6]It became apparent between the grant of the interim charging order and the hearing to make the order final that Mr Walton disputed that his wife had any interest in the Property. Accordingly, on 11 April 2013 District Judge Davies, sitting at Chesterfield County Court, made an order for the service of witness statements by Mr and Mrs Walton dealing with the question of whether Mrs Walton had any interest in the Property registered in her husband’s name.[7]The witness statements were served on 25 April 2013. It was apparent from Mrs Walton’s statement that she had fundamentally altered her stance in relation to the question of whether she had an interest in the Property. Mrs Walton’s statement said: “I accept that I did not have in interest in Oak Tree Farm aforesaid either on a legal or an equitable basis. I further confirm that I have never had such an interest”.[8]On 25 November 2013 District Judge Davies made a further order obliging Mrs Walton to provide inspection of a number of identified documents by 16 December 2013. Mrs Walton failed to comply with that order. On 21 January 2014 District Judge Davies, of his own motion, made a further order that Mrs Walton should make specific disclosure by 5 February 2014 of specified documents (such as planning applications, correspondence with agents in relation to planning applications and all relevant security documents relating to the Property) that were in her possession or control, failing which she should be debarred from adducing any evidence at the hearing other than that which had been previously contained in her witness statement.[9]District Judge Davies also made an order giving Mr Walton formal permission to intervene in the proceedings on the basis of his claim to be the sole legal and beneficial owner of the Property. The District Judge also ordered Mr Walton to provide disclosure of any documents upon which he might seek to supplement his witness statement by the same date, and debarring him from adducing any further evidence in default of production of such documents.[10]The trial to determine the beneficial interests in the Property and to make the charging order final or to dismiss it took place on 24 April 2014 before District Judge Davies. At the trial, counsel for Mr and Mrs Walton suggested that the court did not have requisite information before it to assess the beneficial interest of Mrs Walton in the Property. The skeleton argument of counsel for Mrs Allman asserted that the bank statements of Mr and Mrs Walton were highly relevant to the question of whether she had a beneficial interest in the Property, stating, “Mrs Walton has declined to disclose bank statements or other documents to indicate segregation of incomes or expenditures associated with the Property. It is submitted that the wholesale lack of disclosure indicates collusion between Mrs Walton and her husband or potential concealment of evidence that would provide significant assistance to the court. Mrs Walton cannot deny the existence of such documents and has not explained her failure to address the same.”[11]At the hearing before District Judge Davies, Mrs Walton declined to give oral evidence even though she was present. She said that she was suffering from stress and that it would be medically harmful for her to give evidence. Mr Walton gave evidence and was cross-examined. District Judge Davies disbelieved Mr and Mrs Walton’s evidence. He found that the evidence pointed to the existence of a common intention constructive trust. District Judge Davies decided to make the charging order over Mrs Walton’s beneficial interest in the Property final, albeit that he did not quantify the amount of that interest. The District Judge also ordered Mr and Mrs Walton to be jointly and severally liable for the costs owing in the amount of £12,261.16 payable forthwith.[12]That costs order was not complied with, and on 11 July 2014 Mrs Walton sought permission to appeal out of time against the District Judge’s order. On 13 October 2014 HHJ Inglis, sitting in the Nottingham County Court, gave permission to appeal and ordered that the appeal should be by way of a re-trial before a Circuit Judge. He further went on to make the directions which are the heart of the current appeal. These directions were in the following terms:
“3. Mr and Mrs Walton must by 4.00 pm on 3 November 2014 give disclosure of all documents which have been in within their possession or control relating to, a. the circumstance in which Mr Walton acquired the property; b. all dealings by either of them with the property since Mr Walton acquired it including any dealings by the creation or satisfaction of charges, the making of or paying for improvements to it and the provision of purchase money if any; c. any applications for planning permission made in respect of the property since Mr Walton acquired it; d. any other matters relevant to the beneficial ownership of the property. 4. Insofar as the disclosure made in paragraph 3 of this Order includes any documents which are no longer within the possession or control of [Mr or Mrs Walton], [Mr or Mrs Walton] (as appropriate) shall by 4pm on 3rd November 2014 file and serve a witness statement explaining what has become of them…. 7. If either [Mr or Mrs Walton] fails to comply with paragraphs 3, 4 and 5 of this Order the appeal shall stand dismissed without further order”
