Chambers v Chambers

An appellate court should interfere with a discretionary order only where the judge was plainly wrong, meaning that the decision fell outside the generous ambit within which reasonable disagreement is possible. A long-standing order for sale should not be delayed merely because a party disputes the validity or amount of a local authority charge. The dispute may be determined separately, including after sale, with disputed proceeds paid into court or another appropriate account. Directing the occupant to vacate and allowing the sale to proceed does not deprive that party of the right to challenge the charge.

The parties, who were divorced, held a property in equal shares. A Chancery order made on 21 July 1987 directed its sale, but the order remained unimplemented. The property was later subject to a Croydon local land charge securing the cost of repairs.

On 29 December 2006 District Judge Fink, sitting in the Croydon County Court, directed that the property be sold after the appellant resisted an application to enforce the order. The appellant relied partly on a possible limitation defence and offered an indemnity. Permission to appeal was granted by Lloyd LJ. The appeal was confined to whether the unresolved status of the local charge justified withholding further directions for sale.

1. Appeal dismissed. Ward LJ held that the application concerned the exercise of discretion to give further directions implementing an order for sale made nearly 20 years earlier. Appellate interference was justified only if the district judge had been plainly wrong, in the sense of exceeding the generous ambit within which reasonable disagreement was possible. She had not done so.

2. The court accepted that the local authority’s charge was treated, under paragraph 7 of Schedule 10 of the Housing Act 1985, as taking effect as if it were a legal mortgage, with mortgagee-like powers and remedies of sale, subject to the assumption that the provision remained in force. The court did not decide whether the charge had become statute-barred under section 15 of the Limitation Act 1980, or whether the correspondence amounted to an acknowledgement.

3. Those issues did not justify delaying the sale. Ward LJ observed that correspondence sent after expiry of the limitation period would have no effect by virtue of section 29(7) of the Limitation Act 1980, but left the wider limitation issue to be determined on another occasion. An order requiring vacation and permitting sale did not prevent either party from applying under section 50 of the Law of Property Act for the charge and encumbrance to be dealt with by the court. Under practice direction 40 of the Civil Procedure Rules, disputed monies could also be paid into court to abide the outcome.

4. Arden LJ agreed, adding that the limitation argument created a catch-22: either there had been no acknowledgement and there was no obstacle to sale, or the limitation period ran much later, which still did not justify holding up the sale. Smith LJ agreed with both judgments and added nothing. The application was refused.

• Croydon County Court: On 29 December 2006 District Judge Fink directed that the property be sold forthwith after vacation by the appellant.
• Court of Appeal (Civil Division): The appeal was confined to the local land charge issue and was dismissed: [2007] EWCA Civ 1165.