Brierley v Otuo & Ors [2023] EWHC 919 (Ch) (21 April 2023)

Brierley v Otuo & Ors [2023] EWHC 919 (Ch) (21 April 2023)

Once the underlying debts secured by the charging orders have been discharged, the claimant's entitlement to recover costs and expenses of sale from the defendants personally ceases; the order for sale cannot stand, and the claimant cannot recover LCR or OXR costs except from the proceeds of sale while the security subsists.

Citation
[2023] EWHC 919 (Ch)
Parties
Claimant: David Raymond Brierley; First Defendant: Frank Otuo; Second Defendant: Ruth Otuo; Third Defendant: Jason Adu-Gyamfi; Fourth Defendant: Jayana Thenuara
Jurisdiction
England and Wales
Judgment Date
21 April 2023
Procedural Posture
Property Trusts and Probate Litigation / Post Judgment Applications and Consequential Orders
Outcome
Order for sale stayed; claimant's application for release from undertaking granted as consequential to stay; claimant not entitled to recover LCR or OXR costs personally from defendants.
Legal Topics
Charging Orders, Costs Recovery, Order for Sale, Redemption of Security, Detailed Assessment of Costs
Property Law Trusts Civil Procedure Charging Orders Costs Recovery Order for Sale Redemption of Security Detailed Assessment of Costs

Case Brief

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Parties

David Raymond Brierley

Claimant

Frank Otuo

First Defendant

Ruth Otuo

Second Defendant

Jason Adu-Gyamfi

Third Defendant

Jayana Thenuara

Fourth Defendant

Procedural Posture

Property Trusts and Probate Litigation / Post Judgment Applications and Consequential Orders

Legal Issues

  1. 1 Whether the claimant is entitled to recover costs and expenses of sale after discharge of charging orders
  2. 2 Whether the claimant can enforce the order for sale after discharge of underlying debts
  3. 3 Whether costs incurred after the undertaking are recoverable

Ratio Decidendi

Once the underlying debts secured by the charging orders have been discharged, the claimant's entitlement to recover costs and expenses of sale from the defendants personally ceases; the order for sale cannot stand, and the claimant cannot recover LCR or OXR costs except from the proceeds of sale while the security subsists.

Court Disposition

Order for sale stayed; claimant's application for release from undertaking granted as consequential to stay; claimant not entitled to recover LCR or OXR costs personally from defendants.

Orders

  • Stay of paragraph 8 of Le Poidevin order (order for sale of 311 Leigham Court Road) granted.
  • Claimant's undertaking released upon making stay order.