Century Property (Leeds) Ltd v Eville & Jones (Group) Ltd

Hearing date: 29 April 2025

Draft judgment circulated to the parties: 23 May 2025

APPROVED JUDGMENT

This judgment was handed down remotely on 3 June 2025 at 10.30 am by circulation to the parties or their representatives by e-mail and released to the National Archives.

Andrew Kinnier K.C. sitting as a Deputy Judge of the High Court:

Introduction

By an application (dated 16 October 2024) Century Property (Leeds) Limited (“ Century Property”) applies for mandatory injunctions against Dr Jason Aldiss, the First Defendant, and Embark Pensions Trustees Limited (“ Embark”), the Third Party, to enforce a judgment debt against the First Defendant's self-invested personal pension of which Embark is the trustee (“ the application”).

In the same application notice Century Property also asks, under CPR 19.2(4) and/or CPR 19.4(11), to be substituted as the Claimant (“ the substitution application”).

In support of its application, Century Property, which is represented by Mr Thomas Horton of counsel, relies upon the third statement of Mr Toby Starr (dated 16 October 2024) and its exhibits.

Dr Aldiss represents himself. He has served no evidence in response either to the application or the substitution application.

Neither the Claimants, the Second Defendant nor Embark have participated in the progress or hearing of the application or the substitution application. None has served any evidence, attended the hearings or sought to make submissions.

PART 1 – the relevant background

The Tomlin order and the enforcement proceedings

On 27 July 2023, Master Eastman approved a Tomlin order which contained the terms on which the Claimants and Dr Aldiss had compromised the original proceedings (“ the Tomlin order”). Dr Aldiss agreed to pay £450,000 to the Claimants in two instalments: £150,000 on or before 28 October 2023 and the balance of £300,000 by 28 September 2025. The latter instalment was to be paid from Dr Aldiss' personal pension scheme which was described as “Options SIPP Re JK Aldiss, account number FW1013766SIP” (“ the pension fund”). It was also agreed that if Dr Aldiss failed to pay the first instalment of £150,000 in full by 28 October 2023, the entire settlement sum of £450,000 would become immediately due and payable.

Dr Aldiss paid the sum of £47,500 on 30 October 2023 but he did not pay all the first instalment on or before 28 October 2023. Therefore, the balance of £402,500 became due and payable immediately. By an order of 31 October 2023, Master Eastman entered judgment against Dr Aldiss (“ the judgment order”) in the sum of £402,500 (“ the judgment debt”).

Dr Aldiss has not paid the judgment debt or any part of it. On the application of Century Property, on 23 April 2024, Master Eastman made an interim charging order over the pension fund (“ the interim charging order”). That order was made final on 29 May 2024 (“ the final charging order”).

It is now some 22 months since the parties' settlement, as contained in the Tomlin order, was approved and there has been no effective challenge to that settlement, the Tomlin order or the judgment order. There was no appeal against, or any application to vary or set aside, the interim or final charging orders.

The first hearing

The first hearing of the application was before me on 12 February 2025 (“ the first hearing”). It had been fixed in December 2024, some two months before. In pre-hearing correspondence with Century Property's solicitors, Dr Aldiss said that he would make various applications, but none was made and no evidence was served by him.

At the first hearing and without notice, Dr Aldiss asked for an adjournment of 42 days to allow him to gather evidence in answer to the application, including medical expert evidence about his mental capacity at the time when the settlement agreement was reached and the Tomlin order was made. Dr Aldiss said that the medical expert evidence would be available to him by 25 February 2025.

Dr Aldiss' application was opposed by Century Property on three principal grounds. First, Dr Aldiss had had more than enough time to gather his evidence before the first hearing but had not done so and no good reason had been given to explain that failure. Secondly, his failure to lodge evidence and the late adjournment application echoed Dr Aldiss' previous conduct when he had failed to comply with court orders. Finally, an adjournment would waste court time and money.

Notwithstanding the force of Century Property's submissions, I adjourned the application to give Dr Aldiss a further opportunity to respond to the application. He was permitted to file and serve any evidence upon which he wished to rely by 12 March 2025. Century Property was allowed to serve any evidence in response by 26 March 2025 and the next hearing was listed to be heard on the first available date after 9 April 2025. The recital to the order made on 12 February 2025 recorded Dr Aldiss' assurance to me that he “completely understood” that should he fail to file and serve any evidence in response to the application then, subject to the view of the judge at the next hearing, it would be unlikely that he would have any further opportunity to do so and that the application would proceed. On 27 February 2025, the application was re-listed to be heard on 29 April 2025, again before me (“ the second hearing”).

Dr Aldiss' application to adjourn the second hearing

By an application (dated 23 April 2025), Dr Aldiss sought an adjournment of the second hearing and a stay of the enforcement proceedings pending determination of his application to the Court of Appeal (also dated 23 April 2025) for permission to appeal the Tomlin order and the judgment order.

At the second hearing, Dr Aldiss told me that the Court of Appeal had declined to consider his application because the proper route of appeal against an order of a Master sitting in the King's Bench Division was to a Judge. The ground relied upon by Dr Aldiss to adjourn the second hearing and to stay the enforcement proceedings had therefore fallen away.

Dr Aldiss served no evidence at all in response to the application following the first hearing. There was no witness statement from him or anyone else which set out the facts and matters on which Dr Aldiss relied and there was no good explanation for why no witness statement had been served. Dr Aldiss also said that the NHS body which he had first approached to provide expert evidence about his mental capacity in 2023 had felt unable to assist. Instead, he had been referred to a company which provides medico-legal expert witness services. Regrettably, Dr Aldiss was unable to say when any expert report from that source might be available.

In the circumstances, for the reasons set out in my ex tempore judgment, I refused Dr Aldiss' application for an adjournment and a stay and heard the application (including the substitution application) to which I now turn.

PART 2 – the substitution application

Century Property applies to be substituted as the Claimant and relies upon CPR 19.2(4) and CPR 19.4(11). The former allows the court to order a new party to be substituted for an existing one if the existing party's interest or liability has passed to the new party and it is desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings. The latter is a general power to remove, add or substitute parties in existing proceedings on the court's own initiative.

In support of its application, Century Property relies upon a deed of assignment, executed on 1 December 2023 following resolutions of both Claimants' boards, by which the Claimants assigned the judgment debt to Century Property. Notice of the assignment was sent to Dr Aldiss on the same day. Mr Horton submitted that the deed of assignment complied with the requirements of s. 136 of the Law of Property Act 1925 (“ the 1925 Act”) because it is absolute and does not take effect by way of a charge; it is in writing; it is given under the hand of the assignor and written notice of the assignment was given to the debtor. The Claimants have also given their consent to the proposed substitution. For these reasons, the requirements of CPR 19.2(4) and 19.4(11) have been satisfied and there is no good reason why the application should not be allowed.

Dr Aldiss opposed the application. In essence, he did not question the substance of the deed of assignment but contended that it was not lawfully executed primarily because of the nature and effect of certain unspecified disputes at the time of its execution. Unfortunately, Dr Aldiss lodged no evidence which supported his objection to the substitution application or explained the nature and relevance of the disputes to which he referred or their consequences for the lawfulness of the deed of assignment.

For the purposes of CPR 19.2(4), on the evidence before the court, there has been a valid assignment of the judgment debt by the Claimants to Century Property and, as Mr Horton submitted and I accept, the requirements of s. 136 of the 1925 Act have been met. Accordingly, the former's interest has passed to the latter and the Claimants have agreed to...