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You can never find an Austrian when you need one

By J

National Westminster Bank Plc v Rushmer [2010] EWHC 554 (Ch) is a rather complex case involving enforcement of charging orders. I’m not going to deal with the full background, which is set out in the judgment and in this earlier case, I just wanted to raise, and politely criticise, something said by Arnold J in the course of his judgment.

The argument was that, when considering whether to enforce a charging order, the court – as a public authority – was obliged to consider, inter alia, the human rights of the occupier (including, as here, an innocent occupier) and was not permitted to make an order which violated Art. 8.

After considering two previous High Court decisions, Arnold J held, at [50] that the power to enforce a charging order (i.e. by order for sale) was, in principle, compatible with the Convention and that (at least in cases brought under the Trusts of Land and Appointment of Trustees Act 1996) any obligation on the court was discharged by considering the factors specified in s.15, 1996 Act:

(a) the intention of the parties who created the trust;

(b) the purpose for which the property is held;

(c) the welfare of any child who occupies or might reasonably be expected to occupy the property as his home;

(d) the interests of a secured creditor; and,

(e) the wishes of the beneficiaries.

In addition, the court should consider the A1P1 rights of the creditor. It was not, however, necessary for the court “explicitly to consider whether an order for sale is a proportionate interference with the Article 8 rights of those involved.”

No, no and thrice no I say. As Zehentner v Austria (see our much-loved note by Dave, here) – itself a charging order/order for sale case (well, the Austrian equivalent) – said:

In this context the Court has already held that the loss of one’s home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention (Zehentner at [59])

Proportionality. Not some occasional foreign jaunt only to be resorted to in extreme cases but central to the protection of human rights.

J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.

1 Comment

  1. simply wondered

    and given the fact that not only interim charging orders but final ones are handed out like sweeties in the county courts, the decision to enforce an order for sale must be subject to a full examination of the facts and subject to the principle of proportionality.


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