This issue was first raised in Blight v Brewster [2012] EWHC 165 (Ch). In this case, a claimant was trying to enforce a judgement debt against the defendant. The defendant’s pension was set up so that he was entitled to draw down 25% as a tax-free lump sum. The court held that claimant could claim this lump sum by the following method:
- The court used a mandatory injunction to make the defendant delegate his power of election for drawdown to the claimant’s solicitor.
- The court made a direction authorising the claimant’s solicitor to make the election for drawdown of the lump sum.
- The court made a third-party debt order. This took effect when the election was made and caused the lump sum to be due from the pension fund to the defendant.
This case created a new precedent for cases where the creditor is seeking enforcement for lumps sums, for example judgement debts or maintenance arrears. We have seen the above method being applied in multiple recent cases, including Lindsay v O’Loughnane [2022] EWHC 1829 (QB). In this case, the defendant had a judgement debt of £565,000 plus interest and costs. At first, the claimant tried to get a third-party debt order against the defendant’s personal pension. However, the pension was not currently owed to the defendant and so, no order could be made. Therefore, the claimant sought an order requiring the defendant to:
- Make a written request to all of his pension providers that when they draw down his pension fund (on his retirement or when he reaches 55, whichever is earliest) it must be directed to the claimant.
- If the defendant does not make the request, a person is to be appointed as agent to make the request.
- Make a provision for the payment of any tax that will fall due. This is required because the defendant’s entire pension was being claimed, unlike in Blight v Brewster where only the tax-free lump sum was being claimed.
The court held that it had the jurisdiction to make this order under section 37(1) of the Senior Courts Act 1981. This was based on the fact that it was just, equitable and convenient to make the order.
Please, also, note the following cases that address this matter:
- Bacci v Green [2022] EWHC 486 (Ch)
- Brake and another v Guy and others [2022] EWHC 1746 (Ch)
For further information on this topic or on any other legal area, please contact John Szepietowski or Kay Stewart at Audley Chaucer Solicitors on 01372 303444 or email admin@audleychaucer.com or visit our Linkedin page.
Kieran Pezzack
This information was correct as at July 2022
