Kirsten Elaine Mcgowan v Marie Bernadette Potter

Mr David Halpern KC :

1. These proceedings require the court to determine the relationship between (i) section 23 (c) of the County Courts Act 1984 (“ ”), which gives jurisdiction to enforce any charge where the amount owing does not exceed the county court limit (currently £350,000) and (ii) CCA 1984 sections 90(3) and 91(8) of the Law of Property Act 1925 (“ ”), which gives the county court jurisdiction to exercise the powers under those sections where the amount charged does not exceed £30,000. LPA 1925

2. The Claimant appears by Mr Jonathan Edwards of counsel. The Defendant is a litigant in person but has been assisted by her McKenzie friend, Mr Martin Poupard. Although a McKenzie friend has no right of audience, I have permitted Mr Poupard to address me, for three reasons: firstly because the issues before me are issues of pure law and are of some complexity, secondly because Mr Poupard is a retired solicitor who is acting pro bono and thirdly because Mr Edwards does not object. The facts

3. This is yet another cautionary tale about the financial consequences of neighbour disputes for those without deep pockets. The current proceedings arise out of previous proceedings between the parties over a shared driveway. This resulted in an order made on 26 August 2020 requiring the Defendant to pay the Claimant £30,452.95 damages plus £27,000 costs. The Defendant failed to pay all or any of these sums. Needless to say, the amount due to the Claimant continues to rise as interest accrues and more costs are incurred.

4. On 30 December 2020 the County Court Money Claims Centre made a final charging order in the sum of £69,351.07 on the Defendant’s property at 25 Bennetts Avenue, Shirley CR0 8AL, title to which is registered at HM Land Registry under title number SY305829 (the “ Property ”). There was no appeal against that order.

5. On 13 May 2021 the Claimant issued a Part 8 Claim in the County Court at Croydon (number H00CR360) to proceed with an order for sale of the Property. There was a remote hearing before Deputy District Judge Turner on 15 December 2021, attended by the Claimant’s representative but not by the Defendant. This resulted in an order dated 29 December 2021 (but varied under the slip rule on 19 January 2022) (the “ Order ”). The Order provides (inter alia) as follows: i) It was not to take effect if the Defendant paid £77,373,56 by 28 January 2022. ii) The Property was to be sold for not less than £575,000, with the Claimant’s solicitor to have conduct of the sale. (The minimum price was later reduced.) iii) Paragraph 4 states : “ To enable the Claimant to carry out the sale, there be created and vested in the claimant pursuant to section 90 of the Law of Property Act 1925 a legal term in the property of 3000 years. ” iv) The Defendant was required to give vacant possession by 25 February 2022.

6. There has been no appeal against the Order which is accordingly binding on the Defendant, subject to the issues whether it was made ultra vires. The Defendant now seeks to challenge the Order on various additional grounds, but in my judgment she is not permitted to do so, because these points should have been taken (if at all) by way of appeal against the Order. In any event, these further grounds go beyond the preliminary issues which I am now hearing,

7. The Defendant failed to give possession and on 26 April 2023 a warrant for possession was enforced, resulting in her being evicted. The Property has not yet been sold and none of the amount due has been paid.

8. In October 2024 the Defendant first challenged the Order as being ultra vires. This resulted in the Claimant issuing the current Part 8 Claim in the High Court on 23 December 2024, seeking an order under LPA 1925 s.90 creating and vesting in her a legal term of 3,000 years in the Property in order to enforce the Order. The Claimant originally conceded that paragraph 4 of the Order was beyond the powers of the county court, and it was for this reason that the current proceedings were issued.

9. With the Master’s permission, the Defendant has counterclaimed for extensive relief, alleging (inter alia) that the Claimant has committed a trespass in taking possession and is in breach of her duties as mortgagee in possession.

10. On 19 November 2025, following the Claimants’ change of legal representation, Master Clark permitted the Claimant to withdraw the admission referred to in paragraph 8 above. The consequence is that, on her case, the Claimant no longer needs any relief; in effect the real claimant is now the Defendant. In the circumstances, the Defendant should make submissions first. However, both sides have prepared for this hearing on the basis that the Claimant’s submissions would be made first, and both asked to proceed on that basis.

