Ilya Zubarev & Anor v Ratna Singh & Anor

On 21 December 2022, following a trial before Mr Nigel Cooper KC sitting as a judge of the High Court in the London Circuit Commercial Court, King’s Bench Division, judgment was entered for the claimants against the defendants for damages for fraudulent misrepresentation and for breach of warranty. The claims related to investments made by the claimants in Integrated Health Partners Limited (IHPL) by way of a subscription for shares. It was adjudged that the defendants should pay the first claimant US$632,001.00 and the second claimant US$948,000.00. An order of costs was made against the defendants on the indemnity basis. At the ‘consequentials’ hearing on 1 February 2023 the defendants were ordered to pay pre-judgment interest of US$110,271.19 in respect of the first claimant, US$142,037.62 in respect of the second claimant and further sums for post-judgment interest and an interim payment on account of costs of £506,571.14. The defendants’ application to the trial judge for permission to appeal and a stay was refused. Permission to appeal was refused by Males LJ on 17 March 2023.

On 12 October 2023 ICC Judge Prentis struck out a petition brought by the defendants as petitioners under section 994 of the Companies Act 2006 and ordered that the defendants pay the claimants’ costs (as respondents to the petition). On 14 December 2023 the defendants were ordered to pay £274,837.63 on account of the liability for costs.

On 10 April 2024 ICC Judge Burton dismissed an application made by the defendants to set aside a statutory demand and ordered the defendants to pay costs of £23,224.

The claimants took steps to enforce the judgment obtained in the London Circuit Commercial Court first by way of examination of the defendants pursuant to CPR rule 71 and subsequently, based upon the information obtained at the examinations, by way of third party debt orders (“TPDOs”) pursuant to CPR rule 72. The provisions of CPR rule 72 and Practice Direction 72, so far as material, are set out in an appendix.

On 10 July 2024 the claimants applied in form N349 (having slightly adapted the prescribed form) against the respondents Mattioli Woods PLC and Phoenix Life Limited which are both pension providers. Both defendants held a pension with Mattioli Woods PLC and the second defendant held a pension with Phoenix Life Limited (Phoenix). The terms of the second defendant’s pension are governed by Standard Life Assurance Limited’s rules because both Phoenix and Standard Life are subsidiaries of Phoenix Group Holdings PLC.

Paragraph 3 of each application stated:

“The third party is within England and Wales and owes money to (or holds money to the credit of) the judgment debtors or will owe money to the judgment debtors subject to an auxiliary order of the court.” [The words in italics are not in the prescribed version of Form N349.]

The applications were supported by a witness statement of Matthew Bunting (in materially the same form in the case of each third party) from the claimants’ solicitors. The witness statement makes it clear that in addition to TPDOs the claimants were seeking an order “that the Defendants are to take any necessary steps to draw such benefit from the Third Party as they are entitled and/or for the solicitors for the Claimants to have authority to exercise those steps.” The power to make such an order arises under section 37 of the Senior Courts Act 1971 which provides that the court has power to “grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so.”

The witness statement in the case of Mattioli Woods PLC referred to information obtained from the defendants’ examination:

“10.

The documents produced at the CPR Part 71 Hearings included valuation reports for pensions held with the third party, showing a portfolio of £142,383.99 as of 31 March 2024 for the First Defendant and a portfolio of £153,880.65 as of 31 March 2024 for the Second Defendant.

11.

The documents further included Retirement Options Guidance Booklets dated July 2021 which respectively confirm that “benefits may be taken from your pension arrangements from age 55” and that “You can decide to draw the remaining fund out as one taxable lump sum… as much or as little as you like”, which crystallises the fund.

12.

Consequently, I view it as likely that on the Defendants notifying the third party, a debt would arise between the third party and the Defendants.”

The wording of the witness statement supporting the application in respect of Phoenix Life Limited is similar:

“10.

The documents produced at the CPR Part 71 Hearings included a valuation report for a pension held by the judgment debtor with the third party, showing a portfolio of £178,576.00 as of 29 February 2024.

11.

The documents further included a letter from Standard Life Assurance Limited dated March 2022 which makes it clear that the judgment debtor has a right to draw down on all of the moneys within this pension, subject to any necessary applicable tax, and a letter from Standard Life Assurance Limited dated June 2023, which indicates that the pension was to be transferred to Phoenix Life Limited, indicating that these are the terms that apply to the present pension.

12.

Consequently, I view it as likely that on the judgment debtor notifying the third party, a debt would arise between the third party and the judgment debtor.”

In view of the fact the claimants were seeking both a TPDO and what was described as an “auxiliary order” pursuant to section 37 of the Senior Courts Act 1981 (“section 37”), Master Davison listed the applications for an oral hearing on 4 October 2024. (In fact, in the case of Mattioli Woods, an order was made in error on the papers on 23 July 2024 and the application was heard de novo on 4 October 2024.)

Mr Digby, who appeared before me, represented the claimants and the defendants appeared in person. Their wide-ranging objections to the court making orders were dismissed with Master Davison describing their allegation of fraud or conspiracy involving court staff as “wild and implausible”. He granted interim TPDOs and the auxiliary orders which were served on the third parties. The hearing to consider whether the interim orders should be made final came back before Master Davison on 17 January 2025.

