Neutral
Citation Number [2017] EWHC 1255 (Ch)
IN THE HIGH COURT OF JUSTICE Claim No:
HC-2013-00255
CHANCERY DIVISION (formerly
HC11C01483)
Master Teverson
23 May 2017
In the Matter of The Shri Guru Ravidass Sabha Southall
BETWEEN:-
(1) MANJEET RAI
(2) RAMJI CHANDER
(3) SARWAN SINGH MAHEY
(4) INDERJIT SONDI
(5) MANOHAR KHUTTAN
(6) SURJIT SAROAY
Claimants
-and-
(1) JOG RAJ AHIR
And 21 others
(The Executive Committee of the
Sabha)
First
Defendants
-and-
(23) CHUNI LAL CHAMBER
And 10 others
(The Trustees of the
Sabha)
Second
Defendants
AND
IN THE HIGH COURT OF JUSTICE Claim No:
HC-2016-003033
CHANCERY DIVISION
BETWEEN:-
MR JOG RAJ AHIR and 21
Others
Claimant
-and-
(1) MR RAMJI DASS CHANDER
(2) MRS GOVINDRA RANI
CHANDER
Defendants
AND
IN THE HIGH COURT OF JUSTICE Claim No:
HC-2016-003034
CHANCERY DIVISION
BETWEEN:-
MR JOG RAJ AHIR and 21
others
Claimant
-and-
MR MANOHAR KUTTAN
Defendant
AND
IN THE HIGH COURT OF JUSTICE Claim No:
HC-2016-003035
CHANCERY DIVISION
BETWEEN:-
MR JOG RAJ AHIR and 21
others
Claimant
-and-
MR SARWAN SINGH
(Aka Saran Singh Mahay)
Defendant
Hearing 3
April 2017
Roger Bartlett of counsel instructed by Bonningtons
Solicitors for the First Defendants in HC-2013-00255 and for the Claimants in
HC-2016-003033, HC-2016-003034, and HC-2016-003035
Clive Moys of counsel instructed by Lock and Marlborough
Solicitors for Mr Sarwen Singh
Mr Chander in person
T J Clarke of counsel instructed by Nath Solicitors for Mrs
Chander
Mr Khuttan in person assisted by Adam Arshad as a McKenzie
friend
JUDGMENT
MASTER TEVERSON:-
1.
This is my reserved judgment following the hearing before me on 3 April
2017.
2.
I have before me three Part 8 claims each seeking to enforce against
different Defendants final charging orders made on 8 March 2016 in claim number
HC-2013-00255. I shall refer to that claim as the original proceedings. I also
have before me five applications in the original proceedings to make final a
second round of interim charging orders made on 16th February 2017.
The Claimants in the three Part 8 claims were the First Defendants in the
original proceedings.
3.
The original proceedings were ‘charity proceedings’ under s115(8) of the
Charities Act 2011. The proceedings related to the internal affairs of Shri
Guru Ravidass Sabha, an unincorporated registered charitable association whose
activities centre upon a temple in Southall.
4.
The Claimants in the original proceedings were Manjeet Rai (“the First
Claimant”), Ramji Chander (“the Second Claimant”), Sarwan Singh Mahey (“the
Third Claimant”), Inderjit Sondhi (“the Fourth Claimant”), Manohar Khuttan
(“the Fifth Claimant”) and Surjit Saroay (“the Sixth Claimant”). I shall refer
to those individuals throughout this judgment using their designation in the
original proceedings.
5.
The First group of Defendants in the original proceedings were the twenty
two members of the executive committee. The Second group of Defendants were the
eleven trustees of the Sabha. I shall refer to them respectively as “the First
Defendants” and “the Second Defendants”.
6.
The substantive proceedings were tried over some six and a half days in July
2014. The Claimants’ claims were dismissed. The Claimants were ordered to pay
the First Defendants’ costs of and incidental to the claim on the standard
basis. They were ordered to pay the Second Defendants costs on the indemnity
basis. The order of the court dated 5th August 2014 provided that
the First and Second Defendants were entitled to be paid their costs of and
incidental to the claim so far as not recovered from the Claimants out of the
funds of the Sabha on the indemnity basis.
