Bandak v Howell

Care is required to keep a creditor’s Part 8 claim for an order for sale procedurally distinct from matrimonial financial remedy proceedings. It is arguable that an order determining sale while leaving a later financial remedy judge power only to give implementation directions improperly curtails the wider discretion to decide whether the creditor is entitled to a sale order. At the permission stage, the Court of Appeal may grant permission on that arguable ground without deciding the underlying entitlement.

A third-party judgment creditor sought an order for sale of a jointly owned matrimonial home occupied by the husband and the parties’ child. The creditor’s claim had originated in the Lambeth County Court, where a charging order had been made absolute, and had proceeded as Part 8 proceedings to obtain an order for sale.

On 14 December 2012, HHJ Horowitz QC, sitting in the Principal Registry Family Division, made an order for sale but adjourned directions for its implementation to the later financial remedy hearing. The issue before the Court of Appeal was whether that order wrongly confined the later judge’s discretion to implementation, instead of leaving open the question whether the creditor was entitled to an order for sale.

Lord Justice Thorpe delivered the judgment of the court. Lord Justice Jackson and Lord Justice Tomlinson agreed. The application for permission to appeal was granted.

1. Separate procedural origins. The judge had principally been exercising jurisdiction under the Matrimonial Causes Act in financial remedy proceedings. The creditor’s application was procedurally separate. It had been transferred from the Lambeth County Court after the charging order became absolute and involved Part 8 proceedings to convert that charge into an order for sale.
2. Arguable ground of appeal. The order made an order for sale and adjourned only directions concerning conduct, possession and implementation to the later financial remedy hearing. It was arguable that this curtailed the residual discretion available to the financial remedy judge. That judge should arguably have retained the wider power to determine whether an order for sale was the creditor’s entitlement, rather than being limited to implementing a sale already ordered. The court did not finally determine that issue.
3. Case-management observations. The court encouraged the parties to agree a variation of the order, suggested that any further listing could be dealt with within one hour, and indicated that Mr Howell and the judgment creditor were the only parties essential to the appeal. The wife was released from any requirement of representation on a future listing, while retaining the choice whether to attend or be represented.

Order: Application granted.

• Court of Appeal (Civil Division): On 11 April 2013, permission to appeal was granted in relation to the order made on 14 December 2012.
• Principal Registry Family Division: HHJ Horowitz QC made an order for sale and adjourned directions for implementation to the later financial remedy hearing.
• Lambeth County Court: The creditor’s money claim progressed to a charging order absolute, followed by Part 8 proceedings seeking an order for sale.