The judgment of Michael Horton KC (sitting as a deputy district judge) in AW v AH [2022] EWFC 195 raises an interesting jurisdictional question as to when the court’s powers arise to make an order under the Senior Courts Act 1981 s 39 (SCA 1981 s 39).

That section – headed 'Execution of instrument by person nominated by High Court' – provides that:

'where the High Court or family court has given or made a judgment or order directing a person to execute any conveyance, contract or other document, or to endorse any negotiable instrument, then, if that person (a) neglects or refuses to comply with the judgment or order, or (b) cannot after a reasonable enquiry be found, that court may, on such terms and conditions, if any, as may be just, order that the conveyance, contract or other document shall be executed, or that negotiable instrument shall be endorsed, by such person as the court may nominate for that purpose.'

At paragraphs [38]–[39] of his judgment Michael Horton KC refers to a decision of Mr Simon Birt KC, sitting as a deputy judge of the High Court in the Queen's Bench Division, in Lindsay v O’Loughnane [2022] EWHC 1829 (QB). In that case, the claimant sought enforcement of a number of orders that had previously been made, including orders for enforcement of a judgment debt against pension funds.

Paragraph [58] of Lindsay refers to a conflict in the authorities – between Blight & Others v Brewster [2012] EWHC 165 (Ch) (a judgment of Mr Gabriel Moss KC sitting as a deputy High Court judge) and Gee v Gee & Another [2020] EWHC 1842 (Ch) (a judgment of HHJ Paul Matthews sitting as a judge of the High Court) – as to whether the exercise of the power in SCA 1981 s 39 requires actual non-compliance to have occurred as a matter of jurisdiction arising. In other words, does there need to be default before the court can make an order under this section or can the court make such an order in anticipation that there may be such default?

The need for an order under SCA 1981 s 39 arises frequently in financial remedy cases – for example in relation to property adjustment orders and/or orders for sale where there is a concern that a party may not sign a TR1 and/or instructions to an estate agent to market a property for sale. Routinely such orders state that a party shall do X by Y date and if that party refuses or neglects to do so the relevant document(s) shall be executed by (say) a judge of the Family Court. Practitioners know to draft such an order in two stages – the first ordering a party to execute a document and not, for example, simply to transfer a property and second expressing the consequences of default – but does the jurisdiction in fact not arise until there has been such default?

In Gee v Gee the judge was satisfied (in fact it had been common ground between the parties) that (as stated at [26]) the words 'neglects or refuses to comply with the judgment or order' were jurisdictional so that 'the court cannot make an order under this section unless it is first satisfied that the test represented by those words … is met' – but the court in that case concluded the requirement was satisfied because the defendant had failed to comply with the previous order.

At paragraph [60] of Lindsay Mr Birt KC observed that the editorial notes to the White Book 2022 at 9A-138 record that an order should not be made in anticipation of a failure to execute unless the defendant has already shown by his conduct that he refuses and will refuse to execute, citing Savage v Norton [1908] 1 Ch 290. He further observed that it did not appear that this point was raised with the deputy judge in Blight, which does not record express consideration of it.

Mr Birt KC adopted this approach. He declined to include the order under s 39 on the basis that the mere fact that the defendant was a judgment debtor who has failed to honour the judgment debt, did not mean by itself that he was bound to disobey the court’s order that was sought in relation to his pension fund. He acknowledged at [64] the temptation to make the order now to include the s 39 provision, if only to save the time and costs that would be associated with a further hearing, if the defendant did not comply with it. However he said that that would overlook both the jurisdictional provision and that this was something which had not been considered a sufficient basis for making the order in Beveridge v Quinlan [2019] EWHC 424 (Ch) per Snowden J.

The editorial notes to the Family Court Practice 2023 are more equivocal. They state that if an order has been made that, say, simply requires a party to transfer their interest in a property 'it is necessary first to secure an order requiring execution of the relevant document before an order can be made under this section'. This reflects the orthodoxy referred to above but in itself does not suggest there needs to be default before jurisdiction arises.

The notes later state that it is 'normally required' that the relevant party has been given the opportunity to execute the document 'but not if it is patent that he refuses and will continue to refuse to do so' citing in support Savage v Norton and Welch v Welch [2017] EWFC B32 (a judgment of His Honour Judge Hess). This may suggest that in fact the relevant party need not in all circumstances be given the opportunity first to execute the document. The notes also state that it 'has been suggested' that if the court takes the view that the respondent is 'unlikely' to do the act being ordered, in a case of urgency, it may be proper to authorise the applicant to do it himself on the making of the original order (Ford Sellar Morris Developments Ltd v Grant Seward Ltd [1985] 29 EG 68) but the editors respectfully challenge the accuracy of this by stating that the jurisdiction only arises if there has been neglect or refusal and refer to the discussion in Lindsay v O'Loughnane. However nowhere in the notes does it state that an order should not be made in anticipation of a failure to execute unless the defendant has already shown by his conduct that he refuses and will refuse to execute.

In Welch v Welch His Honour Judge Hess referred at [5] to the fact that the procedure in 'normal cases' for pursuing an SCA 1981 s 39 application is 'clear, uncontroversial and well established' with an on-notice application and an order made directing a party to execute by a set date and stating that if they do not do so the court will make a second order authorising execution by the court. If the document is not then executed a without notice application is made to the court and a second order made authorising the court’s execution and duly so executes.

The judge at [6] then stated that where the other party is being particularly obstinate, it has traditionally been thought that the procedure can be truncated, so that only one order is necessary. He states that authority for this approach can be found inter alia in Savage v Norton where it was said that:

'I do not decide that there is no case in which the Court may make an anticipatory order, because it may be that the person ordered to transfer has in fact by his conduct already shown the Court that he does and will refuse to do the act which is ordered to be done, in which case the Court may, shewing on the face of the order that there was that refusal, make an order at once in very much the same terms as those of the order in the present case.'

His Honour Judge Hess at [7] then said that in an appeal from one of his earlier judgments in the case McCombe LJ was persuaded that there was an arguable case in support of the proposition that these obiter observations 'and thus the notes to the Red Book and the White Book, might not be regarded as good law' but noted that these arguments were not ultimately determined by the Court of Appeal.

In AW v AH Michael Horton KC did not have to determine this point. He was able to follow the approach in Lindsay and the White Book 2022 because on the facts he was 'quite satisfied' that the respondent had already shown by his conduct that he refused and will refuse to execute given that he had failed to comply with any of the court directions in these proceedings including orders to file a Form E to attend hearings. He was therefore satisfied that there was jurisdiction to make the order under s 39 and that was appropriate to do so.

But there are many cases where it may not be possible to demonstrate that by conduct a party has shown that they refuse and will refuse to execute the necessary documents (or similar). Judges in the Family Court are routinely persuaded to make such orders on an anticipatory basis often persuaded that such an order saves the time and cost that would be associated with a further hearing if the defendant did not comply with it. The question is, however, whether they have the jurisdiction to do so.