7.
The Claimants were ordered to pay to the First Defendants the sum of
£75,000 on account of their costs by 6th October 2014 and to pay to
the Second Defendants the sum of £120,000 on account of their costs also by 6th
October 2014. No payment of those interim costs was made.
8.
The First and Second Defendants were represented by separate solicitors
and counsel in the substantive proceedings. They have each taken their own
steps to enforce the costs orders in their favour. The history of the
subsequent proceedings in the original proceedings is helpfully set out in
paragraphs 7 to 13 (inclusive) of the skeleton argument of Roger Bartlett,
counsel for the First Defendants who are the Claimants in the three Part 8
claims before me. The following paragraphs make heavy use of that summary.
9.
The First Defendants obtained interim charging orders on 9th
October 2014 against what appear to be the homes of each of the Claimants. The
charging orders (to which I shall refer as the first round of charging orders)
related to the order for payment of £75,000 on account of the costs of the
First Defendants in the original proceedings.
10.
The making of the charging orders final was delayed by applications made
by the First, Fourth and Sixth Claimants to the Court of Appeal to appeal both
against the substantive judgment and against the trial judge’s order for costs.
The Second, Third and Fifth Claimants did not seek permission to appeal. They
each consulted separate solicitors.
11.
On 27 January 2015 the application for permission to appeal was
dismissed on the papers. The renewed oral application for permission to appeal
was heard by Arden L.J. on 28 October 2015. It was ordered
(i)
that the application be dismissed entirely as against the First
Defendants;
(ii)
the time for payment of the interim costs order in favour of the First
Defendants be extended until 23 December 2015;
(iii)
As regards the Second Defendants, the application in relation to the
substantive judgment be dismissed but permission was granted to appeal against
the order that the costs of the Second Defendants be assessed on the indemnity
basis;
(iv)
Enforcement of the interim order for costs in favour of the Second
Defendants was stayed pending the hearing of the appeal, with permission to the
Second Defendants to apply to lift that stay.
The First, Second and Fourth Claimants subsequently decided not to pursue
the limited appeal for which permission had been given by Arden L.J. The appeal
was formally dismissed on 18th February 2016.
12.
With the exception of the First Claimant, the first round of charging
orders were made final as against all the Claimants by orders made on 8th
March 2016 by Deputy Master Nurse.
13.
The charging order obtained in relation to the First Claimant was
dismissed, it having been discovered after the original trial that the First
Claimant was already then bankrupt with the result that his liability for costs
could only be proved in the bankruptcy. A dividend of £12,842.67 has been
recovered by the First Defendants in the bankruptcy of the First Claimant and credit
for that has been given.
14.
The Third Claimant appeared in person before Deputy Master Nurse on 8th
March 2016 and opposed the application to make the charging order final as
against him on the ground either that he had never given any authority for his
name to be used as a party to the claim or that he was not the person who had
been named as the Third Claimant in that claim. These arguments were rejected
by the Deputy Master.
15.
The Third Claimant then applied to set aside the order of the Deputy
Master. That application was heard on 27th June 2016. The application
was dismissed.
16.
On 17th March 2016 the First Defendants obtained a default
costs certificate against each of the Claimants in the total sum of £145,801.47
with interest running from 6th August 2014 and £140 fixed costs with
interest on the fixed costs from 17 March 2016.
17.
The Second Defendants obtained interim charges on 17th
November 2014 in respect of the interim costs order made in their favour. They
obtained final charging orders on 7th March 2016. These charging
orders rank behind the first round of charging orders of the First Defendants.
18.
The Second Defendants subsequently obtained a default costs certificate
against each of the Claimants in the sum of £222,821.62.
19.