The orders made by Master Davison on 4 October 2024 relating to the Third Parties are in the same form. The order recites that:

“AND UPON the court having considered that it would be just and convenient to require the judgment debtor to take any and all necessary steps and execute any and all necessary documents to draw such benefit from the third party as the judgment debtor is entitled and that would give rise to a debt from the third party to the judgment debtor”

The operative terms of the order, so far as material, provides that:

“2.

Until [the further] hearing the third party must not, unless the court orders otherwise, pay to the judgment debtor, or to any other person, any sum of money due or accruing due by the third party to the judgment debtor.

3.

Subject to paragraph 4 below, not before 14 days and not later than 28 days from the date of this order, the judgment debtor shall take any and all necessary steps and execute any and all necessary documents to draw such benefit from the third party as the judgment debtor is entitled and would give rise to a debt from the third party to the judgment debtor.

4.

Nothing in this order shall require the third party to act in breach of its regulatory obligations arising from its management and/or administration of the judgment debtor’s pension scheme.

5.

The solicitors for the judgment creditors are authorised to execute any necessary documents on behalf of the judgment debtor for the purposes of giving effect to and/or carrying out paragraph 3 of this Order.”

At the further hearing on 17 January 2025 the defendants appeared in person again and made an application for Master Davison to recuse himself which was dismissed. Mr Digby who again appeared for the claimants, in accordance with his duty to the court, drew attention to the decision of the Court of Appeal handed down on 15 November 2024 in Manolete Partners Plc v White [2025] 1 WLR 1065. Master Davison considered that the decision in Manolete v White was potentially relevant and directed that “the Applications” be transferred to the Chancery Division of the High Court and listed to be heard before Chief Master Shuman or such Master or judge as Chief Master Shuman nominated for consideration of the following issues:

Master Davison’s order contains a recital defining “the Applications” as including the applications for auxiliary orders under section 37 and for TPDOs under CPR Part 72. Provision was made in the order for the parties to be able to file evidence, the claimants by 28 February 2025 and the defendants by 14 March 2025. He also directed that:

“4.

The Claimants are by 4:00pm on 28 January 2025 to ask by correspondence of each of the Third Parties whether the Third Party wishes to express any view in respect of the Issues or any of them, and/or (notwithstanding their earlier neutral stance) wishes to object to the Interim Third Party Debt Orders being made final, and/or wishes to attend the hearing provided for at paragraph 1 above to make submissions.

5.

The Third Parties are to endeavour to provide their response(s) to the Claimants within 14 days of the receipt of the Claimants’ requests at paragraph 4 above, and the Third Parties’ response shall be filed and served by the Claimants within 7 days of receipt.

6.

The orders of Master Davison dated 23 July 2024 and 4 October 2024 are to remain in effect and in particular the Third Parties must not, unless the court orders otherwise, pay to the Defendants, or to any other person, any sum of money due or accruing due from the Third Parties to the Defendants.”

In light of the fact that the defendants were unrepresented, Master Davison appended reasons to the court’s order:

“REASONS

i)

The Order set out above is self-explanatory. The jurisdiction to make Third Party Debt Orders in respect of pensions was established by Blight v Brewster [2012] EWHC 165 (Ch). The mechanism is to force the judgment debtor to draw down their pension as a lump sum – thus making it available for enforcement. (Ordinarily pensions are only available for enforcement when they are actually in payment and then the mechanism is by way of attachment of “earnings”. This method of enforcement – unlike a TPDO – is subject to safeguards in that only a stipulated percentage of the pension payments can be attached.)

ii)

The reasoning of the Court of Appeal in Manolete was that the statutory intention of the Pensions Act 1995 was that a member's entitlement or right to future benefits under an occupational pension scheme should remain available to provide support to that member in retirement, so that such entitlement or rights should not be capable of alienation and should be immune from attachment to pay the claims of creditor. If the pensions held by these Defendants are occupational pensions as statutorily defined then the reasoning in Manolete applies directly to them. But even if they are personal pensions, it is arguable that they, or some portion of them, should be treated analogously.

iii)

I consider that these questions are best considered in the Chancery Division. If any ancillary orders (for example for disclosure) beyond those provided for above are needed, then those can be considered by Chief Master Shuman in that Division.

iv)

The defendants would benefit from representation, and I suggest that they approach the scheme operated by the Chancery Bar Association; see https://www.chba.org.uk/find-counsel/pro-bono-access. In the event that they secure representation they would be well-advised to confine their submissions to those that their representative considers arguable.”

The net effect of these orders was that, unusually, a portion of the claim was transferred from the King’s Bench Division to the Chancery Division (Business and Property Courts of England and Wales, Business List) after interim TPDOs had been made, but leaving consideration whether to make them final to another tribunal. However, the orders made under section 37 were not stayed other than as to payment (consistent with the TPDOs being interim). There has been no appeal against the section 37 orders and the period for applying for permission to appeal has long expired.

Neither third party raised any objection to the section 37 orders and both subsequently took steps to implement the orders pursuant to instructions given under the authority provided by the orders. There is, however, a material difference between the steps taken by the two third parties. Mattioli Woods ‘disinvested’ the funds it held on behalf of the defendants on 28 November 2024 but the funds are still held within the respective pension funds. In the case of the first defendant £150,597.58 is held for her in cash within her pension fund and £162,765.57 is held for the second defendant within his fund. No tax has been paid and it would appear that a drawdown under their respective pension rules has not yet occurred. However, Phoenix has taken the instructions it received one stage further and on 16 July 2025 the pension held on behalf of the second defendant was terminated. Phoenix currently holds £115,053.25 after deduction of tax of £91,185.74 which it has paid to HMRC.

