GH v H

A charging order may be sought by a party to family proceedings to secure sums which the judgment debtor is ordered to pay directly to a third party, including a child. The Charging Orders Act 1979 defines the creditor but does not prescribe who may apply. Interest accrues on unpaid periodical payments ordered in the High Court Family Division under s.17 of the Judgments Act 1838. The fixed costs regime applies to a final charging order in family proceedings, notwithstanding outdated cross-references. The court may order otherwise, but should do so sparingly. Deliberate and obstructive non-payment may justify indemnity costs.

The applicant wife sought enforcement of financial orders made following matrimonial proceedings. The respondent husband had failed to pay a £1.1 million lump sum, periodical payments for the wife, and periodical payments for the parties’ child. The lump sum was secured by a mortgage over the husband’s home. The court had made an interim charging order over the husband’s remaining interest in the property and was asked to make it final.

The judge considered whether the wife could obtain a charging order for sums payable directly to the child, whether interest accrued on unpaid periodical payments, and whether fixed costs applied to the final charging order and could be displaced. The interim order was made final.

1. Charging sums payable to the child. The Charging Orders Act 1979 defines a creditor as the person to whom payment is due, but does not state that only such a creditor may apply. FPR 40.2 and FPR 40.3 did not prevent the wife from applying to secure sums payable directly to the child.
2. Interest. The principal order was made in the High Court Family Division, despite its erroneous heading referring to the Family Court. The restriction in art.2(4) of the County Courts (Interest on Judgment Debts) Order 1991 concerns Family Court orders and does not govern High Court orders. Section 23(6) of the Matrimonial Causes Act 1973 concerns interest on a lump sum up to its due date; it does not exclude post-due-date interest under s.17 of the Judgments Act 1838. The unpaid periodical payments therefore attracted interest at 8 per cent per annum.
3. Fixed costs. The reference in FPR 28.2 to CPR 45.8 was to be read as referring to CPR 45.23. The fixed costs regime applied to a final charging order under FPR 40.8(2)(a). FPR 28.1 preserved a power to order otherwise, but the fixed regime remained the starting point. Deliberate non-payment, repeated enforcement applications and obstruction justified indemnity costs.
4. The final charging order continued in the sum of £245,569.07, plus accruing interest. Costs of £22,500 plus VAT were also charged.