On 17th May 2016 the Second Defendants obtained interim
charging orders to secure the balance of their costs not secured by their
earlier charging orders.
20.
Those charging orders were made final as against the Second, Third and
Fifth Defendants on 27th June 2016. The making of those charging
orders final as against the Fourth and Sixth Defendants was postponed to a
further hearing on 20th July 2016. This was because the Fourth and
Sixth Claimants had purported to transfer their respective interests to which
the interim charging orders related. Those transactions were set aside by the
court by orders made on 20th July 2016 under s423 of the Insolvency
Act 1986. The interim charging orders made on 17th May 2016 in
favour of the Second Defendants were made final as against the Fourth and Sixth
Claimants.
21.
The Fourth and Sixth Claimants were both adjudicated bankrupt on 6
September 2016 on their own petitions. It is accepted by the official receiver
acting as the trustee in bankruptcy of the Fourth Claimant that the final
charging orders made on 8th March 2016 in favour of the First Defendants
was made pre-bankruptcy and is enforceable. The official receiver does not
agree to any further charging orders or variations to the 8th March
2016 order. The same position will presumably be adopted on behalf of the Sixth
Claimant. The charging orders in favour of the Second Defendants made final on
20 July 2016 are also ones in which execution was completed pre-bankruptcy.
22.
On 9th October 2016 the three Part 8 claims that are before
me were issued. In each case the First Defendants are the Claimants. That is,
Mr Jog Raj Ahir and the 21 other members of the Executive Committee of the
Sabha. The Claims are claim nos. HC-2016-003033, HC-2016-003034 and HC-2016-003035.
23.
Claim no. HC-2016-003033 names as Defendants, Mr Ramji Dass Chander, the
Second Claimant in the original proceedings, and his wife Mrs Govindra Rani
Chander, who was not a party to the original proceedings and who is not therefore
a judgment debtor. It seeks an order for sale of 65 Victoria Avenue, Uxbridge,
UB10 9AJ. Mrs Chander is joined as a Defendant to the Part 8 claim as the
property is registered in the joint names of Mr and Mrs Chander.
24.
Claim no HC-2016-003034 names as Defendant, Mr Manohar Khuttan, the
Fifth Claimant in the original proceedings. It seeks an order for sale of 61
Derley Road, Southall, UB2 5EN a property registered in the sole name of the
Fifth Claimant.
25.
Claim no. HC-2016-003035 names as Defendant “Mr Sarwen Singh (Aka Sarwan
Singh Mahay)”. Sarwan Singh Mahey was the Third Claimant in the original
proceedings. It seeks an order for sale of 69 Lady Margaret Road, Southall,
UB1 2PN registered in the sole name of Sarwan Singh.
26.
Each of these three Part 8 claims was assigned on issue to a different
Master. The claims ought plainly to be heard together and steps ought to have
been taken on issue to have drawn this to the attention of the court to avoid
the claims being listed for separate hearings or (as happened in one case)
being transferred to the County Court and then having to be re-transferred.
The application
for an order for sale against the Second Claimant and Mrs Chander
27.
By this application an order for sale is sought of 65 Victoria Avenue,
Uxbridge registered at HM Land Registry under title no AGL46686 in the joint
names of Mr and Mrs Chander. The price stated to have been paid on 10 January
2005 was £345,000. The property is subject to a registered charge in favour of
Lloyds Bank Plc registered on 24 April 2007. There is no evidence before the
court as to the amount outstanding under that charge. The property is estimated
by the First Defendants to be worth in the region of £539,000.
28.
According to the witness statement of Mrs Chander dated 28th March
2017, the property is the matrimonial home and she has lived in the property
since February 2005 with her four adult children and the wife of one of them.
Mrs Chander states that she and her husband also own a property in Milton
Keynes at 60 Hengistbury Lane, Tattenhoe, Milton Keynes which she says has an
approximate value of £350,000 with a mortgage of £220,000. Mrs Chander proposes
that she transfer her half legal and beneficial interest in the Milton Keynes property to Mr Chander and that in return he would transfer the equivalent
amount of his interest in 65 Victoria Avenue to her. The purpose of this
exchange would be to enable the whole of the Milton Keynes property to pay her
husband’s debts.