11. The Master’s order of 19 November 2025 directed the trial of the following preliminary issues: i) Whether all or any part of the Order was in excess of the county court’s jurisdiction; and ii) If so, whether that renders the Order void or voidable and, if so, the effect of any steps taken by the Claimant pursuant to the Order.

12. It is these two preliminary issues which are now before me. The issues which are raised in the counterclaim are wholly or largely dependent upon the Defendant succeeding on both preliminary issues. Accordingly, they do not arise at this stage and I have therefore been able to state the facts extremely briefly. The first preliminary issue: did the county court have power to make the Order?

13. The Defendant has realistically accepted that the charging order is valid and is enforceable by an order for sale, but contends that the county court did not have jurisdiction to make that Order. Her argument is as follows: i) The charging order takes effect as an equitable charge and is enforceable by order under ss.90 and 91 of the LPA 1925 . ii) The court was exercising two different jurisdictions when it made an order for sale. Under s.23 (c) of the CCA 1984 the county court has power under its “ equity jurisdiction ” to enforce a charge where the amount owing does not exceed the county court limit, which is currently £350,000. However, it is a necessary for the Claimant to obtain a 3,000-year lease before it can sell, and this involves an exercise of the county court’s statutory jurisdiction under ss.90 and 91, which is limited to orders in respect of debts not exceeding £30,000. iii) I should follow the plain meaning of ss.90 and 91, which limit the county court’s jurisdiction to the enforcement of charging orders where the sum does not exceed £30,000.

14. I do not accept these submissions, largely for the reasons given by Mr Edwards. In my judgment the first preliminary issue raises two questions: i) What jurisdiction is the court exercising when it makes an order for sale to enforce a charging order? and ii) Does the county court have the necessary jurisdiction? The jurisdiction to order sale to enforce a charging order

15. The starting point is section 3(4) of the Charging Orders Act 1979 : “Subject to the provisions of this Act , a charge imposed by a charging order shall have the like effect and shall be enforceable in the same courts and in the same manner as an equitable charge created by the debtor by writing under his hand.” It was common ground before me that there are no provisions to the contrary in the Act .

16. In Tennant v Trenchard (1869) LR 4 Ch App 537 at 542 Lord Hatherley LC said: “it seems, on the whole, to be settled that if there is a charge simpliciter, and not a mortgage, or an agreement for a mortgage, then the right of the parties having such a charge is a sale and not foreclosure.”

17. An equitable charge which is not made by deed does not give the chargee a legal estate in the mortgaged property: LPA 1925 s.85 . Hence it is necessary to apply to court for an order for sale. In Ladup Ltd v Williams & Glyn’s Bank plc [1985] 1 WLR 851 at 855, Warner J said: “There is no doubt that the primary remedies of a person entitled to such an equitable charge are to apply to the court for an order for sale or for the appointment of a receiver. An equitable chargee, since he has neither a legal estate nor the benefit of a contract to create one, cannot foreclose or take possession [citations omitted]. That is subject to section 90 of the Law of Property Act 1925 , which confers on the court powers ancillary to its power to make an order for sale in reference to “an equitable mortgage on land,” an expression which, in this context, by virtue of section 205 (l)(xvi) of the Act , includes an equitable charge.” This passage confirms, firstly that the court is exercising an inherent jurisdiction and secondly that the powers under s.90 are ancillary to that jurisdiction.

18. S.90 of the LPA 1925 , as originally enacted, stated: “ Realisation of equitable charges by the court (1) Where an order for sale is made by the court in reference to an equitable mortgage on land (not secured by a legal term of years absolute or by a charge by way of legal mortgage) the court may, in favour of a purchaser, make a vesting order conveying the land or may appoint a person to convey the land or create and vest in the mortgagee a legal term of years absolute to enable him to carry out the sale, as the case may require, in like manner as if the mortgage had been created by deed by way of legal mortgage pursuant to this Act , but without prejudice to any incumbrance having priority to the equitable mortgage unless the incumbrancer consents to the sale. (2) This section applies to equitable mortgages made or arising before or after the commencement of this Act , but not to a mortgage which has been over-reached under the powers conferred by this Act or otherwise.”