. Although giving permission to appeal, HHJ Inglis left the costs order (for payment of £12,261.16) undisturbed. Those costs have not been paid. a. the circumstance in which Mr Walton acquired the property; b. all dealings by either of them with the property since Mr Walton acquired it including any dealings by the creation or satisfaction of charges, the making of or paying for improvements to it and the provision of purchase money if any; c. any applications for planning permission made in respect of the property since Mr Walton acquired it; d. any other matters relevant to the beneficial ownership of the property.[13]The date for the hearing of the appeal was fixed for 29 January 2015 with a time estimate of one and a half days.[14]Mr and Mrs Walton gave disclosure of a number of documents pursuant to the order of HHJ Inglis. Those documents did not include any bank statements or a number of other categories of relevant documents, but Mr and Mrs Walton did not provide any witness statements explaining the absence of those documents.[15]After inspecting the documents that had been provided, on 26 November 2014 Mrs Allman’s solicitors wrote to Mr and Mrs Walton’s solicitors requesting copies of the bank statements of Mr and Mrs Walton. They pointed out that the disclosure of such bank statements was essential as it would shed light on how Mr and Mrs Walton arranged their finances and how they discharged the outgoings on the Property and their other household expenses.[16]On 27 November 2014 the solicitor acting for Mrs Allman spoke to the solicitor acting for Mr and Mrs Walton (Mr. Paul Brook). The attendance note of the telephone call records that Mr Brook said that he had asked his clients about the bank statements and “if they have them he'll disclose them”.[17]On 8 December 2014 Mr and Mrs Allman’s solicitors sent an email chasing disclosure of Mr and Mrs Walton’s bank statements. The email stated: "Do your clients propose to disclose their bank statements? If so it would be useful to have them before our client files her statement in response".[18]On 15 December 2014 Mr Brook replied: “My client is considering your request in relation to bank statements but fails to see how the bank statements will take the matter any further. The bank statements were not ordered by the Court”.[19]On 9 January 2015 Mrs Allman’s solicitors wrote again pointing out the relevance of the bank statements to the issues at hand. Amongst the other points made their letter said: “We have repeatedly asked for these documents and your clients have repeatedly refused to disclose them. It is disingenuous of them to argue on the one hand that the court cannot make findings concerning the beneficial interest because it doesn't have the 'requisite information' and at the same time deliberately withhold such information from the court in order to prevent the court from making such a finding”.[20]On 22 January 2015 Mr Brook responded: “I have further discussed your requests for bank statements with my clients and my counsel. Regrettably my clients do not retain copies of their bank statement once the entries on the statement have been checked. Presumably you require statements going right back to the commencement of their relationship. It would, unfortunately, take some time to obtain copies from the banks concerned. Would you be prepared to meet the costs of such copies being supplied? Also, it would be impossible to obtain the copies in time for the hearing. I doubt that the information in the bank statements would take the matter much further in any event. My clients have fully complied with the Order for discovery made by the Circuit Judge and that should be sufficient in all the circumstances”.[21]On 23 January 2015 Mrs Allman’s solicitors responded: “We note that your clients do not see the relevance of adducing bank statements, tax records and accounts and that in relation to the bank statements they no longer have them. We point out that if your clients had intended to adduce their bank statements they should have requested them from the bank immediately after the Order was made on 13 October 2014. Had they done so they would have been available now. Furthermore, we consider that your clients should have adduced a witness statement by 3rd November 2014 in relation to the bank statements confirming their whereabouts if they are not in their possession, as required by paragraph 4 of the order. We reserve our client's position regarding this breach. For the sake of clarity we confirm our client is not willing to pay for copies of these bank statements: your client was required to produce them in support of their appeal”.[22]That prompted a response on the same day from Mr Brook:
“I have impressed upon my clients the importance you place on their bank statements. In consequence, they have searched and obtained whatever statements they can”
. The letter then set out details of three bank accounts and enclosed some statements for two of those accounts covering a period from 2009/2010 to 2014/15. The accounts that were produced in relation to Mr Walton showed no income, so on 26 January 2015 Mrs Allman’s solicitors sought disclosure of any business bank statements of Mr and Mrs Walton.[23]Mrs Allman’s solicitors had reserved their position in correspondence about non-compliance with the court order for disclosure, and on 27 January 2015 they wrote to the Nottingham County Court submitting that the appeal had been struck out as a result of Mr and Mrs Walton’s failure to comply with the order of HHJ Inglis of 13 October 2014.