29.
The First Defendants recognise this as a constructive proposal but see
difficulties with it. They are concerned that if Mr Chander were to be made
bankrupt the proposed transaction might be challenged as being at an
undervalue. They invite the court instead to make an order for sale but to
suspend it for a limited period to see whether the Second Claimant can raise
funds in some other way.
30.
Mr Chander who appeared before me representing himself (although he has
previously been represented by Sinclairslaw solicitors) has made payments on
account of what he regards as his liability for one sixth share of the costs of
both the First and Second Defendants. The documents attached to Mr Chander’s
witness statement dated 31 March 2017 refer to him as having paid £10,000 on
account of his liability to the First Defendants on 28th November
2016 and a further £15,000 in December 2016. The sum of £25,000 is calculated
as being around one sixth of the costs liability of the Claimants to the First
Defendants. The Second Claimant has likewise sent a total of £35,000 to the
solicitors acting for the Second Defendants which again he calculates as being
around one sixth of the total liability of the Claimants to the Second
Defendants excluding interest.
31.
Mr Chander says in paragraph 3 of his witness statement that at an
annual general meeting Mr Jog Ahir (the current elected President of the
charity) indicated to all present that it was not the intention to pursue him
for the full extent of the costs. This appears to refer to the annual general
body meeting held on 23rd October 2016 . Item 5 of the agenda for
that meeting was “Up to date of High Court Case Report”. The understanding of
the First Defendants’ solicitors is that item no 5 on the agenda related to an
update in respect of the case seeking to recover costs.
32.
In his oral address to the court Mr Chander went rather beyond this. He said
that at the annual meeting it had been stated to members that the executive
committee was not going to let off anybody but that they did not wish to
victimise any single person. According to Mr Chander, it was said publicly that
“whoever pays his one sixth share, we will not sell his house”. Mr Chander says
that after those statements he asked for time and made the payments he did.
33.
In reply, Mr Bartlett having taken instructions, told me that Mr Ahir
did say it was not the intention to let anyone off and not the intention to
single anyone out but nobody said that Mr Chander would be let off if he paid
one sixth. Mr Bartlett submitted it would be absurd to have said that when by
the date of the annual general meeting it was known that the Fourth and Sixth
Claimants had become bankrupt. I note that in a letter dated 10th
October 2016 from Mr Robert North, Director and Head of Litigation at Sinclair
Law to the Second Defendants’ solicitors reference was made to the bankruptcies
of the Fourth and Sixth Claimants. Confirmation was sought by Mr North as to
whether there were likely to be any monies available to the Second Defendants
as a result of these bankruptcies.
34.
Mr Clarke of counsel who represented Mrs Chander suggested that this
might give rise to some form of estoppel. For the rights of the First and
Second Defendants to have been extinguished against the Second Claimant would in
my view require the court to be satisfied that a clear and unequivocal
statement was made that anyone who paid one sixth of the costs would not face
having his property sold. Even then, it might not be inequitable to allow the
Defendants to go back on that if it were subsequently found impossible to
recover their costs from the other Claimants.
35.
I do not think it would be right for me to allow Mr Chander to go beyond
the statement attributed by him to Mr Ahir in paragraph 3 of his witness
statement that it was “not the intention to pursue me for the full extent of
the outstanding costs”. I will proceed on the basis that such a statement of
intention was made by Mr Ahir to Mr Chander. It does not in my view give rise
to any form of estoppel. It does however inform how the First Defendants seek
to proceed. They do not intend or wish to single any one person out.
The
application for an order for sale against the Third Claimant
36.
This application seeks an order for sale of 69 Lady Margaret Road,
Southall a property registered in the name of the Third Claimant’s sole name.
