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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bandak v Howell [2013] EWCA Civ 531 (11 April 2013) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/531.html Cite as: [2013] EWCA Civ 531

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY
FAMILY DIVISION
(HIS HONOUR JUDGE HOROWITZ QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		11th April 2013

Lord Justice Thorpe:

1. This permission application arises out of an order made by HHJ Horowitz QC on 14 December 2012 sitting in the Principal Registry. He was fundamentally exercising jurisdiction under the Matrimonial Causes Act to make financial remedy orders as between Mr Howell and his wife, but at the end of the day a third party creditor represented by counsel appeared to seek an order for sale of the jointly owned matrimonial home, which continues to serve as a residence for Mr Howell and for the child of the family, who shares his life between the home of mother and father.
2. The application from the creditor came at the end of a long day, and it was entirely separate in procedural origin from the financial remedy proceedings. It seems that it came before the judge on transfer from the Lambeth County Court, where the money claim had progressed to a charging order absolute, after which there followed what Mr Howell has described as Part 8 proceedings necessary to convert the charging order into an order for sale. So HHJ Horowitz was in effect, at the end of the day, assuming jurisdiction in the Part 8 proceedings. As he explained, he did not hold a civil ticket and was by no means familiar with the procedure and the law in determining a Part 8 claim.
3. So it may be that Mr Howell has force in his criticism of the resulting order, which states: 1) there be an order for sale, 2) directions for the implementation of the sale, including conduct and possession for the purposes of effecting the sale, are adjourned to the court hearing of the Financial Remedy application on 28 February 2013, listed for two days; the claimant to be heard in that application at 3.30pm on the second day unless the parties have agreed terms of sale in writing before the hearing.
4. Mr Howell's fundamental criticism is that the residual discretion in the financial remedy judge on 28 February / 1 March was curtailed to directions for implementation. He should, says Mr Howell, have had the wider discretion to consider whether or not an order for sale was the creditor's entitlement, and so the order should have been in simpler form, simply adjourning to the financial remedy judge the application under Part 8 for an order for sale. It seems to me that that is an arguable contention and I would favour the grant of permission.
5. However, in an endeavour to spare the resources of this court and the development of costs in appeal, I would say that this judgment be transcribed, made available to the claimant and to the applicant wife in the hope that the parties might be able to agree a variation of the order of 14 December to avoid the necessity for a further listing. I would also suggest that if there has to be a further listing it would be capable of containing within a one-hour time estimate. I would also suggest that the only parties essential for the determination on an appeal are Mr Howell and the judgment creditor, Mr Bandak. I would accordingly release the applicant wife from representation on any future listing, although of course it would be entirely a matter for her to elect whether or not to attend and whether or not to be represented. But in order to give at least a signal and to avoid the risk of unnecessary representation I would just express that opinion.

Lord Justice Jackson:

6. I agree.

Lord Justice Tomlinson:

7. I too agree.

Order: Application granted