Luke Nelson successful on appeal for an intervenor in financial remedy proceedings
24th November 2023
3PB family and private client barrister Luke NelsonLuke NelsonCall: 2017 (pictured here) successfully appealed an earlier judgment in financial remedy proceedings. Luke's client was the intervenor: the beneficiary of a charging order arising out of a personal injury award due to historical sexual abuse by her uncle, the husband in the present proceedings. He is now serving a custodial sentence for her rape. The appeal was heard in Birmingham before HHJ Ingram, and Luke was instructed by Elizabeth Rimell of law firm Scaiff LLP.
The charging order was secured against the family home, owned jointly by the husband and wife. Luke’s client issued concurrent civil enforcement proceedings for an order for sale arising out of the charging order which were joined to the substantive proceedings. The wife attempted to argue that the court should transfer her husband's beneficial interest in the family home to her under the Matrimonial Causes Act, despite it being extinguished by the charging order. The Judge at first instance had ordered that this should happen. The intervenor appealed, on Luke’s advice.
The issues raised in the appeal were:
- Distinction between computation and distribution in financial remedy proceedings, as set down in Charman v Charman (No. 4)
- Application of TOLATA to order for sale, in respect of legal charge
- Application of Re Citro; Lloyds Bank v Byrne & Barclays Bank v Hendricks
- Application of Charging Orders Act and CPR 73.10C to orders for sale running concurrently with financial remedy proceedings
Luke was successful on all four grounds of appeal. The original order was replaced with an order for sale of the family home in six months, with half of the proceeds passing to the intervenor in part-payment of the charging order and the intervenor’s costs paid in full, with a full indemnity for the wife to enable a costs clawback from the husband. Luke’s client can finally, after a lifetime of struggle, obtain the compensation due to her for her uncle’s abuse.
If you wish to contact Luke, please email him at [email protected]. If you want to instruct Luke, or see about his availability, please contact his clerk Rob Leonard on [email protected] or by calling him on 01202 292102.