library
Howell Jones' Litigation Team succeed is securing charging order in family case
08 July 2011
Our Family Team acted for a client who had secured a substantial costs order in family proceedings. The client brought an application to secure the costs by way of charging order. The Litigation Team initially provided advice on the process and were ultimately retained to represent the client at final hearing.
At the eleventh hour the Defendant opposed the application on the premise that he had appealed to the Court of Appeal against the costs order and that therefore our client's application should either be dismissed or that she should only have the benefit of an interim charging order pending the outcome of the appeal.
There were two propositions that the Court placed under consideration. Firstly whether an interim charging order afforded our client with sufficient security. Secondly, whether there was a 'live' appeal. We argued both points and persuaded the Court that an interim charging order did not afford as much protection as a final charging order by virtue of the land registration legislation and that, a fee stamp on an Appeal Notice, does not have the effect of making the appeal 'live' but instead an appeal could only be considered 'live' when issued out of the Civil Appeals office.
To provide reassurance we also advised our client and offered to agree an order (or give an undertaking) not to enforce the charging order whilst the appeal (if any) was being pursued or without further order of the Court. The Court agreed this measure, requiring the appeal to be made within 14 days and leaving our client at liberty to apply for a further order permitting her to proceed with an application for an order for sale.
The conclusion was that our arguments were successful and a final charging order was secured.
Andrew Petchey, Partner, Litigation Team