The Judgment of HHJ Godsmark QC

[24]The letter of 27 January 2015 was in front of HHJ Godsmark QC when the substantive hearing of the appeal came before him on 29 January 2015. Mrs Bailey-Harris appeared for the first time for Mr and Mrs Walton. HHJ Godsmark QC gave a fully reasoned judgment. After setting out some of the background he held that the appeal had indeed been struck out, saying this:
“8. The matter came on for hearing before me today, and the point was raised that in fact there had been default. The default was exemplified by the fact that the bank statement from both Mr and Mrs Walton appeared belatedly in the hearing bundle, having been disclosed over the last week or so, and certainly not by 3rd November 2014, which was the date ordered by Judge Inglis. 9. Mrs Bailey-Harris made representations as to whether or not there had been compliance with the order of Judge Inglis, and despite efforts, I think was really forced to concede that there had been a breach, and that accordingly the sanction imposed by the order of Judge Inglis must apply. That sanction was made quite clear in paragraph 7 of his Order, that a breach of paragraph 3, or indeed paragraph 4, or 5, would result in the appeal standing dismissed without further order. Having made that concession, it thus became clear that there was nothing for me to adjudicate upon today, the appeal had already been dismissed pursuant to the order of Judge Inglis.”
[25]HHJ Godsmark QC then indicated that he had allowed Mrs Bailey-Harris time to make an application for relief against sanctions and to obtain a witness statement from Mr Brook. HHJ Godsmark QC summarised that evidence in a way which, in my judgment, was entirely accurate. He said, “11. I hope I do not do injustice to the witness statement if I say that in essence Mr Brook says that he felt that there had been compliance at the time of disclosure. He did not think that bank statements were particularly necessary, and so had not requested them. Indeed he accepts that when pressed by the other side, by Mrs Allman’s solicitors for bank statements, he responded to say he did not think they would take matters any further. The witness statement is silent as to the reason for non production of a witness statement dealing with the absence of documentation, which is referred to elsewhere in Mr Brook’s witness statement. For example, there are no invoices in relation to improvements of the property, there are no accounts for the businesses which are run by either one or both Mr and Mrs Walton. There is no explanation for the absence of these documents.”[26]HHJ Godsmark QC then dealt with the application for relief from sanctions on the basis suggested by the Court of Appeal in Denton v TH White Limited[2014] 1WLR 3926. He did so in the following terms: “12. I have to deal with the application before me on Denton terms. There is a three stage test. The first part of the test is to consider whether or not the breach is serious or significant. I have no hesitation in concluding that this was both a serious and significant breach of the order of Judge Inglis. It was late disclosure, there has been failure to disclose, there is no witness statement of explanation for the lack of possession of documentation. This is a hearing which is dependant upon disclosure. It is disclosure which is lacking, and which has caused the major problem in any potential for pursuing this hearing today. So I certainly categorise the breach as serious and significant.13. Stage two of the test is to go on and consider why the default arose; was there a good reason? The conclusion that I come to is that no good reason is advanced. Mr Brook says that he thought that there had been compliance, but as I say, it is difficult perhaps to understand that given that the need for disclosure of bank statements had been raised in Counsel’s skeleton argument for the first instance hearing, let alone the appeal. It is also at the centre of any exploration such as this. The Court would need to know what financial arrangement there were between the parties, what contributions each made financially to the expenditure, particularly expenditure on the property under consideration. One cannot do that without looking at bank statements. There is in addition, as I say, no explanation for the failure to file a witness statement of explanation as to the absence of any documentation. So the second stage is fulfilled also.14. So far as the third step is concerned, I need to evaluate all the circumstances of the case. The requirement that litigation be conducted efficiently and at proportionate cost, and of course, the interests of justice. I am afraid this case has been an example of how litigation is conducted inefficiently. Disclosure is still not complete. The Santander bank account statements have not been disclosed in their entirety, we have a mini statement, a snapshot on one particular date. That discloses the existence of a bank account, and nothing more. Today, we have heard of funding which came from an inheritance. That is the first I have heard of that. The disclosure, and indeed the witness statement of the parties, are silent as to how much and how it was used, and when. There is still no witness statement explaining the absence of documents to be expected. I say no witness statement, no witness statement from either Mr or Mrs Walton. There is some discrepancy perhaps in that I am being told in one sense that improvements to the property have been paid for in cash, and in another, in the witness statement of Mr Brook, that the Intervenor, Mr Walton, undertook them himself. It is not clear to me whether that means with his own hands, or whether it means with his own financial resources. But if it is with his own hands, it needs explanation. If it is his own financial resources, there needs to be a witness statement or disclosure.15. I marry into this the fact that there has been a history of breaches, as set out in the judgment by District Judge Davies. He did not allow relief from sanctions on the day of his hearing, and the late production of documents at that stage.16. It is suggested that I allow this application for relief from sanctions. It is conceded that inevitably today’s trial will have been aborted, and that we will have to adjourn off to another day, in effect to give the Appellants a third bite of the cherry. That means that further work is going to have to be done to get this case into a ready state for trial. It should have been ready back in November, or December. It is still not ready in January. This is not the efficient conduct of litigation, and it is to be deprecated.17. There is a new climate arising out of the revision of CPR 3.9. Decisions such as Mitchell, and as Denton, show that the court will be far less tolerant of breaches that it has been in the past. Parties and practitioners must understand that they must obey court orders and comply with them, or promptly apply for relief from sanction. This is not a prompt application. It is made on the morning of the hearing.18. I have no hesitation in coming to the conclusion that this is a prime example of a situation where relief from sanctions should not be granted due to the rather haphazard way in which this matter has been prepared for trial today. The application is refused. The order of [District] Judge Inglis dismissing the appeal will stand."[27]HHJ Godsmark QC finally dealt with a point about the appropriateness of having a charging order with no quantification of the amount of Mrs Walton’s beneficial interest. He said:
“19. I should add that I do not ignore a point that was raised by Mrs Bailey-Harris to the effect that there is going to be a need to be a hearing in any event of the quantum of Mrs Walton’s beneficial interest. However I am satisfied that that is not a matter which should affect me today. If there is going to be a hearing as to the extent of Mrs Walton’s interest in the property, that can be quantified on any application for order for sale. For the time being, all that is required is security, and I see no reason why that should not remain in place, both in the overall justice of the matter, and in the light of the way in which this case has come before me today.”