19. S.91 of the LPA 1925 , as originally enacted, stated: “ Sale of mortgaged property in action for redemption or foreclosure (1) Any person entitled to redeem mortgaged property may have a judgment or order for sale instead of for redemption in an action brought by him either for redemption alone, or for sale alone, or for sale or redemption in the alternative. (2) In any action, whether for foreclosure, or for redemption, or for sale, or for the raising and payment in any manner of mortgage money, the court, on the request of the mortgagee, or of any person interested either in the mortgage money or in the right of redemption, and, notwithstanding that— (a) any other person dissents; or (b) the mortgagee or any person so interested does not appear in the action; and without allowing any time for redemption or for payment of any mortgage money, may direct a sale of the mortgaged property, on such terms as it thinks fit, including the deposit in court of a reasonable sum fixed by the court to meet the expenses of sale and to secure performance of the terms. … (6) In this section "mortgaged property" includes the estate or interest which a mortgagee would have had power to convey if the statutory power of sale were applicable. (7) For the purposes of this section the court may, in favour of a purchaser, make a vesting order conveying the mortgaged property, or appoint a person to do so, subject or not to any incumbrance, as the court may think fit; or, in the case of an equitable mortgage, may create and vest a mortgage term in the mortgagee to enable him to carry out the sale as if the mortgage had been made by deed by way of legal mortgage.”

20. I make the following observations on ss.90 and 91: i) The opening words of s.90(1) (“ Where an order for sale is made by the court ”) show (as Warner J held) that the power to order sale does not derive from s.90 but is an inherent part of the court’s jurisdiction. S.90 provides ancillary powers in support of that jurisdiction. ii) The opening words of s.91(2) (“ in any action… for sale … ”) make it clear that that subsection extends to an order for sale at the request of an equitable mortgagee, notwithstanding the narrower words of the heading to the section (“ Sale of mortgaged property in action for redemption or foreclosure ”). S.91(2) , like s.90(1) , presupposes an inherent jurisdiction to order sale. iii) There is a considerable overlap between s.90 and s.91 . iv) The term “mortgage” is defined in section 205 (xvi) of the LPA 1925 as including any charge or lien on any property for securing money; accordingly ss.90 and 91 extend to equitable charges.

21. I therefore conclude that the court has an inherent jurisdiction to order sale so as to enforce a charging order. The powers granted by s.90 and s.91 are ancillary statutory powers in support of that jurisdiction, as was held by Warner J.

22. Mr Edwards also relied on ss.47 and 50 of the Trustee Act 1925 . S.47 says: “Where any court … makes an order directing the sale …of any land, every person who is entitled to … any interest in the land … and is a party to the action … shall be deemed to be so entitled … as a trustee for the purposes of this Act , and the court may, if it thinks expedient, make an order vesting the land or any part thereof for such estate or interest as that court thinks fit in the purchaser or mortgagee or in any other person …”

23. S.50 empowers the court to appoint any person to convey the land where a vesting order has been made under s.47 . These sections are usually invoked in order to enforce charging orders on beneficial interests in land, but Mr Edwards points out that the wording of s.47 (“ an order directing the sale … of any land ”) is not limited to trusts, even though it occurs in the Trustee Act. He says that the powers in ss.47 and 50 largely duplicate the powers in ss.90 and 91 of the LPA 1925 , but this is perhaps no surprise, given the duplication between ss.90 and 91. The important point is that s.47 contains no proviso equivalent to ss.90(3) and 91(8) (to which I refer below). Does the county court have the necessary jurisdiction?

24. The county court’s jurisdiction is entirely statutory: CCA 1984 s.1(1) . It is therefore necessary to identify the appropriate statute or statutory instrument which gives it jurisdiction to enforce charging orders. S.1(2) of the Charging Orders Act 1979 specifies which court has power to make a charging order, but there is no express provision as to which court has power to enforce it by an order for sale.

25. Mr Edwards submitted that it is necessary to trace the history of the statutory limits on the county court’s jurisdiction in order to put the key provisions into context.