Although, strictly, the section 37 applications were transferred by Master Davison to the Chancery Division, no basis for reviewing them formed part of the defendants’ case as set out in Mr Uberoi’s skeleton argument; and the court only received brief submissions on the issue (prompted by questions from the court). The orders were sealed and whether they are treated as being interim or final, it would not be right to exercise such powers as the court may have either under CPR rule 3.1(7) or the court’s inherent jurisdiction to review them. Even if this court had power to re-consider the section 37 orders, in the case of Phoenix, discharging the order would serve no purpose because it is no longer executory. The effect of the Phoenix order cannot be reversed. The Phoenix pension no longer exists and tax liabilities have crystallised and been paid. The position is different in the case of the Mattioli Woods pensions but it would not be right to treat the pensions in a way which is inconsistent. Furthermore, I note that Master Davison in setting the issues for this court to determine did not invite a review of the section 37 orders.

At the hearing, in their helpful submissions, Mr Digby and Mr Uberoi provided submissions about the relevance or otherwise of the Court of Appeal’s decision in Manolete v White. This necessarily involved a review of the principal decisions that preceded Manolete v White and in particular Blight v Brewster [2012] 1 WLR 2841 which provides the foundation for the section 37 orders. But it is notable that in Manolete v White there was no application for a TPDO before the court. The method of enforcement in that case, and in most other reported decisions, involved solely an application for an order under section 37. This suggests that the orders under that jurisdiction are far from ‘auxiliary’. Indeed, as I will later suggest, those orders are the primary means of enforcement because they are the method by which a debt that is capable of forming the basis for a TPDO (if one is needed) arises. The claimants’ case, as is clear from the extracts from Mr Bunting’s witness statement set out above, is that debts would only arise after the section 37 order had been made and notification given to the respective pension providers of a wish to draw down on the pensions. This is reflected in the interim TPDOs. The last recital refers to it being just and convenient to make the section 37 order for steps to be taken “… that would give rise to a debt from the third party to the judgment debtors”. Paragraph 4 of the order is worded in a similar form.

Before turning to the decision in Manolete v White, it is possible to deal briefly with the first issue defined by Master Davison. It is common ground that the pensions held by the defendants with the third parties are personal pensions. They are not occupational pensions and therefore section 91 of the Pensions Act 1995 has no direct application to them.

The decision in Manolete v White concerned a judgment obtained against a director of a company who was entitled to benefits under an occupational pension scheme (“the Scheme”) of which he, Mr White, was the only member. The application was originally formulated to include an application for a TPDO as an alternative to a section 37 order but it appears from the judgments that no such order was made and the court’s jurisdiction under CPR rule 72 was not considered. Manolete sought and obtained an order under section 37 requiring the director to draw down his benefits under the Scheme. The principal asset of the Scheme was a commercial property in Swansea and the orders included an order for the trustees of the Scheme to sell the property, to draw down sums from the proceeds of sale up to the amount of the judgment debt and to pay such sums to Manolete in satisfaction of the sum due.

The main issue on the appeal concerned whether the order made at first instance contravened section 91(1) and (2) of the Pensions Act 1995 which provides that:

“(1)

Subject to subsection (5), where a person is entitled to a pension under an occupational pension scheme or has a right to a future pension under such a scheme

the entitlement cannot be assigned, commuted, or surrendered

the entitlement or right cannot be charged or a lien exercised in respect of it, and

no set-off can be exercised in respect of it,

The Scheme’s rules are summarised at [10] to [11] of Snowden LJ’s judgment and do not need to be repeated here. The effect of the rules was described in the judgment as follows:

“13 The parties are also agreed that Mr White has the ability under Scheme rule 6C(1) to seek to agree with the Scheme trustees the amount of income to be withdrawn from the balance of this Drawdown Pension Fund in each Drawdown Pension Year, together with the number of instalments in which that is to be paid. This could include seeking a single payment of all of that remaining fund, or no payment at all in any Drawdown Pension Year. Alternatively, Mr White has the right, pursuant to rule 6C(3) to require the Scheme trustees to use the balance of his Drawdown Pension Fund to purchase an annuity for him, commencing on a date to be agreed. The trustees are able to delay any such payment, or purchase of an annuity, in order to enable any necessary illiquid assets to be sold.

14 The parties are further agreed that Mr White has the power under Scheme rule 6A(6) to seek to agree with the Scheme trustees that any remaining assets held within the Scheme and available to him should be designated as a further Drawdown Pension Fund to be held and dealt with in the same way under the terms of Scheme rule 6C.

15 In this regard, the Scheme owns a commercial property in Swansea (the Property). The Property was originally acquired in about 2006 using monies contributed by the Company to the Scheme. After its acquisition, the Property was leased by the Scheme to the Company and occupied by it for the purposes of its business. When the Company went into liquidation in 2017, the liquidators disclaimed the lease of the Property, which has since been occupied by a number of third party businesses. The current occupier pays an annual licence fee of £60,000. In 2018, the Property was said to be worth about £800,000.”