The Appeal

[28]Mr and Mrs Walton now appeal against the decision of HHJ Godsmark QC and seek relief against sanctions. The test which the court applies on an appeal is set out in CPR 52.11(3) in the following terms:
“52.11(3) The appeal court will allow an appeal where the decision of the lower court was – (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.”
[29]In the context of a decision as to whether or not to grant relief from sanction, the following observation is made in Civil Procedure (The White Book) at paragraph 3.9.6.11:
“Decisions as to whether or not to grant relief from sanctions are always discretionary and are highly case sensitive. Appeal courts will not interfere with a lower court’s decision on such matters unless satisfied that the lower court has erred in law, erred in fact or reached a conclusion which falls outside the generous ambit within which reasonable disagreement is possible.”
[30]That commentary appears to me to be an entirely accurate reflection of the requirements before a decision can be regarded as ‘wrong’ for the purposes of CPR 52.11(3)(a). Moreover, as regards the approach to discretionary decisions, it is consistent with the judgment of Lord Fraser in G v G [1985] 1 WLR 647 at 652: “The appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible”.[31]An alternative formulation to appeals in relation to discretionary decisions is that of Lord Woolf MR in Phonographic Performance Ltd v AEI Redefusion Music Ltd [1999] 1 WLR 1507 at 1523 citing Roache v News Group Newspapers Ltd [1998] EMLR 161 at 172: “Before the court can interfere it must be shown that the judge has either erred in principle in his approach or has left out of account, or has taken into account, some feature that he should, or should not, have considered, or that his decision was wholly wrong because the court is forced to the conclusion that he has not balanced the various factors fairly in the scale”.[32]In the particular context of relief from sanctions, I also draw attention to the comments of

Lord Justice Dyson in Mitchell v News Group Newspapers Limited[2013] EWCA Civ 1537:

“We start by re-iterating a point that has been made before, namely that this court will not lightly interfere with a case management decision. In Mannion v Ginty [2012] EWCA Civ 1667 at para 18 Lewison LJ said: “It has been said more than once in this court it is vital for this court of appeal to uphold robust but fair case management decisions made by first instance judges”. “It has been said more than once in this court it is vital for this court of appeal to uphold robust but fair case management decisions made by first instance judges”
.