26. Section 52 of the County Courts Act 1959 (“ CCA 1959 ”) was headed “ equity proceedings ” and provided that the county court had jurisdiction to hear seven kinds of proceedings, including: “(c) proceedings … for enforcing any charge or lien, where the amount owing in respect of the mortgage, charge or lien does not exceed the sum of five hundred pounds ”.

27. S.141(3) of the CCA 1959 stated: “The Land Charges Act, 1925, and the Land Registration Act, 1925, shall apply in relation to orders under sub section (1 ) of this section as they apply in relation to other writs or orders affecting land issued or made for the purpose of enforcing judgments, but, save as aforesaid, a charge imposed under the said sub section (1 ) shall have the like effect and shall be enforceable in the same courts and in the same manner as if it were an equitable charge created by the debtor by writing under his hand; and for the purposes of this provision the limit imposed by paragraph (c) of subsection (I) of section fifty-two of this Act on the jurisdiction of a county court shall be disregarded.”

28. On its face, the equity jurisdiction in s.52 (c) extended to the enforcement of equitable charges. This was confirmed by s.141(3) which, however, removed the upper limit in s.52 (c). It is clear that the reference to “ equity proceedings ” in the heading to s.52 is simply a shorthand description of the various kinds of proceedings which fell within s.52 .

29. Section 23 of the CCA 1984 is headed “ equity jurisdiction ” and includes the following under subparagraph (c): “proceedings … for enforcing any charge or lien, where the amount owing in respect of the … charge or lien does not exceed the county court limit.” This is identical to s.52 of the CCA 1959, save that the limit is now the county court limit, not a fixed amount. The removal by CCA 1959 s.141(3) of the upper limit was not carried over to the CCA 1984 , but in my judgment the interpretation of s.52 (c) as including the enforcement of equitable charges should continue to apply to the CCA 1984, given that there is nothing in the later statute which necessitates a different interpretation of the same words.

30. The county court limit is defined in CCA 1984 ss.145 and 147(1) as being the amount specified by Order in Council from time to time. At the date when the CCA 1984 came into force, the equity jurisdiction was limited to £30,000 by virtue of the County Courts Jurisdiction Order 1981 (SI 1981/1123) (the “ 1981 Order ”).

31. Schedule 2 to the CCA 1984 amended ss.90 and 91 of the LPA 1925 by adding the following as ss.90(3) and 91(8): “The county court has jurisdiction under this section where the amount owing in respect of the mortgage or charge at the commencement of the proceedings does not exceed the county court limit.”

32. Section 1(1) (b) of the Courts and Legal Services Act 1990 states that the Lord Chanceller may by order make provision “ conferring jurisdiction ” on county courts in relation to proceedings in which the High Court has jurisdiction. Mr Edwards observed that this enabling legislation is concerned with conferring, not restricting, jurisdiction.

33. The High Court and County Courts Jurisdiction Order 1991 (S.I. 1991/724) (the “ 1991 Order ”) is made under the power created by that Act . Paragraph 2 of the 1991 Order gives the county court jurisdiction under particular statutes where the amount does not exceed a specified sum. Paragraph 2(4) states: “The County Court shall have jurisdiction under sections 89 , 90, 91 and 92 of the Law of Property Act 1925 where the amount owing in respect of the mortgage or charge at the commencement of the proceedings does not exceed £30,000.” The Schedule to the 1991 Order provides that LPA 1925 ss.90(3) and 91(8) be amended as follows: “for the words ‘the county court limit’ is substituted ‘£30,000’.” At that stage there was no wider amendment to the 1981 Order. The equity jurisdiction therefore remained at £30,000.

34. The 1981 Order was replaced by the County Court Jurisdiction Order 2014 (SI 2014/503). This raised the equity jurisdiction under section 23 of the CCA 1984 from £30,000 to £350,000.