The property is no longer subject to any prior charge. Mr Ahir’s statement
dated 9th October 2016 refers to a charge dated 15th
December 1969 in favour of Nationwide Building Society. That charge is not
shown in the Charges Register for the office copy entries current on 13
February 2017. The property is estimated by the First Defendants to be worth in
the region of £365,000.
37.
In relation to the Third Claimant, the First Defendants invite the court
to take into account that he has sought to obstruct enforcement against him.
The Third Claimant opposed the making of a charging order first by claiming that
he had been made a party to the proceeding by Birdy & Co without his
authority and secondly by claiming that he was Mr Sarwan Singh and not Mr
Sarwan Singh Mahey as shown on the claim form in the original proceedings and
they were not one and the same person.
38.
The First Defendants have also discovered that until July 2016 the Third
Claimant and his wife Jito Mahay were registered as the proprietors of the next
door property being 71 Lady Margaret Road, Southall. That property is shown as
having been registered on 8th July 2016 in the names of Jito Mahay
and his son Vijay Mahay and his son’s wife Kalvinder Mahay.
39.
The Third Claimant made a witness statement dated 31st March
2017 in answer to the order for sale application. He says he is retired and aged
74. He says he is not seeking to avoid discharging the judgment debt but is
seeking to be allowed to pursue his claim against Birdy & Co first. He
offers to pay £500 a month towards the judgment debt.
40.
The Third Claimant says he bought the house after he arrived in England
in December 1963. He says initially the house was occupied by his wife and his
own parents. He says he brought up his seven children in the house. He lives
there with his wife who is aged 72 and also retired. He says that his son’s two
eldest children live with himself and his wife at the house. One child is aged
21 and looking for employment. The other (whose age is not given) is said to
have only just found employment and pays towards their food, but nothing else.
The Third Claimant also says that two other grandchildren come to their house
early in the morning and his wife gives them breakfast and takes them to
school. He explains the reason for this is that his daughter in law, Kalvinder
Mahay, has multiple sclerosis. He says that he and his wife are extensively
involved in the care of their grandchildren.
41.
The Third Claimant says that no 71 Lady Margaret Road was purchased in
the name of himself and Mrs Jito Mahay over fifteen years ago. He says this
was because his son was self-employed at the time and unable to obtain a
mortgage although able to discharge the mortgage payments. He says that
following completion his son and his wife carried out major works to No 71 as
the property was suffering from subsidence and it was a number of years before
they were able to move in to no 71. He says it was always intended to transfer
the property into the names of his son and/or his wife once the mortgage was
discharged.
42.
I am not in a position on these applications to determine whether the Third
Claimant ever had any beneficial interest in no 71 and will leave this to be
investigated by the First and Second Defendants.
The
application for an order for sale against the Fifth Claimant
43.
The First Defendants seek an order for sale of 61 Derley Road Southall
UB2 5EN. This property is registered in the sole name of the Fifth Claimant,
Manohar Khuttan. Notice of home rights under the Family Law Act 1996 in favour
of Gian Khuttan was registered in the charges register on 15 September 2014
after judgment was handed down and the costs orders made on 6th
August 2014 but before the first round of interim charging orders dated 9th
October 2014. The property is not subject to any other prior registered charge.
The First Defendants estimate the property to be worth in the region of
£380,000.
44.
The Fifth Claimant says in his undated statement that the First
Claimant, Manjit Rai, and Rarmesh Klair promised that he would not have to pay
anything towards the actions and that they would be responsible for any costs
that he would incur. He relies on typed documents headed “To Whom It May
Concern” dated between 1st and 4th September 2014 after
the costs judgment. As Mr Bartlett points out in his skeleton argument, none of
these documents is signed by any of the other Claimants. A handwritten note
dated 31 September 2104 signed by Gian Khuttan refers to her attending a
meeting and asking Mr Manjit Rai if he and others gave her husband a promise to
indemnify him from the costs that would occur. Her note records that they
agreed but refused to sign the attached form.