The Application of the Denton test

[33]I have set out paragraphs 12-18 of the judgment of HHJ Godsmark QC above in full. They show that, as a preliminary matter, the Judge correctly directed himself that he had to apply the three stage test in Denton.[34]In relation to the first stage of the Denton enquiry – namely to identify whether the failure to comply with any rule or practice direction or court order was serious or significant, I observe that in Denton, Lord Dyson and Voss LJ said, at paragraph 26, “we think it would be preferable if in future the focus of the enquiry at the first stage should not be on whether the breach has been trivial. Rather, it should be on whether the breach has been serious or significant. It was submitted on behalf of the Law Society and Bar Council that the test of triviality should be replaced by the test of immateriality and that an immaterial breach should be defined as one which "neither imperils future hearing dates nor otherwise disrupts the conduct of the litigation". Provided that this is understood as including the effect on litigation generally (and not only on the litigation in which the application is made), there are many circumstances in which materiality in this sense will be the most useful measure of whether a breach has been serious or significant.”[35]HHJ Godsmark QC’s decision that the breach in this case was both serious and significant was entirely consistent with this approach. A significant trial of one and a half days’ duration had been fixed which was obviously dependant on full disclosure being made by Mr and Mrs Walton, but which could not go ahead due to the late and incomplete disclosure, in admitted breach of the court order. It is no answer for Mr and Mrs Walton to suggest that there would have been no prejudice were the matter to have been adjourned and that the trial could easily have been re-fixed. In spite of having had a significant time and every encouragement to do so in correspondence, they had still not made full disclosure and had still not explained why they had not produced other missing documents. There was no assurance that they would comply with the court order even if given more time, and as the Court of Appeal also pointed out in Denton, it is not only the effect upon their case which should be taken into account, but also the waste of court time and the need to relist their case to the detriment of other litigants.[36]At the second stage of the Denton analysis, HHJ Godsmark QC took the view that no good reason had been advanced for the default. Again, I agree with him. The history of the matter which I have set out shows that the need for disclosure of the relevant bank statements had been raised between the parties at a very early stage. They were obviously relevant documents and it is apparent from the correspondence and the evidence of Mr Brook that both Mrs Walton and her solicitor took a wrong-headed view as to whether they were required to be searched for or produced from the outset.[37]The third stage of the Denton enquiry is for the Court to consider all the circumstances of the case so as to enable it to deal justly with the application. The Court of Appeal explained (by reference to CPR 3.9(1)(a) and (b)) the relevant factors to be taken into account at this stage in the following terms:
"34. Factor (a) makes it clear that the court must consider the effect of the breach in every case. If the breach has prevented the court or the parties from conducting the litigation (or other litigation) efficiently and at proportionate cost, that will be a factor weighing in favour of refusing relief. Factor (b) emphasises the importance of complying with rules, practice directions and orders. This aspect received insufficient attention in the past. The court must always bear in mind the need for compliance with rules, practice directions and orders, because the old lax culture of non-compliance is no longer tolerated. 35. Thus, the court must, in considering all the circumstances of the case so as to enable it to deal with the application justly, give particular weight to these two important factors. In doing so, it will take account of the seriousness and significance of the breach (which has been assessed at the first stage) and any explanation (which has been considered at the second stage). The more serious or significant the breach the less likely it is that relief will be granted unless there is a good reason for it. Where there is a good reason for a serious or significant breach, relief is likely to be granted. Where the breach is not serious or significant, relief is also likely to be granted. 36. But it is always necessary to have regard to all the circumstances of the case. The factors that are relevant will vary from case to case. As has been pointed out in some of the authorities that have followed Mitchell, the promptness of the application will be a relevant circumstance to be weighed in the balance along with all the circumstances. Likewise, other past or current breaches of the rules, practice directions and court orders by the parties may also be taken into account as a relevant circumstance."
[38]At this stage of the enquiry it should be borne in mind that this is a dispute over an appeal against a charging order in respect of what was initially an order for payment of £30,000 of costs. At the time of HHJ Godsmark QC’s ruling, the outstanding amount of costs outstanding had increased to over £42,000. The defaults in disclosure inevitably resulted in further costs being wasted that would also have been ordered to be paid by Mr and Mrs Walton in any event. None of the costs outstanding have been paid. Those factors must tell heavily against permitting relief from sanctions so as to require yet more costs to be spent on the issue of the charging order.[39]It also appears that there had been significant delay caused by the previous breaches and failures to comply with court orders in the past by Mrs Walton. To allow Mrs Walton relief against sanctions would have resulted in more delay and, as I have indicated, there was still no assurance that all the relevant documents had been or would be disclosed or their absence explained.[40]The remaining issue which requires further consideration at the third stage of the Denton analysis is the point dealt with by HHJ Godsmark QC in paragraph 19 of his judgment. The argument raised before HHJ Godsmark QC was based upon an assertion that since District Judge Davies had not quantified Mrs Walton’s beneficial interest in the Property, there would in any event have to be a hearing at some point in the future to ascertain the extent of Mrs Walton’s interest in the Property. So, it was contended, the refusal to grant relief against sanctions just put off the inevitable, and that instead of doing that, the court should have granted relief against sanctions and proceeded to determine the extent of Mrs Walton’s beneficial interest in the Property sooner rather than later.[41]Before me, in addition to this argument, Mrs Bailey-Harris ran a more fundamental point. She contended that District Judge Davies did not have jurisdiction to make a final charging order without having first quantified the precise beneficial interest of Mrs. Walton in the Property. Mrs. Bailey-Harris submitted that where a property was registered in the sole name of someone who was not the judgment debtor, the court had to complete both stages of the two-stage test outlined in Jones v Kernott [2012] 1 AC 716 at paras 51-52 so as to quantify the judgment debtor’s beneficial interest in the property before it could make a charging order.[42]Mrs Bailey-Harris then contended that since District Judge Davies had made a charging order which he had no jurisdiction to make, this was a very weighty factor which should lead the court to grant relief against sanctions. Mrs Bailey-Harris submitted that a lack of jurisdiction to grant an order could not be cured by a party’s default and a refusal to grant relief from sanctions, so that if I took the view that the charging order had been imposed without jurisdiction, I should grant relief from sanctions and set it aside on appeal.[43]I think that there is some force in Mrs Bailey-Harris’s point as to the weight that should be given, when considering whether to grant relief against sanctions, to the fact that an order might otherwise be left standing that the court had no jurisdiction to make. I therefore turn to consider whether the court can make a charging order in respect of a beneficial interest of the judgment debtor in property belonging in law to a third party, without quantifying the precise extent of that beneficial interest.