35. This brief history of the legislation shows the following: i) At least since 1959 (I have not gone back further) the county court has had jurisdiction to order sale by way of enforcing an equitable charge. The wording of the CCA 1984 s.23 (c) is identical to that of the CCA 1959 s.52 (c), save for the financial limit. Prima facie, it should be construed the same way. ii) The CCA 1984 amended the LPA 1925 ss.90 and 91 by expressly limiting the county court’s powers to make orders under those sections to the limit of the court’s equity jurisdiction. Not only did this make no practical difference at the time, but it also seems to me to have been unnecessary, because the limit was already in place by virtue of s.23 (c). Neither party was able to suggest a good reason for amending the LPA 1925. iii) The 1991 Order did not affect the county court’s limits of jurisdiction generally but conferred jurisdiction to make orders under particular statutes. Unlike the CCA 1984 , this was by reference to specified sums of money. Neither party was able to suggest a good reason why it was drafted by reference to fixed amounts, contrary to the policy of the CCA 1984 which was to introduce limits that could be changed by statutory instrument. iv) At the date the 1991 Order was made the limit specified in respect of ss.90 and 91 happened to be the same as the county court’s equitable jurisdiction; hence the 1991 Order made no practical difference to the jurisdiction to enforce charging orders. However that changed when the equitable jurisdiction was increased in 2014 without any corresponding increase in the jurisdiction under ss.90 and 91.

36. The only previous authority on this issue which Mr Edwards’s researches have uncovered is National Westminster Bank plc v King [2008] Ch 385 , where David Richards J said: “10 Where the charged property is in the sole name of the debtor, the jurisdiction to make an order for sale arises under the inherent jurisdiction of the court, supplemented by section 91 of the Law of Property Act 1925 . The county court limit applies in such cases, by virtue of section 23 (c) of the 1984 Act . If the statutory power is exercised, it also applies by virtue of section 91(8) of the 1925 Act and article 2(4) of the High Court and County Courts Jurisdiction Order 1991 (SI 1991/724). The court also frequently exercises the powers under section 90 of the 192.5 Act to make vesting orders or other orders to facilitate a sale: see Ladup Ltd v Williams & Glyn's Bank plc [1985] I WLR 851, 855. Again, the exercise of these powers is subject to the county court limit: section 90(3) of the 1925 Act and article 2(4) of the 1991 Order. Sections 90(3) and 91(8) of the 1925 Act were added by paragraph 3 in Part II of Schedule 2 to the 1984 Act . 11 Where the charged property is in joint names, for example the debtor and his or her spouse, the charge attaches only to the debtor's beneficial interest in the property and the jurisdiction to enforce the charging order arises under section 14 of the Trusts of Land and Appointment of Trustees Act 1996 . By virtue of article 2(1)(p) of the 1991 Order, as inserted by article 2(3) of the High Court and County Courts Jurisdiction (Amendment) Order 1996 (SI 1996/3141), county courts have an unlimited jurisdiction under section 14 . It has been suggested that this leads to the anomalous position that a county court has a limited jurisdiction in the generally simple case of a charge over a property in the debtor's sole name but an unlimited jurisdiction in the generally more complex case of properties in joint names. Some support for this may be derived from the presence in the 1991 Order of article 2(4) restricting jurisdiction under sections 89 to 92 of the 1925 Act and the absence of an equivalent provision for the enforcement of charges under section 14 of the 1996 Act . 12 This issue does not arise for decision in this case, because the property in question is in the sole name of the debtor and section 23 (c) of the 1984 Act clearly applies to the claim to enforce the charge. I should however say that, in my view, the apparent anomaly does not exist. Section 14 of the 1996 Act confers a variety of powers exercisable by the court on the application of a wide variety of applicant. In contrast, section 23 (c) is confined to the enforcement of charges. In my view, the general jurisdiction conferred on county courts by article 2(1)( p) of the 1991 Order, which is secondary legislation, is subject to the specific limit on the enforcement of charges contained in section 23 (c), which is primary legislation. It would seem that this is the view taken in the Civil Procedure Rules: see the sentence in parenthesis in CPR r 73.10(2) and paragraph 4.1 of the Practice Direction supplementing CPR Pt 73, neither of which distinguishes between the enforcement of charging orders over properties in the debtor's sole name and properties in joint names.”