45.
Any such promises of indemnity do not affect the rights of the First
Defendants under the costs order as against the Fifth Claimant. The Fifth
Claimant records his understanding in paragraph 14 of his statement that the
debt is a joint and several liability.
46.
As to his personal circumstances, the Fifth Claimant says he is able to
save £100 per month after all his household bills and necessities. This is
confirmed by a breakdown of income and expenditure prepared for the Fifth
Claimant by a firm of accountants on the instructions of his wife. Mrs Khuttan
in an email dated 21st March 2017 to the First Defendants’
solicitors says that the only asset under her husband’s name is the matrimonial
property.
Exercise of
discretion
47.
I remind myself that:-
(i)
As referred to in the notes under CPR 73.10C under the heading “Sale”,
it is one thing to make a charging order giving security to the judgment
debtor, it is another thing to order a sale of the judgment debtor’s property;
(ii)
The court has a discretion whether or not to order a sale which is
separate from the discretion whether to make a charging order final;
(iii)
Where the property is the debtor’s home, the court will have to consider
the provisions of Article 8 of the European Convention on Human Rights which
gives the right to respect for family and private life;
(iv)
To order a sale is a step of last resort only applicable where in
reality without a sale the judgment debt will not be paid;
(v)
Where the judgment debtor, is or may be a joint beneficial owner with
another, the application for an order for sale (outside bankruptcy) is made
under s14 of the Trusts of Land and Appointment of Trustees Act 1996, and s15
of that Act sets out the matters to which the court is to have regard in
determining that application.
48.
These applications are the fall out from what Mr Justice Norris referred
to as “the nuclear weapon of litigation”, when reluctantly giving permission
for the stay on proceedings to be lifted. It is not open to this court to go
behind the costs orders made by the trial judge.
49.
The effect of that order as was not in dispute before me is that each of
the Claimants were made jointly and severally liable for the costs of the First
and Second Defendants as assessed or agreed. The total amount of those costs is
now governed by the default costs certificates. The combined principal amount
due under the default costs certificates is £368,623.09. On top of that
interest at 8% falls to be added from 6th August 2014. Credit falls
to be given for the sum of £12,842.67 received as a dividend in the First
Claimant’s bankruptcy and for the sums totalling £60,000 received from the
Second Claimant.
50.
In his witness statement dated 23 March 2017, Mr Kapilla Ram the
solicitor for the First Defendants says that the total amount outstanding and
due to the First Defendants was at that date £137,596.52. He treats the sums
paid to the First Defendants totalling £37,842.67 as credited to the amounts
outstanding under the first round of charging orders leaving a balance due as
at 23rd March 2017 in respect of those charging orders of
£52,872.65.
51.
The first issue for me to decide is whether to permit those charging
orders to be enforced by orders for sale of one or more of the charged properties.
Although the amount secured by the charging orders sought by these Part 8
claims to be enforced is limited to the interim costs awards, the reality is
that each of the properties the subject of these Part 8 claims is or will be charged
with payment of the full amount of the default costs.
52.
It would in my view be a wrong exercise of my discretion to refuse to
order the sales of any of the properties and leave the unpaid balance of the
total costs of the First and Second Defendants to fall on the charity. As Mr
Bartlett submitted, members of the Sabha or the wider public who donated money
to the charity did so in order to support its charitable activities and not in
order to fund litigation. I do not think my discretion ought to be affected by
the fact that the legal fees in whole or in part of the Defendants have already
been borne by the Sabha. The judge’s order plainly contemplated that attempts
would be made to recover those costs from the Claimants. Paragraph 5 of the
order entitles the First and Second Defendants to be paid their costs “so far
as not recovered from the Claimants” out of the funds of the Sabha. I
recognise that ordering the sale of properties used as matrimonial and family
homes is a last resort but the reality of the position is that without a sale
of any of the properties there is no realistic prospect of the costs of the
First Defendants alone or together with those of the Second Defendants being
met otherwise than from the funds of the Sabha.
