Ittihadieh v Metcalfe: Charging Orders Practice Points Clarified
The judgment affirmed the following:
An application for a charging order is a “without notice” application, so the applicant is under a duty to give full and frank disclosure of any matters of fact or law which are or may be adverse to the Applicant.
The fact that the Respondent has applied for permission to appeal the judgment and a stay are matters which the Applicant is obliged to draw to the Court’s attention.
The Applicant’s duty continues after the application is made. Therefore if the Applicant learns that the Respondent has made an application for permission to appeal and a stay after the application is made but before the Court has made an interim charging order, the Applicant must draw it to the Court’s attention.
If the Applicant breaches its duty, the Court has a discretion whether to discharge the interim charging order or make a final charging order. There is no presumption towards discharge. Discharge is only likely if the Court would have had serious doubts about whether to make the interim charging order if it had been aware of the application for permission to appeal and a stay.
In the instant case, the Master made a final charging order, despite the Applicant’s breach of duty. The parties reached agreement before the decision on costs was made. The Respondent had argued that the Court should order the Applicant to bear at least part of the costs
(i)as a mark of its disapproval for the Applicant’s breach of its duty;
(ii)because but for that breach none of the costs would have been incurred; and
(iii)because it had not lost on the issue of whether it had breached its duty of non-disclosure, and had initially contested that the duty existed at all.
Stephanie Tozer appeared for the Respondent. She is an author of the Falcon Chambers book on Charging Orders
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