37. I make the following observations on King : i) David Richards J refers at [10] to s.91 , whilst at [12] he refers to s.23 (c). However, at that time the limit of the equity jurisdiction was £30,000 and it was therefore unnecessary for him to reconcile the two provisions. ii) Article 2(1)(p) of the 1991 Order gives the county court jurisdiction under ss.13 and 14 of the Trusts of Land and Appointment of Trustees Act 1996 , “ whatever the amount involved in the proceedings and whatever the value of the fund or asset connected with the proceedings ”. The conclusion at [12] is that this is delegated legislation which cannot override the county court limit in s.23 (c), which is primary legislation.

38. CPR r.73.10C deals with the court’s jurisdiction but the rule does not provide an answer to the preliminary issue before me. The note in the White Book at 73.10C.2 refers to s.23 (c) but not to ss.90 or 91. Practice Direction 73 includes the following: “4.1 The County Court has jurisdiction to determine a claim under rule 73.10C for the enforcement of a charging order if the amount owing under the charge does not exceed the County Court limit. 4.1A A claim under rule 73.10C is a proceeding for the enforcement of a charge, and section 23 (c) of the County Courts Act 1984 provides the extent of the County Court’s jurisdiction to hear and determine such proceedings.”

39. I note that there is no reference to ss.90 and 91. I attach little weight to CPR 73, firstly because the CPR cannot override the relevant statutes and statutory instruments and secondly because the Supreme Court has left undecided the relevance of a settled understanding when construing a statute: Zedra Trust Company (Jersey) Ltd v THG plc [2026] UKSC 6 at [165-166].

40. The question of jurisdiction is helpfully discussed in Falcon Chambers’ Charging Orders on Land (2 nd edition), where the following conclusion is reached at paragraph 6.22: “given that the clear intention behind the increase in the county court limit was to broaden the number of claims in the lower courts, it seems unlikely that the county court would now decline jurisdiction where the amount owing is less than £350,000. Indeed, in the authors' experience, the point is not generally taken. On a strict view, however, the point remains undetermined”.

41. There is a brief mention of the point in Fisher & Lightwood’s Law of Mortgages (2019) paragraph 12.35, which says that the county court’s jurisdiction is limited to £30,000, but a footnote makes it clear that this is based on s.23 (c), not ss.90(3) ; it would follow that the figure has not been updated since 2014.

42. In construing the relevant statutes and statutory instruments, I apply the guidance given by the Supreme Court: i) In News Corp UK & Ireland Ltd v Revenue and Customs Commissioners [2024] AC 89 Lords Hamblen and Burrows JJSC said at [27]: “It is clear that the modern approach to statutory interpretation in English (and UK) law requires the courts to ascertain the meaning of the words used in a statute in the light of their context and the purpose of the statutory provision”. ii) In R (Paccar Inc) v. Competition Appeal Tribunal (a.k.a. UK Trucks Claim Ltd) [2023] 1 WLR 2594 Lord Sales said at [43]: “The courts will not interpret a statute so as to produce an absurd result, unless clearly constrained to do so by the words Parliament has used ... As the authors of Bennion, Bailey and Norbury say, the courts give a wide meaning to absurdity in this context, ‘using it to include virtually any result which is impossible, unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial, or productive of a disproportionate counter-mischief’. The width of the concept is acceptable, since the presumption against absurdity does not apply mechanistically but rather, as they point out in section 13 .1(2), ‘The strength of the presumption … depends on the degree to which a particular construction produces an unreasonable result …’” I would add that the courts have to be careful to ensure that they do not rely on the presumption against absurdity in order to substitute their view of what is reasonable for the policy chosen by the legislature, which may be reasonable in its own estimation. The constitutional position that legislative choice is for Parliament cannot be undermined under the guise of the presumption against absurdity.”

43. I can see no good reason why Parliament should have intended to create this divergence between the jurisdiction under LPA 1925 ss.90 and 91 and the jurisdiction under CCA 1984 s.23 (c). A respectable case can be made for saying that this produces an absurd result. However, it is not necessary to go that far, and Mr Edwards did not urge me to do so.

