Brake & Anor v Guy & Ors [2022] EWHC 2797 (Ch)

Charlotte Pope-Williams for the Third Party

HHJ Paul Matthews :

INTRODUCTION

• This is my judgment on an application by the defendants (“the Guy Parties”) by notice dated 12 September 2022, for an order under regulation 7(2)(b) of the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020 (“the 2020 Regulations”). The purpose of the order would be to permit (and therefore require) the parties to comply with an order which I made on 20 July 2022 in relation to a third-party debt order (“TPDO”), notwithstanding the entry of the first claimant into a mental health crisis moratorium under the 2020 Regulations in late August or early September 2022. Unfortunately, the matter is procedurally complex, and it is necessary for me to give a little explanation of the background before dealing with the application itself.

• The parties have been locked in large-scale litigation ever since the breakdown of the former employment relationship between them in November 2018. I have so far tried four full-scale actions between them. The employment tribunal proceedings between the parties are still to be tried (though not by me). The claim in which the present application arises was brought by the Brakes against the Guy Parties in respect of alleged misuse of confidential information and infringement of privacy. At first instance, I held that the Brakes’ claim failed: [2021] EWHC 671 (Ch). They appealed to the Court of Appeal, which dismissed the appeal: see [2022] EWCA Civ 235.

THE THIRD PARTY DEBT ORDER

• Following the appeal, the Court of Appeal ordered that the Brakes pay the costs of the appeal of the Guy Parties, and ordered an interim payment on account of £70,000 by 4 PM on 16 March 2022. That sum was not paid on that date, nor, indeed, thereafter. The Guy Parties applied for a TPDO by notice dated 17 March 2022, but sealed only on 28 March 2022. In the notice the third party was identified as “James Hay Partnership”, of an address in Salisbury, and stated to owe money to one of the Brakes, namely the second claimant Andrew Brake. The debt was said to consist of a personal pension policy.

• A TPDO was indeed made on an interim basis by Lewison LJ on 4 April 2022. He directed that the further consideration of the application should be at a hearing listed before me, to take place not before 28 April 2022. The interim TPDO was served on the James Hay Partnership by email sent on 4 April 2022, as were the application notice for the TPDO and documents in support. Receipt was acknowledged by email, expressly on behalf of the “James Hay Partnership”, by email on the morning of 5 April 2022. I directed that the hearing for further consideration of the application for a TPDO should take place before me at 2 PM on 29 April 2022.

• In fact, there then followed a series of applications, which meant that the further consideration was adjourned, and did not in fact take place until 30 May 2022. Anyone interested in the exact sequence of events will find it set out in the written judgment which I eventually handed down on 11 July 2022: see [2022] EWHC 1746 (Ch). In summary, I decided that the TPDO should be made final. But, in fact, it was more complicated than that, and involved the grant of an injunction requiring Mr Brake to exercise his right to draw down his remaining pension entitlement from the third party. I also decided that the third party should pay 90% of the Guy Parties’ costs of the applications, summarily assessed on the indemnity basis: see [2022] EWHC 1911 (Ch), [2022] Costs LR 1315.

Enforcement of the TPDO

• My decision requiring Mr Brake to take steps to draw down his pension was made on 20 July 2022. It set out the steps to be taken by the parties, beginning with Mr Brake. A draft order was sent to me on 29 July, agreed between the defendants and the third party, with no objection in principle from the claimants. On the same day Mrs Brake confirmed that Mr Brake had taken the first step required of him, namely, asking HMRC for confirmation of his tax code. On 3 August, the Guy Parties’ solicitors asked Mrs Brake whether her husband had taken the next steps envisaged by the order (sending a letter to the third party) by the time specified of 4 pm on 3 August. The same day, Mrs Brake replied saying:

“Sincere apologies. I have been having a very bad week, and have not kept an eye on things. If you give me until Monday [8 August] to get Mr Brake’s forms sorted.”

• In fact, on 9 August 2022 the claimants wrote to the court asking for the next steps to be postponed until 27 August, after they had returned from what they referred to as their “annual leave”. In written reasons given to the parties on 9 August, I declined to make any change to the timetable as originally set out. As I said then,

“if the second claimant is able to go away on holiday, he is able to deal with the requirements of this order”.

The claimants nevertheless challenged the reasons given by email dated 12 August. A detailed response was sent by the court on 16 August, rejecting the challenge. I am not aware of any further challenge to my decision.

Continue reading this Judgment here.