In considering the proper approach to the construction of section 91 the court had regard to its genesis in the 1993 Report of the Pension Law Review Committee chaired by Professor Sir Roy Goode (“the Goode Report”). Snowden LJ noted at [48] the distinction between (i) monies which have been paid over, or have become due for payment to a member of an occupational pension scheme and (ii) “future pension entitlements” or “future pension rights” to which a member might become entitled under the scheme in the future and remarked that:

“… the clear intent of the [Goode Report] was that entitlements or rights to future benefits under occupational pension schemes should be immune from attachment by judgment creditors and should not form part of the estate which would vest in a trustee in bankruptcy for the benefit of the general body of creditors of the scheme member.”

He concluded at [63] that the legislative purpose behind sections 91(1) and (2) remained that he had identified in the Goode Report and at [64] drew attention to the way in which section 91(2) was drafted that prohibited the making of an order “the effect of which” would be to restrain a member from receiving their pension. Furthermore, the Goode report had identified the clear policy and purpose that future benefits under occupational pension schemes should be to support the member in retirement.

At [67] Snowden LJ identified that prior to Mr White making appropriate requests under the Scheme Rules and obtaining the agreement of the trustees Mr White “… presently has no entitlement or right to any immediate pension payment from the Scheme, and none will be made.”

As originally framed, the order sought by Manolete was that Mr White should exercise his rights under the Scheme Rules and instruct that payment of his pension should be made directly to Manolete. The second iteration provided for payment to be made into a designated account and after payment of any fees due to the trustees and tax the balance was to be paid to Manolete. Snowden LJ described this version as being no different in substance to the first version.

The order made at first Instance that was the subject of the appeal provided for any monies drawn down to be paid into an account in Mr White’s name, but as Snowden LJ observed at [71], it was never intended he would be able to access those monies or use them for his own benefit. Furthermore, the principal asset of the Scheme was real estate and the order involved a direction for the trustees to sell the property, to give advance notice of the account into which payment would be made and to keep Manolete informed of progress with the sale. At [73] Snowden LJ said:

“The clear intention behind such provisions was to facilitate Manolete applying for an order prior to any payment being made by the Scheme so as to ensure that Mr White would not be liberty to use any pension monies for his own benefit.”

His conclusions can be seen from paragraphs 75 and 76:

“75 In reality, Manolete’s argument amounted to an assertion that the Order made by the Judge requiring Mr White to draw down his pension was not prohibited by section 91(2) because it did not itself prevent Mr White from receiving his pension monies; but when Manolete then came to make its application to enforce its judgment over the monies in the designated account, it would doubtless contend that such enforcement order would also not fall foul of section 91(2), because it would apply to monies which by then had actually been paid or were due to be paid into Mr Whites account. In essence, Manolete’s contention is that by making two orders in sequence, the court can achieve a result that would plainly be prohibited if it were to make one composite order. That is precisely the type of artificial and non-purposive approach to the interpretation and application of a statute that has been firmly rejected in cases such as Ramsay, UBS AG and Rossendale.

76 Instead, in my view, the correct approach to section 91(2) required the Judge to take a more realistic and purposive view of the order he was being asked to make. He should have recognised that his Order formed part of a pre-planned sequence of steps that was designed to enable Manolete to enforce its Judgment Debt over the monies required to be drawn down from the Scheme and paid into the designated account. As such, the Order had the prohibited effect that Mr White would be prevented from receiving his future pension from the Scheme.”

Green LJ agreed with Snowden LJ’s judgment and added observations about the proper use of the jurisdiction under section 37. He said that even if the use of the power was not expressly prohibited, if it led to an outcome that was contrary to the purpose of the primary legislation it would be an illegitimate exercise of the statutory power.

Considerable reliance was placed by Mr Uberoi on the judgment of Asplin LJ who also agreed with the reasons expressed by Snowden LJ. She drew attention to aspects of the Scheme Rules and the fiduciary duties of the trustees:

“112 First, as a beneficiary of the Scheme, Mr White has no right or entitlement to the Property which is a Scheme asset. Nor is he entitled to require the trustees of the Scheme (which happen to be himself and his son) to sell the Property. That is for the trustees to determine in accordance with their fiduciary duties and the requirements of the Rules of the Scheme. Mr White is entitled, qua beneficiary, to ask for any amount available under rule 6A of the Rules of the Scheme to be designated as a further Drawdown Pension Fund: rule 6A(6). Of course, were he to do so, he and his son, in their capacity as trustees, in exercise of their fiduciary duties, would have to consider whether to agree and when doing so they would have to decide whether it was appropriate to sell the Property, being the only further substantial asset in the Fund.

113 Secondly, even if Mr White were to exercise his entitlement under rule 6A(6) to ask for an amount to be designated as a further Drawdown Pension Fund, he would not become entitled to receive a pension. As Snowden LJ points out, at that stage, the provisions contained in rule 6C come into play. Under that rule, Mr White shall agree with the trustees the income to be withdrawn from the Drawdown Pension Fund in each Drawdown Pension Year. It is possible that he may seek to agree an income of zero. Whatever the level of income proposed, even though Mr White and his son are the trustees, they may not agree to the proposal put forward by Mr White as beneficiary. In my judgment, therefore, no present right to a pension arises at that stage.

114 Thirdly, the same is true in relation to the £750,000 odd which may still be within the first Drawdown Pension Fund from which Mr White received £250,000. The payment of income in any Drawdown Pension Year is subject to agreement between Mr White as beneficiary and the trustees (who, as I have already mentioned, happen to be Mr White and his son). There can be no present right to that income, in the sense of a right to payment until, at the very earliest, an agreement is reached.”