Charging Orders

[44]The starting point is the terms of the Charging Orders Act 1979. Section 1 of that Act provides, “(1) Where, under a judgment or order of the High Court or a county court, a person (the “debtor”) is required to pay a sum of money to another person (the “creditor”) then, for the purpose of enforcing that judgment or order, the appropriate court may make an order in accordance with the provisions of this Act imposing on any such property of the debtor as may be specified in the order a charge for securing the payment of any money due or to become due under the judgment or order. ”[45]Section 2 then provides, in material part, “(1) Subject to subsection (3) below, a charge may be imposed by a charging order only on — (a) any interest held by the debtor beneficially— (i) in any asset of a kind mentioned in subsection (2) below, or (ii) under any trust; or ….

(a) land,”

[46]Section 3(4) of the 1979 Act provides that, “Subject to the provisions of this Act, a charge imposed by a charging order shall have the like effect and shall be enforceable in the same courts and in the same manner as an equitable charge created by the debtor by writing under his hand.”[47]It is therefore clear that a charging order can be granted over a judgment debtor’s beneficial interest in land: see e.g. First National Securities v Hegerty [1985] QB 850 (CA); Royal Oak Property Co. v Iktilat [2008] EWHC 1703 at para 7. It is also clear that a charging order can be made in respect of “any interest held by the debtor beneficially” (my emphasis), provided that it can be “specified in the order”. When a charging order is granted, it gives the judgment creditor the equivalent of an equitable charge over the judgment debtor’s property.[48]CPR 73PD paras 1.2(6) and (7) simply require the evidence in support of an application for a charging order to provide “identification of the asset which it is intended to charge” and “details of the judgment debtor’s interest in the asset”. Further, the Practice Forms (N86 and N87) for interim and final charging orders do not require the court to quantify the precise extent of the judgment debtor’s beneficial interest in the asset in question. The interim charging order form simply recites that it appears to the court that the judgment debtor has a beneficial interest in the asset and both forms of order charge “the interest of the defendant in the asset”.[49]The foundation for Mrs Bailey-Harris’s submission that where a property was registered in the sole name of someone other than the judgment debtor, the court could not make a charging order over the judgment debtor’s beneficial interest in the property without quantifying that interest, was the following passage from the joint judgment of Lord Walker and Lady Hale in Jones v Kernott [2012] 1 AC 776 at paras 51-52, “51 In summary, therefore, the following are the principles applicable in a case such as this, where a family home is bought in the joint names of a cohabiting couple who are both responsible for any mortgage, but without any express declaration of their beneficial interests.(1) The starting point is that equity follows the law and they are joint tenants both in law and in equity.(2) That presumption can be displaced by showing (a) that the parties had a different common intention at the time when they acquired the home, or (b) that they later formed the common intention that their respective shares would change.(3) Their common intention is to be deduced objectively from their conduct….(4) In those cases where it is clear either (a) that the parties did not intend joint tenancy at the outset, or (b) had changed their original intention, but it is not possible to ascertain by direct evidence or by inference what their actual intention was as to the shares in which they would own the property, “the answer is that each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property”: Chadwick LJ in Oxley v Hiscock [2005] Fam 211, para 69. In our judgment, “the whole course of dealing … in relation to the property” should be given a broad meaning, enabling a similar range of factors to be taken into account as may be relevant to ascertaining the parties' actual intentions.(5) Each case will turn on its own facts. Financial contributions are relevant but there are many other factors which may enable the court to decide what shares were either intended (as in case (3)) or fair (as in case (4)). 52 This case is not concerned with a family home which is put into the name of one party only. The starting point is different. The first issue is whether it was intended that the other party have any beneficial interest in the property at all. If he does, the second issue is what that interest is. There is no presumption of joint beneficial ownership. But their common intention has once again to be deduced objectively from their conduct. If the evidence shows a common intention to share beneficial ownership but does not show what shares were intended, the court will have to proceed as at para 51(4) and (5) above.”