SEAN LINDSAY v JARED MICHAEL O'LOUGHNANE

The High Court may use its injunctive powers under Senior Courts Act 1981, section 37(1), to require a judgment debtor to exercise pension rights so that pension funds become available to satisfy a judgment debt. The jurisdiction can extend to the whole accessible fund, subject to appropriate treatment of tax, and is not prevented by section 91 of the Pensions Act 1995 where the relevant arrangement is a personal pension plan. An order authorising a third party to act in the debtor’s place under section 39 requires established non-compliance or refusal. Anticipated default, coupled only with the debtor’s existing judgment default, is insufficient.

The claimant held a substantial unpaid judgment debt against the defendant arising from an earlier deceit claim. He sought enforcement against four pension policies held with Prudential, Royal London and Aegon.

The application was initially framed as a third-party debt order and was later amended to seek injunctive relief under section 37 of the Senior Courts Act 1981. The claimant also sought authority for a third party to give the required notices if the defendant failed to do so. The central issues were whether the court had jurisdiction to compel future pension drawdown, whether section 91 of the Pensions Act 1995 prevented that relief, and whether prospective default authority could be granted.

1. Jurisdiction to compel pension access. A third-party debt order could not presently be made because no debt was currently owed or accruing due from the pension providers. That did not prevent relief under section 37(1) of the Senior Courts Act 1981. Following the reasoning in Blight v Brewster and Bacci v Green, the court could require the judgment debtor to give notices which would enable access to pension funds.
2. Scope of relief. The jurisdiction was not confined to a tax-free 25 per cent lump sum. Where the debtor could access the whole fund at age 55, the court could in principle make an order concerning the whole fund, subject to clear provision for tax. The prospective timing of the order was also unobjectionable.
3. Pensions Act protection. Section 91 of the Pensions Act 1995 did not prevent the order. The Aegon arrangement was a personal pension plan rather than an occupational pension scheme. In any event, Bacci v Green supported the conclusion that the order would not restrain the debtor from receiving his pension.
4. Discretion. It was just, equitable and convenient to make the principal order. The unpaid judgment, continuing enforcement efforts, absence of prejudice from delay, and failure to provide full and frank evidence of impecuniosity supported relief.
5. Default authority. The court refused to authorise Mr Tate to act for the defendant at this stage. Section 39 of the Senior Courts Act 1981 and CPR rule 70.2A require established non-compliance or refusal to comply. The defendant’s existing judgment default did not establish that he would disobey the new pension-notification order.
6. Final order. The principal pension-notification order would be made in principle. The proposed default provision was excluded. The parties were directed to seek agreement on clear drafting, particularly concerning tax payments.