She went on to emphasise the role of the trustees of the Scheme and observed that the order under appeal took:

“115 .., no account of the separate legal identity of the trustees and the need for agreement. It assumes that a beneficiary of an occupational pension scheme, in the circumstances which apply under the relevant Rules of this Scheme, can merely direct the trustees how to proceed and require them to do so. That is not the case.”

The decision in Blight v Brewster [2012] 1 WLR 2841 was an appeal from a decision of a District Judge relating to the enforcement of a judgment against the defendant based on his fraud. The material part of the judgment concerns the attempt to enforce the judgment against the defendant’s personal pension policy under which he was entitled to elect to draw down 25% of the fund held for him under the terms of the policy.

The claimants obtained an interim TPDO in respect of the defendant’s right to draw down under his pension. The defendant was successful in obtaining a discharge of the interim order. On the appeal, Gabriel Moss QC sitting as a Deputy High Court judge agreed that the TPDO could not stand:

“59 The claimants applied for a third party debt order. This was clearly unviable taken by itself, because the right to elect the drawdown was not a debt. A debt would only arise if the election were made. The district judge below so held, in my view correctly.”

However, the Deputy Judge went on to hold that the court could use its powers under section 37:

“75 In my judgment, it is not necessary to go to the disproportionate trouble and expense in a case of this kind to appoint a receiver by way of equitable execution and then force the defendant to delegate his power of withdrawal to the receiver, as was done in the Privy Council case. The defendant in this case can simply be ordered to delegate the power of election to the claimants’ solicitor and for the court to authorise the solicitor to make the election in his name. Upon the election being made, the sum payable by Canada Life will then become due to the defendant and can be made the subject of the third party debt order.

76 I propose therefore to order that the defendant sign such letter as may be presented to him by the claimants’ solicitors to delegate to the claimants’ solicitor the power to make in the defendants name the election to receive his tax free 25% payment, up to the amount needed to repay the balance of the judgment debt. I also propose to order that if the defendant does not comply with this order, the claimants be authorised by the court to write in the defendant’s name to Canada Life making the election on his behalf and in his name. There is no question here of assigning the right to make the election: there is simply a question of authorising another party to act on the defendant’s behalf. A copy the order of the court together with the claimants’ solicitors.”

Having agreed that the interim TPDO had been correctly discharged, the Deputy Judge concluded his judgment by saying:

“78 In any event, I will restore the third party debt order discharged below, to take effect from the moment that the debt created by the election to take the lump sum becomes effective.”

I do not fully understand the approach that is briefly referred to in this paragraph. The Deputy Judge agreed that the interim order had been correctly discharged because the defendant’s right to draw down under his pension did not amount to a debt that could found a TPDO. The result of the appeal made it possible for the claimants to convert the defendant’s right into a debt, but the debt would not arise until the steps set out in paragraph [76] of the judgment had been implemented. At the date the order was made on the appeal there was no debt and a TPDO could not be made, consistent with the Deputy Judge’s earlier finding. However, perhaps the view was taken on a pragmatic basis that in light of an order having been made previously it could be made to take effect in the future. But that approach does not sit comfortably with the language of CPR rule 72 where it refers to ‘debt’, ‘money’ ‘amount owed’, ‘money held’ and so on. The requirements of an interim TPDO are, as the Deputy Judge accepted, that there is at the date of the application an identifiable debt that is due. In other cases, the court has not found it to be necessary to make a TPDO when exercising powers under section 37 and it may well be that it suffices for the court to direct payment to the judgment creditor, due consideration about whether it is just and convenient to make the order being a sufficient safeguard to protect the interests of the judgment debtor and, to the extent that it is needed, the interests of other creditors.

The judgment does not provide any details of the rules of the defendant’s pension policy but it appears the Deputy Judge was satisfied that the court could make an order the effect of which was to require payment of 25% of the value held in the pension and that the concerns highlighted by Asplin LJ in Manolete v White did not arise.

Blight v Brewster has received judicial consideration in several cases. In Horton v Henry [2017] 1 WLR 391 the Court of Appeal considered whether a pension that is not in payment because rights have not been exercised constitute payments in the nature of “income” to which a bankrupt becomes entitled for the purposes of section 310(7) of the Insolvency Act 1986. Blight v Brewster was cited during the course of submissions. Gloster LJ in providing the leading judgment added a footnote to her judgment saying that she had assumed for the purposes of her judgment, without deciding the point, that the decision in Blight v Brewster was correct.

Blight v Brewster was applied in Bacci v Green [2022] EWHC 486 (Ch) by Andrew Hochhauser QC sitting as a Deputy High Court judge. In that case the order under section 37 was made in relation to the defendant’s interest in an occupational pension scheme. The decision was upheld on appeal, it having been conceded that section 91 of the Pensions Act 1995 did not restrict the court’s jurisdiction. Bacci did not involve a TPDO being made.

In Brake v Guy [2022] EWHC 1746 (Ch) an award of costs was made by the Court of Appeal in favour of the defendants against the claimants and an interim TPDO was made. Further consideration of the interim order was heard by HHJ Matthews. At the same hearing the judge considered and application for relief under section 37.

As to the TPDO, the judge started from the premise, with which I respectfully agree, that the court must be satisfied there is a debt due from the third party to the judgment debtor before making an TPDO. The judge went on to set out the test for whether a debt is due:

“44.

