Charging order – Enforcement of judgment debt – Respondent obtaining judgment against applicant for mortgage debt – Part of judgment debt outstanding after sale of mortgaged property – Respondent obtaining charging order over another property held in applicant’s name – Whether permission of court required to apply for charging order to secure judgment debt more than six years after judgment – Permission to appeal refused
In November 2001, the respondent obtained a judgment against the applicant for possession of a property over which it held a mortgage together with a money judgment for more than £24,000, which was not to be enforced so long as the applicant made various defined payments. The applicant did not do so. In 2004, the property was the subject of a compulsory purchase in respect of which the respondent received compensation. However, the amount of this was insufficient to discharge the money judgment. In May 2009, the respondent, in order to secure the £18,000 balance of the judgment debt, applied to the county court for a charging order over another property held in the applicant’s sole name.
An interim charging order was granted in August 2009. The applicant opposed the grant of a final order. She contended that, inter alia, the application for a charging order could only be brought only with the court’s permission if the judgment debt was more than six years old at the date of the application, by analogy with late applications for writs under RSC Ord 46, r 2(1)(a), which continued to apply under the CPR. The judge rejected her contentions and made the charging order.
A district judge dismissed the applicant’s appeal against that decision. Her application for permission to mount a second appeal was refused on the papers. She renewed that application at an oral hearing, contending that her case raised an important point of principle as to whether a creditor was required to obtain permission to apply for a charging order and to explain why such permission should be given more than six years after the judgment had been given.
Held: Permission to appeal was refused.
Although the “six-year” point would raise an important point of principle if it were properly arguable, it was not so arguable. There was no support for the existence of the point in the Charging Orders Act 1979 or in CPR 73 and its related Practice Direction. Although it might appear odd for r 2 of RSC Ord 46 to contain an express condition in respect of writs of possession, while CPR 73 did not set out like express condition with regard to charging orders, that did not without more justify reading CPR 73 as implicitly containing such a condition. There was no authority to support the view that such a condition should be implied: Lowsley v Forbes (t/a as LE Design Services) [1999] 1 AC 329 distinguished. Accordingly, the passage of time was significant only as a factor for the court to take into account when exercising its discretion whether or not to make the order. The applicant’s point was unarguable and did not justify an appeal.
Nicholas Davis, of Albinson Napier & Co, of Warrington, appeared for the appellant; the respondent did not appear and was not represented.
Sally Dobson, barrister
