Manolete Partners PLC v Ian Russell White

An order may require a judgment debtor to access pension funds where it does not restrain access to the pension. The court may also require proportionate notification of events concerning the realisation of an underlying pension asset, where that information is needed to police the order and facilitate enforcement. On an application for permission to appeal, the court must consider whether the proposed appeal has a real prospect of success or whether there is some other compelling reason for it to be heard. Judicial comity supported following the unanimous first-instance approach to the construction of the statutory pension restriction.

The applicant, a judgment creditor, sought final terms for an order requiring the respondent to draw down his remaining occupational pension fund. The proposed order also required notice of material events concerning the sale of commercial property which was effectively the pension scheme’s sole asset.

The respondent opposed the additional policing provisions and sought permission to appeal the substantive order. He argued that section 91(2) of the Pensions Act 1995 prevented the order and that the court had taken an irrelevant consideration into account when exercising its discretion under the Blight v Brewster jurisdiction. The court determined the form of order and refused permission to appeal.

1. The court approved an order requiring the respondent to notify the applicant of a nominated sterling UK bank account and to exercise, so far as necessary, his rights under the pension scheme rules or general law to draw down the entire remaining pension fund. The order did not restrain access to the pension; it required access so that the judgment creditor could seek enforcement against funds once drawn down. Section 91(2) of the Pensions Act 1995 therefore did not prevent the order.

2. It was necessary and appropriate to include policing provisions requiring notification, within 72 hours of becoming aware of the relevant information, of the marketing of the Swansea property, its asking price, the conveyancing solicitors, accepted and other offers, exchange of contracts and completion. Those provisions were directed to enabling the applicant to police the order and prepare enforcement steps. The fact that the order concerned a pension fund rather than a direct order for sale of land did not make the analogy with sale-order policing provisions inapplicable.

3. Permission to appeal was refused. There was no real prospect of success on the section 91 point. The court also found no compelling reason for an appeal, given the apparent unanimity of first-instance judges on the issue. The practice of judicial comity ordinarily supported following another first-instance decision on a difficult statutory question unless convinced it was wrong.

4. Permission was also refused on the discretionary ground. The source of the pension fund’s principal asset, including the fact that it had been acquired with company funds, was not an irrelevant consideration. The weight to be given to that factor was for the trial judge.

The judgment records an earlier substantive judgment and order in the same proceedings, including [2023] EWHC 567 (Ch). The present judgment settled the form of order and refused permission to appeal. Any further application for permission could be made to the Court of Appeal.