The test for whether there is a debt due or accruing due for this purpose has been judicially stated to be whether or not the creditor could immediately and effectually sue (see Taurus Petroleum Ltd v State Oil Marketing Company [2018] AC 690, [88]), or whether there is some contingency or condition precedent that has not yet been satisfied (see Hardy Exploration and Production (India) Inc v Government of India [2018] EWHC 1916 (Comm), [120]). A common object of third party debt order applications is the judgment debtor’s current bank account, which (when in credit) represents a debt due from the bank to its customer, for which the customer could effectually sue. The important thing to notice is that a judgment creditor cannot by using the third party debt order procedure be put in a better position than the judgment debtor was. As it was put in an old case, “the judgment creditor … can only obtain what the judgment debtor could honestly give him”: Re General Horticultural Co, ex p Whitehouse (1886) 32 Ch D 512, 516.”

After reviewing the provisions of Mr Brake’s personal pension scheme, the judge concluded that:

As a consequence, the judge declined to make the TDPO final.

However, an order was made under section 37 relying upon Blight v Brewster. This followed a full review of the provisions of the pension policy including paragraph 11.5 which provided that:

“11.5.

… we may decline to follow your instructions (we will inform you within a reasonable time if so). In particular we will refuse to carry out your instructions where any required documentation is not satisfactorily complete.”

The judge considered whether this clause provided a general discretion to withhold benefits from a policyholder but concluded on a proper construction of the provision that it was simply concerned with establishing that the necessary instructions are supported by any necessary documentation. He described in trenchant form the wider construction proposed by the third party as:

“… commercial nonsense, indeed, probably commercial suicide.”

The third party also submitted that it stood in a fiduciary position towards Mr Brake and was obliged to act in his best interests. As to this submission HHJ Matthews said:

“74 … in my judgment, once Mr Brake (or his agent) gives an effective instruction to the third party to liquidate the fund and pay it out, the third party has no discretion not to implement it, even if it thinks that this is not in Mr Brake’s best interests. It is the same as if the sole beneficiary of a trust, of full age and sound mind, directed the trustee to pay the trust fund over to him, under the so-called rule in Saunders v Vautier, and the trustee declined to do so, saying that it was not in the beneficiary’s best interests to do so. So, once the third party has money in its hands which it is its duty to pay to Mr Brake, it can be made subject to a TPDO: see for example Re Greenwood [1901] 1 Ch 887, 890-91.”

I respectfully agree with that analysis. A TPDO can be made only at a point at which the third party has money in its hands, not before. The decision also highlights the need for the court, on considering whether to make an order under section 37, to have considered the rules provided in the policy and the nature of the fund held for the judgment debtor. As to the rules, the position may under some policies be more akin to the rules in Manolete with a need for the trustee to exercise independent fiduciary duties rather than, as in Brake, the reality being that the judgment debtor could require payment once investments had been realised. If, as in Manolete, the fund is held in illiquid assets such as real estate or shares in an unlisted company it may well be that the steps to be taken to realise funds will render it unlikely the court will make an order than rides roughshod over the trustee’s duties.

Blight v Brewster was applied in Lindsay v O’Loughnane [2022] EWHC 1829 (QB), a decision of Simon Birt QC sitting as a Deputy High Court judge. The defendant, against whom a judgment for fraud had been obtained, had the benefit of three personal pensions. Each provider had given the court details of the pension value and other details but not the terms of the policies. The application that came before the court had a slightly tangled procedural history starting out as an application for a TPDO against one of the providers. Master Dagnall made an interim order “… to apply to debts due or accruing due by the third party to Mr O’Loughnane, or which may become due and payable, under the pension plans held with it in Mr O’Loughnane’s name.” He gave permission to Mr Lindsay to amend and re-serve the application as one for an order under section 37 of the Senior Courts Act 1981. Further applications were issued and subsequently they were referred to a High Court judge.

The judge remarked:

“26 As noted above, this application was initially formulated as an application for a third party debt order. However, as subsequently recognised on behalf of Mr Lindsay, that is not an application that can be made (at least not at the present time) in respect of the pension plans. There is no debt currently owed by the pension providers to Mr O’Loughnane in respect of which such an order could be made.”

Ultimately the Deputy Judge made an order under section 37 relying upon the principles set out in Blight v Brewster. Before doing so, however, he expressed a view about whether a contingent third party debt order can be made. In other words, whether an order can be in anticipation of a debt becoming due.

“37.

I should also note that one of the other concerns that was raised by Master Dagnall when the matter came before him in August and September 2020 was whether or not a third party debt order could be made prospectively regarding a debt which had not yet become payable. He noted that such an order had been made in Blight (see paragraph 78 of the judgment of Mr Moss QC). However, he also noted that a third party debt order can only be made in respect of a debt that is due or accruing due, and referred to the decision of HHJ Pelling QC in Wilson v Sinclair [2020] EWHC 1249 (Comm),in which the Judge had set out the relevant principles and some of the case-law (see paragraphs 24 to 33).

38.

It seems to me that the two are not irreconcilable. The order made in Blight was stated by the Deputy Judge (at paragraph 78) to take effect only from the moment that the debt created by the election to take the lump sum became effective. In other words, it was not an order that the third party pay a debt that had not yet accrued due to the defendant (which is an order than cannot be made), but rather an order that would direct payment by the third party once the debt had accrued due.”

