Seoirse Treabhar Ropaigealach v Allied Irish Bank Plc

An instalment order made after a charging order nisi does not remove the court’s jurisdiction to make the charging order absolute. The charging order is issued when the nisi is made; making it absolute does not constitute a separate issue of execution.

A charging order and an instalment order may coexist. In deciding whether to make the order absolute, the court must consider all the circumstances, including the debtor’s personal circumstances and possible prejudice to other creditors. Compliance with instalments is relevant, but the longer the repayment period, the stronger the justification may be for securing the debt.

The appellant had lost proceedings against the respondent bank and was ordered to pay approximately £12,500 in costs. A charging order nisi was obtained before an order was made requiring payment by monthly instalments. The charging order was subsequently made absolute.

The Cardiff County Court dismissed the appellant’s appeal from the district judge. On this second appeal, the Court of Appeal considered whether the later instalment order deprived the court of jurisdiction to make the charging order absolute and, if not, how that order should affect the exercise of discretion.

1. Appeal dismissed. The Court of Appeal held that there was jurisdiction to make the charging order absolute because the charging order nisi had been obtained before the instalment order. Execution was issued when the charging order nisi was made. No separate execution was issued when the order was made absolute.
2. A charging order nisi and an instalment order are capable of coexisting. The instalment order regulates the method of payment, whereas the charging order secures eventual payment of the judgment debt. The court rejected the argument that the two orders were, as a matter of principle, mutually incompatible.
3. The relevant statutory discretion arose under section 1(5) of the Charging Orders Act 1979. The court had to consider all the circumstances, including the debtor’s personal circumstances and whether another creditor might be unduly prejudiced. Events occurring after the charging order nisi, including the making of the instalment order, could be considered when deciding whether to make the order absolute.
4. The instalment order was a relevant personal circumstance, but it did not compel refusal of the charging order. The district judge had adequately considered it and had noted that the instalment arrangement would remain in force. Given the very long repayment period, there could be good reason to provide security for the debt.
5. Lady Justice Hale and Lord Justice Rix agreed that the district judge’s exercise of discretion could not be faulted. The appeal was dismissed, with the respondent’s costs summarily assessed at £4,500. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): The appeal from the Cardiff County Court was dismissed. The court upheld the order making the charging order absolute.
• Cardiff County Court: His Honour Judge Masterman dismissed the appeal from the district judge’s charging order absolute made on 18 February 2000.
• Cardiff County Court: The district judge made the charging order absolute after an instalment order had been made.