Bank bringing action against appellant for judgment debt – Charging order nisi made – Judge making order for payment of debt by instalments – Court exercising discretion and making charging order absolute – Whether court having jurisdiction to make charging order absolute – Appeal dismissed
The claimant brought an unsuccessful action against the defendant bank and an order for costs was made in favour of the defendant. The defendant brought an action against the claimant in respect of the amount owed, and, in 1999, it obtained a charging order nisi. The claimant applied for a stay of the costs order. In January 2000 the deputy judge made an order for the payment of the debt to be made by instalments. In February 2000 the district judge exercised his discretion and made a charging order absolute. The county court subsequently dismissed the claimant’s appeal against the charging order absolute, and the claimant appealed.
Section 86(1) of the County Courts Act 1984 provided that where the court had made an order for payment of a sum of money by instalments, execution of an order should not take place unless there had been a default on payment. In the instant case, the claimant had not defaulted on any of the instalments. The claimant submitted that “execution” in section 86(1) referred to any form of execution of an order, and that an order nisi and an order absolute were two separate forms of execution. The claimant submitted that, as a matter of principle, a charging order and an instalment order should not co-exist. The issues were: (i) whether the court had jurisdiction to make a charging order absolute; and (ii) the effect the instalment order should have had upon the court’s exercise of discretion in making the charging order absolute.
Held: The appeal was dismissed.
As a matter of statutory construction, there was jurisdiction to make the charging order absolute, if a charging order nisi was obtained before the instalment order was made. “Execution” occurred when the charging order nisi was made: there was no separate execution when the order absolute was made. There was nothing wrong, in principle, with the co-existence of a charging order and an instalment order. Section 1(5) of the Charging Orders Act 1979 set out the matters to be considered in the exercise of the court’s discretion in making a charging order absolute, and it was clear that the court could take account of what had happened since the order nisi had been made. The instalment order therefore fell to be considered under section 1(5)(a) of the Act. The district judge did consider the instalment order and therefore did take account of relevant factors in the exercise of his discretion. There was no ground upon which the court could interfere with the exercise of the judge’s discretion to make the charging order absolute.
Paul Spencer (instructed by Huttons, of Cardiff) appeared for the claimant; David Quest (instructed by Dolmans, of Cardiff) appeared for the defendant.
Sarah Addenbrooke, barrister