The last authority to mention is the recent decision in Century Property (Leeds) Ltd v Aldiss [2025] EWHC 1348 (KB), a decision of Andrew Kinnear KC sitting as a Deputy High Court judge. The judge dealt with an application for injunctions under section 37 to enforce a judgment debt against funds due to the defendant under his personal pension. This was not a case involving an application for a TPDO. The underlying claim was resolved in a Tomlin order under the terms of which the defendant agreed to pay a second instalment of £300,000 from his personal pension scheme. Subsequently, the claimant obtained a charging order over the pension fund. The application sought Blight v Brewster type orders. The Deputy Judge was satisfied on the evidence that the defendant was entitled to withdraw the full value of the pension fund with the first 25% being free of tax and the remainder being subject to tax at the defendant’s marginal rate. The judgment includes a review of the authorities mentioned in this judgment and a thorough review of factors relevant to the exercise of the court’s discretion under section 37. The decision of the Court of Appeal in Manolete v White was not mentioned.

The decision is another example of a Blight v Brewster order being made without the support of a TPDO. There was no dispute at the hearing that Dr Aldiss was entitled to draw down on his pension and, furthermore, he had agreed to do so in the settlement terms contained in the schedule to the Tomlin Order.

As I have already indicated, I do not consider that it is open to this court to review that section 37 orders. The court is left with the task of deciding whether the TPDOs should be made final in light of the decision in Manolete v White.

Mr Uberoi drew attention to the similarity of wording between section 91 Pensions Act 1995 and the language of the Standard Life Rules which govern the Phoenix Life pension. Under those rules:

“ASSIGNMENT OR SURRENDER

13.2

Rights to a Pension Commencement Lump Sum, a Lifetime Allowance Excess Lump Sum or an Uncrystallised Funds Pension Lump Sum under the Scheme may not be assigned or surrendered, except to the extent necessary to give effect to comply with a Pension Sharing Order.

“13.2

Rights to a Pension Commencement Lump Sum, a Lifetime Allowance Excess Lump Sum or an Uncrystallised Funds Pension Lump Sum under the Scheme may not be assigned or surrendered, except to the extent necessary to give effect to comply with a Pension Sharing Order.

13.3

No benefit to which a Member, Substitute Member, Dependant, Nominee or Successor has an actual or prospective entitlement may be assigned or surrendered except in the following circumstances:

(1)

A pension which continues under a guarantee to a person’s estate after his or her death may be assigned by his or her will, or by his or her personal representatives in distributing his or her estate, for any of the following reasons:

• To give effect to his or her will; or

• To give effect to the rights of those entitled on his or her intestacy; or

• To appropriate it to a legacy or to a share or interest in the estate.

(2)

To the extent necessary to comply with a Pension Sharing Order.

(3)

As permitted by sections 342A to 342C of the Insolvency Act 1986 and sections 36A to 36C of the Bankruptcy (Scotland) Act 1985, as amended by sections 15 to 16 of the Welfare Reform Act.

(4)

As permitted by section 273 to 278 of the Proceeds of Crime Act 2002.”

There is no similar wording in the Mattioli Woods pension.

Mr Uberoi submitted that the reasoning and the underlying policy considerations in Snowden LJ’s judgment should be applied in the case of Phoenix. He points to the prohibition against assignment or surrender in rules 13.2 and 13.3.

He also submits that the “overarching logic of the Goode Report” at paragraph 4.14.3 (cited at [45] in Manolete v White) should be applied.

There are, however, real difficulties with these submissions:

Mr Uberoi drew attention to the analysis in the decision about the two-stage approach adopted in the order made at first instance, thus avoiding the fruits of the pension drawdown being paid directly to Manolete. At [75] Snowden LJ observed if one composite order would have been prohibited, then undertaking the same actions in two orders made no difference of substance. Mr Uberoi referred the decision of the Privy Council in Air Jamaica v Charlton [1999] Pens LR 247 at [46] where it was said that “… the Trustees could not achieve by two steps what could not be achieved by one.” However, the trustees in the case of Phoenix are not prohibited from permitting a drawdown from the pension pursuant to a court order. There is no equivalent of section 91(2) and so the submission does not assist the defendants.

Lastly, Mr Uberoi relied upon Asplin LJ’s observations about trustee decision making at [112]-[114]. Her remarks were addressed to the rules of the Scheme under consideration and had regard to the fact that the scheme held real estate which would have to be sold as a preliminary step. But it seems to me that in every case in which a Blight v Brewster order is sought, the court will need to establish what steps need to be followed for a pension drawdown to take place and the scope of the trustee’s discretion.

In each case the court has to consider whether the role of the trustee under the scheme or policy in question is similar to that described by HHJ Matthews in Brake v Guy at [74] or whether, in reality, the trustee has to undertake a decision making process that is not one the beneficiary can direct. The court will need to be satisfied that it is able to make an order directing the trustee to make a payment; that the position is akin to the principle in Saunders v Vautier with the beneficiary being entitled to require the trustee to act in a particular way.

However, these are considerations that apply when the court is considering whether to make an order under section 37. In this case, section 37 orders were made and they have been implemented without demur by the trustees of the two schemes. The concerns expressed by Asplin LJ do not arise for consideration when deciding whether to make the TPDOs final in this case.