44. In my judgment: i) The jurisdiction to enforce charging orders is part of the county court’s equity jurisdiction, which has an upper limit of £350,000. ii) The powers granted by ss.90 and 91 are ancillary powers in support of the court’s jurisdiction to enforce charging orders by sale. They are therefore also part of the county court’s equity jurisdiction and subject to the same upper limit. iii) The amendments to ss.90 and 91 were introduced in order to confer jurisdiction on the county court. The Defendant’s interpretation impermissibly involves read these amendments as limiting its jurisdiction. iv) It is true that this interpretation renders ss.90(3) and 91(8) redundant, but the Defendant’s construction would render it inconsistent with CCA 1984 s.23 (c). It would make no sense to limit the county court’s ancillary powers under these sections when the power to enforce a charging order by sale (a power which arises under the High Court’s inherent jurisdiction) is conferred on the county court by s.23 (c) up to a limit of £350,000. v) Further, a claimant could rely on ss.47 and 50 of the Trustee Act 1925 as an alternative route to ss.90 and 91, thereby bypassing the restrictions in ss.90(3) and 91(8). Second preliminary issue: if the county court had no jurisdiction, what is the consequence?

45. I shall deal with this very briefly, in view of my conclusion on the first issue that the county court did have jurisdiction.

46. The Defendant’s case is that an order made by a court which does not have jurisdiction is automatically a nullity. Mr Poupard cited several authorities in support of this proposition, but I am satisfied that it is wrong. It is not necessary to look beyond R (Majera) v Secretary of State for the Home Department [2022] AC 461 . The issue in that case concerned the validity of an order made by the First Tier Tribunal. Lord Reed said: “44. It is a well established principle of our constitutional law that a court order must be obeyed unless and until it has been set aside or varied by the court (or, conceivably, overruled by legislation). The principle was authoritatively stated in Chuck v Cremer (1846) 1 Coop temp Cott 338 , in terms which have been repeated time and again in later authorities. The case was one where the plaintiff's solicitor obtained an attachment against the defendant in default of a pleaded defence, disregarding a court order extending the period for filing the defence, which he considered to be a nullity. The order in question had been intended to give effect to an agreement between the parties, but had mistakenly allowed the defendant H longer to file a defence than had been agreed. The Lord Chancellor, Lord Cottenham, set aside the attachment, and stated at pp 342-3 : "A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it . . . It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid—whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed."

45. Three important points can be taken from this passage. First, there is a legal duty to obey a court order which has not been set aside: "it must not be disobeyed." As the mandatory language makes clear, this is a rule of law, not merely a matter of good practice. Secondly, the rationale of according such authority to court orders, as explained in the second and third sentences, is what would now be described as the rule of law. As was said in R (Evans) v Attorney General [2015] AC 1787, para 52, subject to being overruled by a higher court or (given Parliamentary supremacy) a statute, it is a basic principle that a decision of a court is binding as between the parties, and cannot be ignored or 7set aside by anyone, including (indeed it may fairly be said, least of all) the executive". This principle was described (ibid) as "fundamental to the rule of law". Thirdly, as the Lord Chancellor made clear in Chuck v Cremer , the rule applies to orders which are "null", as well as to orders which are merely irregular. Notwithstanding the paradox involved in this use of language, a court order which is "null" must be obeyed unless and until it is set aside.”

47. Mr Poupard relied on some divorce cases to the contrary, but those cases predated Majera and are no longer good law, even in the matrimonial context: Lord Chancellor v 79 Divorced Couples [2024] EWHC 3211 (Fam) at [34] per Sir Andrew McFarlane P. Disposition

48. I therefore conclude as follows: i) The county court has jurisdiction to enforce a charging order by sale where the amount owing does not exceed the limit of its equity jurisdiction, which is £350,000. The Order was therefore validly made. ii) If I am wrong on the first preliminary issue, I would have held that the Order was not a nullity but was binding unless and until set aside. I would have granted a declaration that it be set aside, and would have adjourned the proceedings to the County Court under CCA 1984 s.40(2) , thereby giving it jurisdiction so that it could decide whether or not to make a fresh order for sale.