[50]Mrs Bailey-Harris submitted that the instant case was of a type referred to in paragraph 52 of the joint judgment, and that there could thus be no presumption that Mrs Walton had any beneficial interest in the Property. That proposition is obviously right.[51]However, Mrs Bailey-Harris then submitted that in the absence of such a presumption, the court could not be satisfied that Mrs. Walton had any beneficial interest at all so as to enable it to make a charging order unless and until it had gone through the exercise of ascertaining what was “fair having regard to the whole course of dealing” between her and her husband. Mrs. Bailey-Harris could not produce any authority relating to charging orders in support of her argument, and I do not accept it.[52]The cases upon which Mrs Bailey-Harris relied, such as Jones v Kernott and Oxley v Hiscock [2005] Fam 211, were cases under section 14 of the Trusts of land and Appointment of Trustees Act 1996 (“TOLATA”). The claimant in such cases under section 14 seeks a declaration of “the nature or extent of a person’s interest in property subject to a trust”. Under that statutory jurisdiction, it is hardly surprising that Lord Walker and Lady Hale would identify a two stage process to be carried out to enable the court to make the necessary declaration as to the extent of the person’s beneficial interest. But those TOLATA cases say nothing about the different question of whether it is necessary for the court to go that far before being able to make a charging order under the 1979 Act.[53]In contrast to the purpose of a TOLATA application, the purpose of a charging order is to give a judgment creditor the equivalent of an equitable charge to secure payment of a judgment debt: see section 3(4) of the 1979 Act. This will enable the judgment creditor to take steps to ensure that his debt is paid from the assets of the judgment debtor, and, by putting him into a position akin to the holder of an equitable charge granted by the judgment debtor, to ensure that the debtor’s assets are not used to pay other unsecured creditors in priority to him or otherwise disposed of to his detriment.[54]In my view, in the same way as it must be possible for a debtor voluntarily to grant a valid equitable charge over “my beneficial interest” in an identified asset or under an identified trust, but without quantifying the precise value or extent of that interest, I see no reason why it should be necessary for the court to quantify the extent of a judgment debtor’s beneficial interest before making a charging order of equivalent effect under the 1979 Act.[55]That conclusion is, in my judgment, supported by the wording of the 1979 Act and supporting materials to which I have referred above, which do not require a precise quantification or valuation of the beneficial interest to be subject to a charging order.[56]I also think that this conclusion is supported by a consideration of the policy and practicalities of the 1979 Act. A judgment creditor will wish to have recourse to the 1979 Act so as to obtain priority for payment of his judgment, together with the possibility of applying for an order for sale as an enforcement mechanism. Delay in being able to obtain a final charging order can be fatal if, for example, the judgment debtor becomes subject to formal insolvency proceedings before the charging order is made final: see Roberts Petroleum v Bernard Kenny [1982] 1 WLR 301. The purposes of the 1979 Act might well be defeated if, in order to obtain a final charging order over property, a judgment creditor had to await the outcome of lengthy proceedings between the judgment debtor and his or her spouse or partner to determine the precise extent of the judgment debtor’s beneficial interest in that property, “having regard to the whole course of dealing between them in relation to the property”.[57]In my judgment it is sufficient for the purposes of giving the court jurisdiction to make a charging order under the 1979 Act that the court is satisfied that the judgment debtor has some beneficial interest in relevant property, even though the precise extent of that interest cannot be quantified at the time the charging order is made.[58]That was the approach which seems to have been taken by Bingham J at first instance in First National Securities v Hegerty [1985] 1 QB 850 and which was not doubted when the matter went on appeal. The case concerned a property registered in joint names, in which the judgment debtor’s estranged wife resisted the imposition of a final charging order on the basis that her husband had no beneficial interest in the property. She sought the transfer of the charging order proceedings to the Family Division to come on together with ancillary relief proceedings. Bingham J rejected her arguments and granted a final charging order without quantifying the extent of the beneficial interest of the husband. He stated, [1985] 1 QB 850 at 855D-E, “[Counsel] for the wife asked me to