In my judgment, the considerations that led to the appeal being allowed in Manolete v White, were principally matters of statutory construction of provisions relating to occupational pensions. They have no bearing upon the decisions this court is required to make.

This issue concerns whether the court should exercise its discretion to make the TPDOs final.

Section 40 of the Senior Courts Act 1981 provides context that is relevant when considering the scope of CPR rule 72. Parliament felt it was necessary to clarify that for the purposes of the jurisdiction of the court to make an order to attach debts to satisfy a judgment for the payment of money, the conditions under which the account is held specified in sub-section (3) of section 40, such as a need to give notice to a deposit holder before withdrawing money, are to be disregarded. There is no comparable provision relating to any pre-conditions applying to drawing down on a pension.

I observe that:

The first defendant has made a witness statement to provide the court with information that is, she says, relevant to the court’s decision. In summary:

I accept that these are all factors that may be relevant to the exercise of the court’s discretion. I also accept Mr Uberoi’s submission that pensions should be seen in a different way to other financial resources because they are intended to provide support in retirement. On the other hand, personal pensions are designed to provide a high degree of flexibility as ‘a tax efficient investment wrapper’ from which, subject to regulations about tax, drawdowns can be made well before normal retirement age (age 55 in the case of both third party schemes).

There are, however, compelling reasons in this case why these TPDOs should be made final.

In my judgment none of the factors put forward on behalf of the defendants carry any significant weight when put in the balance against the factors set out above. The disparity of wealth, in particular, is of limited assistance to the defendants. In permitting the enforcement of a judgment, in the absence of a requirement similar to section 1(5) of the Charging Orders Act 1979, it makes no real difference that the claimant is wealthy. Absent insolvency, a judgment of the court should be enforceable.

For the reasons I have mentioned previously, I have concerns about the basis upon which the interim orders were made. There were no debts due from the third parties at the time the interim orders were made. The language used in CPR rule 72 points only in one direction.

The ability to require a third party to pay money to a judgment creditor is based upon money being owed at the time the interim order is made. This is clear from the form in which the application is required to be made and the consistent references in the rule to “money”, “debt” and “amount owed”.

This was the view taken by the Deputy Judge in Blight v Brewster when he set aside the interim TPDO made in the County Court. I do not understand his approach that is summarised very briefly in the final paragraph of his judgment to be that a TPDO can be made prospectively but rather than a TPDO could be made in the future when a debt has materialised. Viewed otherwise, the Deputy Judge was extending CPR rule 72 in a manner which he himself considered to be impermissible.

In Brake v Guy an interim TPDO was made in the Court of Appeal. HHJ Matthews declined to make the order final on the basis there was no debt due and owing under the pension scheme.

In Lindsay v O’Loughnane the Deputy Judge sought to provide an explanation of the order apparently made in Blight v Brewster. His remarks are obiter and to the extent they may be taken as supporting the court’s ability to make an interim TPDO against the expectation that a debt will become due, I respectfully decline to follow that approach.

Making an order which will take effect in the future (which is not what was done in this case) is unattractive because when making the order the court does not know how much the debt will be or when it will become due. This creates a degree of uncertainty that should not arise from an order. It would also mean that the second stage under CPR rule 72 could not be started until the debt arose.

I do not consider that there is authority binding on me leading to the necessary conclusion that the interim TPDOs made in this case were permitted by CPR rule 72 in light of the fact that there were no debts due when the interim orders were made.

I have considered whether CPR rule 72 could be understood to permit an interim order to be made against a debt that will become due as a result of an auxiliary order made at the same time, but I have concluded that there is no proper basis upon which the rule can be understood in that way. Furthermore, there is no need to stretch the language of the rule in that way. The section 37 order is, to my mind, not an order that is auxiliary to a TPDO. It is in reality the primary order that is sought and does not need to be made alongside an application for a TPDO. There is no reason why the application for an order under section 37 may not be made first and, if it is needed, a TPDO can be made at a later date when a debt has become due.

This is consistent with the concerns highlighted by Asplin LJ in Manolete v White. Usually, the judgment creditor will have limited knowledge about the pension scheme and may not have the scheme rules. Equally, the judgment creditor may not know what type of investments are held and how readily realisable they may be. If, as in the case of Mr White, the pension fund holds real estate (a) the process of producing cash will take time and (b) the trustee will almost certainly need to make decisions in the exercise of its function that cannot be directed by the beneficiary or the court. There may well be cases in which the court cannot make an order even with a caveat along the lines of paragraph 4 of Master Davison’s order dated 4 October 2024. In fact, it may be better practice for the section 37 order to be made on an interim basis inviting the trustee or scheme administrator to exercise their powers or to show cause why the exercise of fiduciary powers does not permit the order to be made, or raise more practical issues about the realisation of assets.

In conclusion, although there is a compelling case on the merits for making the Interim TPDOs final, I do not feel able to make those orders.

However, unlike when the interim orders were made, there are now debts due to the defendants from the third parties. My provisional view is that it would not be in the interests of justice, or in accordance with the overriding objective, to discharge the interim orders and require the claimants to start afresh. CPR rule 72(2) states that the court will not make a final order without first having made an interim order. But it may be open to the court may waive the requirement for an interim order in respect of the debts that are now due pursuant to the section 37 orders. The interim procedure which provides safeguards has already been undertaken.

I will hear counsel on or after handing down this judgment about whether it is open to this court to make TPDOs and whether, in the circumstances of this case, the orders should be final orders.