Nihal Mohammed Kamal Brake v Geoffrey William Guy

JurisdictionEngland & Wales
JudgePaul Matthews
Judgment Date11 July 2022
Neutral Citation[2022] EWHC 1746 (Ch)
Docket NumberCase No: BL-2019-BRS-000028
CourtChancery Division
Between:
(1) Nihal Mohammed Kamal Brake
(2) Andrew Young Brake
Claimants
and
(1) Geoffrey William Guy
(2) The Chedington Court Estate Limited
(3) Axnoller Events Limited
Defendants

and

James Hay Pension Trustees Limited
Third Party

[2022] EWHC 1746 (Ch)

Before:

HHJ Paul Matthews

(sitting as a Judge of the High Court)

Case No: BL-2019-BRS-000028

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURT IN BRISTOL

BUSINESS LIST (ChD)

Bristol Civil Justice Centre

2 Redcliff Street, Bristol, BS1 6GR

Mrs Nihal Brake for herself and Mr Andrew Brake, Claimants

( Jon Colclough settled a skeleton argument for Mr Brake, but was not instructed for the hearing)

Calum Mulderrig (instructed by Stewarts Law LLP) for the Defendants

Charlotte Pope-Williams (of Pinsent Masons LLP) for the Third Party

Hearing dates: 30 May 2022

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

This judgment will be handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 am on 11 July 2022.

Paul Matthews HHJ

Introduction

1

This is my judgment on the further consideration of a third-party debt order (“TPDO”) made on an interim basis by Lewison LJ on 4 April 2022. The order followed the dismissal by the Court of Appeal on 2 March 2022 of an appeal by the claimants/appellants (“the Brakes”) against a decision of my own at the trial of this claim: see [2022] EWCA Civ 235 (appeal); [2021] EWHC 671 (Ch) (trial). Following the appeal, the Court of Appeal ordered that the Brakes pay the costs of the appeal of the defendants/respondents (“the Guy Parties”), and ordered an interim payment on account of £70,000 by 4 PM on 16 March 2022. That sum was not paid on that date, nor, so far as I understand, thereafter.

2

Subsequently, the Guy Parties made an application for a TPDO by notice dated 17 March 2022, although the notice was sealed by the Court of Appeal only on 28 March 2022. In the notice the third party was stated to be within England and Wales, and to owe money to one of the Brakes, namely the second claimant Andrew Brake. The third party was identified as “James Hay Partnership”, of an address in Salisbury.

3

In support of the application the Guy Parties said this:

“The judgment creditor's legal representatives have received confirmation by email from Mrs Brake on behalf of the judgment debtor dated 26 September 2021 that James Hay Partnership holds pension … in the name and for the benefit of Mr Andrew Brake …

The judgment creditor's legal representatives are aware that the judgment debtor is eligible to drawdown the pension and has previously done so in respect of his tax-free allowance, as confirmed by Mrs Brake on 14 March 2022 … The value of the pension following the drawdown of Pension Commencement Lump Sum was £89,522.89 (as at September 2021).”

4

As I say, Lewison LJ was invited to and did make the interim TPDO on 4 April 2022. He directed that the further consideration of the application should be at a hearing listed before me, not before 28 April 2022. The interim TPDO was served on the James Hay Partnership by email sent in the afternoon of 4 April 2022, and the application notice for the TPDO and documents in support were also served on the James Hay Partnership by email within half an hour thereafter. Receipt was acknowledged by email, expressly on behalf of the “James Hay Partnership”, by email on the morning of 5 April 2022.

Relevant procedural rules

5

Third-party debt orders (formerly known as garnishee orders) are governed by CPR Part 72. CPR rule 72.2 relevantly provides that:

“(1) Upon the application of a judgment creditor, the court may make an order (a ‘final third party debt order’) requiring a third party to pay to the judgment creditor –

(a) the amount of any debt due or accruing due to the judgment debtor from the third party; or

(b) so much of that debt as is sufficient to satisfy the judgment debt and the judgment creditor's costs of the application.

(2) The court will not make an order under paragraph 1 without first making an order (an ‘interim third party debt order’) as provided by rule 72.4(2).”

6

CPR rule 72.6(4) provides that:

“Any third party other than a bank or building society served with an interim third party debt order must notify the court and the judgment creditor in writing within 7 days of being served with the order, if he claims –

(a) not to owe any money to the judgment debtor; or

(b) to owe less than the amount specified in the order.”

7

CPR rule 72.8 relevantly provides that:

“(1) If the judgment debtor or the third party objects to the court making a final third party debt order, he must file and serve written evidence stating the grounds for his objections.

[ … ]

(4) Written evidence under paragraphs (1), ( 2) or (3) must be filed and served on each other party as soon as possible, and in any event not less than 3 days before the hearing.”

Procedural matters

First listed hearing for further consideration

8

No notice was filed by the third party under CPR rule 72.6(4) within the seven days of service of the interim order. Consistently with the order of Lewison LJ, on 7 April 2022 I directed that the hearing for further consideration of the application for a TPDO should take place before me at 2 PM on 29 April 2022. Since the expression “days” in the expression “not less than three days” is to be construed as “clear days”, excluding (a) the day on which the period begins and (b) the day on which the hearing takes place (see CPR rule 2.8(2), (3)), that would mean that any evidence under CPR rule 72.8(1) would have to be filed by 25 April 2022. No such evidence was filed by that date.