adjourn this appeal since evidence might be forthcoming to show that the husband had made no contribution to the purchase of the house and had no beneficial interest in it. Having considered this request I felt bound to refuse it. The hypothesis seems very unlikely bearing in mind that at the relevant time the husband was working and the wife was not. The wife has, moreover, had 18 months in which to repair this glaring omission, if it be such, in her affidavit sworn in April 1981. The precise extent of the husband's beneficial interest may have to be the subject of inquiry hereafter; it seems to me safe to assume that he has some interest.” (my emphasis) (my emphasis)[59]I should add that there are a number of other cases (albeit in the context that the judgment debtor was the sole or one of the joint legal owners) in which similar charging orders have been made whilst the precise extent of the judgment debtor’s beneficial interest remained to be quantified at some later stage: see e.g. Hameed v Qayyum [2008] EWHC 2274 (Ch), affirmed [2009] EWCA Civ 352.[60]The obvious juncture at which the court would be likely to be called upon to resolve the precise extent of the judgment debtor’s beneficial interest in the property would be if and when the judgment creditor decided to apply for an order for sale. But there is nothing inappropriate in having to resolve the precise extent of the judgment debtor’s interest some time after the final charging order has been made. Even when a judgment creditor obtains a final charging order, he may not be able to obtain an order for the sale of the property for some time or at all. The process of obtaining an order for sale is a separate step from the obtaining of a charging order itself: see e.g. CPR 73.10 and the notes thereto in Civil Procedure (The White Book). This makes the point that the decision whether to grant an order for sale is a very different discretionary decision to the decision to make a charging order final. On the application for an order for sale, a variety of other factors must be taken into account, including rights under Article 8 of the ECHR where the property in question is a home. It might well be, for example, that an order for sale would not be granted if there were infant children of the judgment debtor in occupation of the house and the judgment debt was relatively small.[61]Even in such a case, however, the very existence of the charging order would likely be of real value to the judgment creditor in the meantime, because it would place him into the same position as if the judgment debtor had offered voluntarily to charge his beneficial interest in the property to secure eventual payment of the judgment debt. It was this last consideration that underpinned HHJ Godsmark QC’s dismissal of Mrs Bailey-Harris’s final argument in paragraph 19 of his judgment. On the assumption that there had been jurisdiction to grant the charging order without quantifying the precise extent of Mrs Walton’s beneficial interest in the Property, HHJ Godsmark QC indicated that, “… for the time being, all that is required is security, and I see no reason why that should not remain in place, both in the overall justice of the matter, and in the light of the way in which this case has come before me today.”[62]In my judgment, that was an entirely correct response to the suggestion that the court should immediately proceed to conduct a hearing to determine the extent of Mrs Walton’s beneficial interest.[63]The general rule is that a chargee can look to his own interests in deciding whether, and if so, when, to enforce his security by seeking to exercise a power of sale: see e.g. Silven Properties Limited v RBS [2004] 1 WLR 997 at para 14 referring to Raja v Austin Gray [2003] 1 EGLR 91 at para 59, China and South Sea Bank v Tan [1990] 1 AC 536, and Tse Kwong Lam v Won Chit Sen [1983] 1 WLR 1349. The same must apply to the holder of a charging order.[64]In the instant case, Mrs Allman had already incurred very substantial costs in litigating against Mrs Walton, and none of the outstanding costs had been paid. District Judge Davies had concluded, after hearing evidence, that Mrs Walton did have a beneficial interest in the Property. HHJ Godsmark QC obviously thought, and I agree, that it would have been entirely unjust to require Mrs Allman to continue to incur yet further (possibly irrecoverable) costs in circumstances in which Mr and Mrs Walton had not made any effort to pay any of the outstanding costs, they had still not produced the necessary documents to enable the appeal against District Judge Davies’ grant of a final charging order to be heard, and Mrs Allman indicated that she did not wish to seek an immediate order for sale of the Property.[65]Accordingly, I consider that HHJ Godsmark QC correctly applied the Denton test and was fully justified in refusing Mr and Mrs Walton relief from sanctions.

Conclusion

[66]Accordingly, I dismiss the appeal against the Order of HHJ Godsmark QC.

Cited in 1 later judgment