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  • pmw2040
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28 May 12 #333411 by pmw2040
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I''ve just found this,below..... - could it be relevant in over-turning Field v Field?

After all this is over I will know enough to be a Solicitor?!

In Blight & ors v Brewster [2012] EWHC 165 (Ch), 9 February 2012 the High Court made an order requiring a judgment debtor to exercise his right to withdraw a lump sum from the pension fund, to be used to repay the creditor. This contrasts with the statutory protection afforded to pension funds on bankruptcy. The decision sheds further doubt on the controversial decision in Field v Field [2003] 1 FLR 376 in which the court refused to make such an order.
The claimants were the victims of fraud and forgery by the defendant. They obtained judgment in 2008 and took steps to enforce the judgment debt. Among the defendant’s assets was his fund in a Canada Life pension scheme which provided that he could elect to draw down 25% of his pension fund as a tax-free lump sum. The claimants obtained a third party debt order in relation to this right.
On 24 March 2011, a District Judge discharged the third party debt order. The claimants appealed this and other parts of the order that related to certain shares owned by the defendant. The defendant sought to rely on Field v Field [2003] 1 FLR 376, in which an applicant unsuccessfully sought to enforce an order for payment by requiring the debtor to elect to take a lump sum entitlement under a personal pension scheme. The court refused to appoint a receiver or grant an injunction under s37(1) of the Senior Courts Act 1981 (SCA 1981).
Moss QC, sitting as Deputy High Court Judge, allowed the appeal and restored the third party debt order with certain amendments. He considered that the current case was analogous to Tasarruf Mevduati Sigorta Fonu v Merrill Lynch Bank & Trust Company (Cayman) Ltd [2011] UKPC 17, noting that:
the court’s jurisdiction under s37 of the SCA 1981 extends to granting an injunction or appointing a receiver to help the enforcement of a judgment;
the jurisdiction can be developed incrementally to apply old principles to new situations;
when considering the scope of the court’s jurisdiction under s37, the overriding consideration is the demands of justice;
the equitable remedy of appointing a receiver by way of execution was available in respect of “rights tantamount to ownership” (in Tasarruf Mevduati, this was a power of revocation of a trust). The appointment of an equitable receiver was not limited, as the defendant had argued, to assets that are amenable to execution at law.
Moss QC also rejected the defendant’s submission that, because of the statutory protection extended to pensions in bankruptcy law, public policy requires pensions to be treated as exceptional when it comes to execution of judgments too. He commented that a bankrupt individual surrenders all of his assets to a trustee in bankruptcy (save for certain limited exceptions) and becomes subject to certain disadvantages and restrictions (eg he cannot be a director of a company, it is more difficult to obtain credit). A judgment debtor cannot have the benefits of bankruptcy (eg protection of his pension) without its burdens. Where a debtor fails to pay his debts and does not go into bankruptcy, his assets, including his rights in his pension fund, will be amenable to the enforcement of judgments by individual creditors.
Like the Privy Council in Tasarruf, Moss QC considered the reasoning in Field to be flawed and should not be followed. There is a strong principle and policy of justice that debtors should not be allowed to hide their assets in pension funds when they had a right to withdraw monies needed to pay their creditors. Accordingly, he ordered that:
the defendant delegate to the claimants’ solicitor the power of election and that the court authorise the solicitor to make the election in the defendant’s name; and
immediately following the election, the sum payable from the pension fund be subject to a third party debt order.
Comment: The judge was prepared to exercise his jurisdiction under s37 of the SCA 1981 to release certain funds held in a pension scheme for the benefit of the judgment creditor. Up until now, there has been some uncertainty about whether this is possible. The decision will certainly be welcomed by claimants. Successful claimants should now consider the terms of any pension, in particular terms enabling an early lump sum payment to be made, when determining the defendant’s assets against which a judgment may be enforced.
Further information
This case summary is part of the Allen & Overy Litigation Review, a monthly update on interesting new cases and legislation in commercial dispute resolution.

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28 May 12 #333428 by maggie
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Judging by that I think his barrister''s on a false trail with Field .....
Where are you in the enforcement process pmw?

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28 May 12 #333429 by pmw2040
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Court hearing in 4 weeks because last one 3 weeks ago adjourned as it was just to see if Ex would be allowed to come back, should have been ''struck out'' I was told, but my Barrister capitulated to Ex''s when he quoted F v F - and ex didn''t even turn up! I have refused to sign the MOA.....but after your last post I think I realise it''s not ME who has to be called to Court?

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28 May 12 #333430 by dukey
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Questions i would ask.

Is this guy in contempt of court for refusal to attend hearings and refusing to comply with orders of court (yes he is).

Was the appeal in time, will he attend given his prior refusal to attend.

Is Field actually relevant here given Field singularly focused on maintenance, this case regards failure to pay PP`s and implement an ear marking order.

Is it beyond the jurisdiction of court to make the order made.

Would a circuit judge or high court overturn it.

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28 May 12 #333432 by pmw2040
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Good questions - will be back on line later today, but thanks and much to think about....

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28 May 12 #333454 by maggie
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Field is about someone whose divorce petition went ahead before pension earmarking/attachment was available - the appeal was about finding/failing to find a way to divide/re-assign the pension benefits .... the SIPP pension rules in the case prevented any such assignment?
Isn''t the Field appeal invalid for any divorce after 1996 because pension attachment was introduced then?

In our case the judge is varying an already made attachment order to capitalise periodical payments - the other side''s barrister seems to be appealing against
the judge''s capacity to do that?
Can''t find any relevance in Field.


Pearce v Pearce appeal judgment:
" caveat caveat
......But my essential general conclusions are:
i) On dismissing an entitlement to future periodical payments the court''s function is not to reopen capital claims but to substitute for the periodical payments order such other order or orders as will both fairly compensate the payee and at the same time complete the Clean Break.

ii) In surveying what substitute order or orders should be made first consideration should be given to the option of carving out of the payor''s pension funds a pension for the payee equivalent to the discharged periodical payments order."

When the other side''s barrister throws in a red herring/alleged precedent should your barrister ask them to demonstrate the relevance before caving?

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28 May 12 #333458 by dukey
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Hopefully one of the legal beagles will come along Maggie, from what i know the Field application was refused for technical reasons, from what i know the case was quite controversial, plus there were other options, the secured provision order was in place.

In the OP case the guy refused to pay a global PP order and to implement the attachment for the pension, and refused to reply to lawyers and court, so as is often the case the judge enforced the terms of the order and in this case decided given the guys home is beyond REMO to capitalise the PP`s knowing the guy wont pay.

And behold the dummy came out and a barrister appears on the horizon, your honor you got it wrong sir, well good luck with that, Field just does not seem applicable here, not to mention Field seems a bit odd anyway.

If you read Birds work it becomes clear that judges have way more power than we think, oops got to go ill be back with this.

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