53.
The next issue is which property or properties should be ordered to be
sold and in what order. In a situation of this type, by which I mean
enforcement of a joint and several liability, the court is not in my view
engaged in a task of giving marks for good or bad conduct. The role of the
court is limited to controlling the enforcement process. In the case of
applications to enforce charging orders by way of sale, the control mechanism
is the requirement for the court to exercise its discretion in accordance with developed
guidance and, where applicable, statutory requirements.
54.
Applying that discretion and the requirements of section 15 of the
Trusts of Land and Appointment of Trustees Act 1996 to each of these cases, I
do not consider that the circumstances of any individual case are such as to
lead the court to refuse to order a sale. In each case, the property in
question is in use as a matrimonial home or as a family home. The sale of any
of the properties will undoubtedly cause a real and significant hardship. The
extent of the hardship will very much depend on what sum each owner or couple
will have to put towards another property. The hardship would become an
enormous one were all the costs to be borne out of the net proceeds of sale of
any one only of these three properties.
55.
I do not accept as submitted by Mr Moyes on behalf of the Third Claimant
that weighing all the factors in the balance, the interests of the First
Defendants are sufficiently protected by a final charging order in the full
amount of the debt being registered. Nor do I accept that any order for sale
should be deferred pending the bringing of separate proceedings by the Third
Claimant against Birdy & Co for breach of warranty of authority.
56.
On one view of the matter it may not be necessary to order more than one
property or each property to be sold but on a wider view it is. It would be
unfair and unjust in my view to order only one property to be sold leaving that
Claimant the task of bringing and funding a claim for contribution against
other Claimants.
57.
In my view the better and fairer course by far is to order that all
three properties be sold leaving the First and I hope Second Defendants to
proceed in the way indicated by the President of the Sabha as far as possible.
I endorse that approach. It avoids the First and Second Defendants being forced
to single out one or more of the Claimants in a way that would leave them
without funds or with only limited funds to purchase another property.
58.
The position is made more difficult as a result of the bankruptcies of
the First, Fourth and Sixth Claimants. The Second, Third and Fifth Claimants
are entitled to feel aggrieved and let down by the other Claimants, especially
as it was they who pursued an application for permission to appeal. I would
hope that by enforcement of the charging orders made final prior to the
bankruptcies of the Fourth and Sixth Claimants, that the First and Second
Defendants will do what can be done to mitigate the potential inequality of
contribution between the Claimants.
59.
In these circumstances, I am firmly of the view that the right course is
for me to make an order for sale on each of the Part 8 claims. I recognise that
in the case of the Second Claimant he has already contributed £60,000 to the
costs. On the other hand, he and his wife are in the fortunate position of
jointly owning another property together. I think it would be an incorrect
exercise of my discretion to refuse to order a sale on the ground that the
Second Claimant has already contributed £60,000 in total to the costs of the
First and Second Defendants. As I have said, it would have the potential to
increase the burden on the remaining Claimants whose assets especially in the
case of the Fifth Claimant are limited to their property.
60.
The final issue is whether I should make immediate orders for sale or
postpone or suspend the orders for a period of time.
61.
I think in each case it would be right to postpone the order for two
months to see if within that period there is a realistic prospect of any or all
of the Claimants being in a position to pay or raise a sum which the First and
Second Defendants are willing to accept as discharging them. I do not rule out
the possibility that funds might be made available from the wider community in
order to avoid the need for homes to be sold. I would in any event give each of
the Claimants and their families until 22 September 2017 before being required
to deliver up possession.
62.
As indicated at the hearing on 3rd April 2017, I will make
final as against the Second, Third and Fifth Claimants, the further interim charging
orders made on 16th February 2017. In relation to the Fourth and
Sixth Claimants it is accepted that the applications in respect of these
further charging orders post-dated the bankruptcies and cannot be made final
unless and until those bankruptcies are annulled. I shall adjourn those
applications generally with permission to restore.
