Clarke v Coutts & Co (A Firm) [2002] EWCA Civ 943 (17 June 2002)

Clarke v Coutts & Co (A Firm) [2002] EWCA Civ 943 (17 June 2002)

The making of a charging order absolute during the period of an interim order under section 252(2) of the Insolvency Act 1986 without leave of the court is a continuation of execution and is prohibited. The statutory requirement is mandatory, and in the absence of retrospective leave, the charging order absolute must be set aside. The court does not have discretion to refuse to set aside such an order.

Citation
[2002] EWCA Civ 943
Parties
Claimant/appellant: David William Clarke; Defendant/respondent: Coutts & Co (A Firm)
Jurisdiction
England and Wales
Judgment Date
17 June 2002
Procedural Posture
Civil Appeal / Appeal From High Court (queen's Bench Division) to Court of Appeal
Outcome
Appeal allowed
Legal Topics
Individual Voluntary Arrangement (iva), Interim Order, Charging Order, Execution Against Property, Retrospective Leave, Discretion to Set Aside Orders
Insolvency Law Civil Procedure Individual Voluntary Arrangement (iva) Interim Order Charging Order Execution Against Property Retrospective Leave Discretion to Set Aside Orders

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Parties

David William Clarke

Claimant/appellant

Coutts & Co (A Firm)

Defendant/respondent

Procedural Posture

Civil Appeal / Appeal From High Court (queen's Bench Division) to Court of Appeal

Legal Issues

  1. 1 Whether making a charging order absolute during the period of an interim order under section 252(2) of the Insolvency Act 1986 without leave is valid
  2. 2 Whether the court has discretion to refuse to set aside a charging order absolute made in breach of section 252(2)

Ratio Decidendi

The making of a charging order absolute during the period of an interim order under section 252(2) of the Insolvency Act 1986 without leave of the court is a continuation of execution and is prohibited. The statutory requirement is mandatory, and in the absence of retrospective leave, the charging order absolute must be set aside. The court does not have discretion to refuse to set aside such an order.

Court Disposition

Appeal allowed

Orders

  • Judge's order set aside
  • Charging order absolute set aside