Second listed hearing for further consideration

9

As it happens, the hearing listed for 29 April 2022 did not go ahead. In the light of submissions made to me by the parties, on 27 April 2022 (when I was hearing another aspect of the litigation) I vacated that hearing and relisted it for 10 May 2022, with a time estimate of 30 minutes. At that stage there was no indication that there would be any argument or other submissions made on behalf of the third party, except so far as was necessary to ensure that the third party was not ordered to pay money which it did not have or incur liabilities which it could not discharge. As it was put by Ms Chatten, in-house counsel for the third party, in an email to the court on 26 April 2022,

“James Hay is essentially a neutral third party in this matter, and so does not either support or oppose the third party debt order”.

10

On 4 May 2022 and on 5 May 2022 the Guy Parties' solicitors wrote to Ms Chatten, asking her to confirm that the third party was adopting a neutral position, and that its only concern was not to incur any liability. On 6 May 2022 Ms Chatten replied to these enquiries, stating that:

“James Hay's position will be set out in a position statement which I understand will be exchanged with the Parties on 9 May 2022. James Hay is neutral on the merits of the underlying disputes to the application. That neutrality is not to say that James Hay is passive in its approach to the Third Party Debt Order application, however, and James Hay must be sure that the application has been brought on the correct footing and that any final order that might be made would be properly enforceable.”

11

The Guy Parties' solicitors replied on the same day, saying:

“We agree that any order must be enforceable and effective – on this point there are a number of issues that could usefully be addressed in your position statement which will be of assistance to the court (1) the content/form of any notices/instruction required by James Hay to draw down funds; (2) any timing issues in respect of drawing down funds; and (3) what information James Hay may require from Mr Brake (if any) to calculate tax due on any payment.”

12

Early on 9 May 2022 Ms Chatten replied to the email from the Guy Parties' solicitors, saying:

“I am afraid that I will not have time to alter the position statement to include those items as I am going to be in meetings most of the morning. To answer a question that you posed in an earlier email, to which I have not yet replied, James Hay does not have preferred wording for a third party debt order – however, its primary concern is that the wording requiring James Hay to pay a specified sum makes clear on its face that a lesser sum will be payable if that is all that can be realised from the SIPP/assets for whatever reason, and that there will be no residual liability on James Hay itself for any shortfall.”

Application for adjournment

13

A few hours later on 9 May 2022, the Brakes and the Guy Parties exchanged short skeleton arguments in preparation for the hearing the following day. However, at the same time, and undoubtedly to the surprise of the Guy Parties, the third party served a 13 page “Position Statement” raising a number of legal objections to the making of a final TPDO. The document was actually dated 3 May 2022, but served on the parties and sent to the court only six days later. The legal objections raised included (i) identification of the wrong legal entity name in the third party debt order, (ii) disputing whether any debt had accrued at all, and (iii) raising an issue about the third party's duties to Mr Brake. As a result, the Guy Parties made an urgent application to the court to adjourn the hearing for the following day, and relist it on the first available date on or after 3 June 2022, with a time estimate of half a day. They also asked the court to reserve the costs of the adjournment, but indicated that they would be seeking those costs from James Hay in due...

To continue reading

Request your trial
6 cases
  • David Bacci v Matthew Green
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 25 Octubre 2022
    ...support of his submissions a passage from the decision of Judge Paul Matthews, sitting as a Judge of the High Court, in Brake v Guy [2022] EWHC 1746 (Ch). In that case, judgment creditors applied for an injunction under section 37(1) of the 1986 Act requiring a debtor (a) to exercise his r......
  • Manolete Partners Plc v Ian Russell White
    • United Kingdom
    • Chancery Division
    • 16 Marzo 2023
    ...BPIR 641 Bacci v Green [2022] EWCA Civ 1393, [2023] Pens LR 2 Blight v Brewster [2012] EWHC 165 (Ch), [2012] 1 WLR 2841 Brake v Guy [2022] EWHC 1746 (Ch) Lindsay v O'Loughnane [2022] EWHC 1829 (QB), [2022] Pens LR 13 Office of the Bankruptcy Adjudicator v Shaw [2021] EWHC 3140 (Ch), [20......
  • Chedington Events Ltd (formerly Axnoller Events Ltd) v Nihal Mohammed Kamal Brake
    • United Kingdom
    • Chancery Division
    • 15 Noviembre 2022
    ...in relation to a third party pension policy owned by Mr Brake. On 30 May 2022, I decided that the TPDO should be made final: see [2022] EWHC 1746 (Ch). But my order involved the grant of an injunction requiring Mr Brake to exercise his right to draw down his remaining pension entitlement f......
  • Nihal Mohammed Kamal Brake v Geoffrey William Guy
    • United Kingdom
    • Chancery Division
    • 20 Julio 2022
    ...party agreed to, and which the Brakes did not oppose.) In my written decision of 11 July 2022, I acceded to this application: see [2022] EWHC 1746 (Ch). I then invited written submissions from the parties as to consequential matters (including costs). I have received and considered such su......
  • Request a trial to view additional results
1 firm's commentaries

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT