Assets in financial remedy proceedings commonly include real property which the court either orders to be sold or orders one party to transfer their interest to the other party. In cases where relations between parties have entirely broken down and one party is not accepting of the court’s decision, issues can arise in relation to ensuring that property transfers are complied with including signing the necessary documentation. This can be very frustrating to the party who is technically only a signature away from receiving resolution to often protracted proceedings, but seemingly no way to obtain the other party’s signature if they refuse to give it.
This is something of a long-standing issue in the family court. The good news to litigants is that by virtue of piecing together different pieces of legislation, the court does have the power to ensure that relevant transfer documents (usually a TR1 form from the UK Land Registry) can be signed without input from the party who has been ordered to complete the transfer.
The relevant statute is Section 39 of the Senior Courts Act 1981, by virtue of Section 38 of the County Courts Act 1984 as substituted by Section 3 of the Courts and Legal Services Act 1990.
Section 39 of the 1981 Act gives the court the power to direct that the document requiring signature shall be executed or indorsed “by such person as the court may nominate for that purpose” and then treated as though it was executed or indorsed by the person originally directed to do so (i.e. the party who has now not complied with the original order). In practice, the nominated person is usually a District Judge or solicitor of the party seeking such an order. The test for the court invoking this power is clearly set out in Section 39(1) of the 1981 Act which effectively outlines that where the High Court or family court has directed someone to sign a document, and they have either refused to do so or cannot be located, the court can then invoke its Section 39(1) powers of nomination.
What the court therefore needs to be satisfied of is (1) that there is an order of the High court or family court ordering a party to execute or indorse document (for which the definition is wide: “any conveyance, contract or other document”) and (2) they are a person who either neglects or refuses to do so (Section 39(1)(a)) or can’t be found (Section 39(1)(b)). In practice, this will likely require a D11 application to be made which clearly sets out the satisfaction of Section 39, together with a draft order and a copy of the original financial remedy order which the party in question has refused to comply with.
Section 38 of the 1984 Act extends the applicability of Section 39 of the Senior Courts Act 1989 to the County court:
“Subject to what follows, in any proceedings in the county court the court may make any order which could be made by the High Court if the proceedings were in the High Court.”
In the following “subject to” restrictions, the main points to note are that parameters on the types of orders the county court can make (Section 3(2)) and cannot make (Section 3(3).
Section 3(2) is relatively self-explanatory. In brief explanation of the less common terminology in Section 3(3), neither the county court nor family court can:
a. Order the following judicial writs:
- mandamus (a writ issued to a lower court to carry out an official act or requiring a person to carry out a public or statutory duty);
- certiorari (a writ requiring a higher court to review the decision of a lower court)
- prohibition (a writ restraining a lower court or public body from going beyond its usual powers).
b. Make any orders pursuant to regulations arising from this Section.
An application seeking execution or endorsement of a conveyance, contract or other document by a nominated person, other than the person who was originally ordered to complete the execution or endorsement but has not done so, does not require a writ of any kind or an order pursuant to the relevant regulations. This therefore means that Section 3(2) of the 1990 Act is no cause for concern to applicants.
Section 3 of the 1990 Act is a substitution for Section 38 of the 1984 Act (as well as Section 39 of the 1984 Act, which is not the subject of this article and is not to be confused with the above references to Section 39 of the 1981 Act). Section 3 adds in a further provision at subsection (4)(c) of Section 38 that the referenced Regulations “may make such provision with respect to matters of procedure as the Lord Chancellor considers expedient” and removes subsection 4(3) of Section 38 which states that the Regulations “may make different provision for different purposes”. These do not affect the application of Section 38 of the 1984 Act alongside Section 39 of the 1981 Act for the intended purpose this article has discussed.
In an application for the court or a solicitor to sign a document on behalf of a refusing or disappearing party, the court should be made aware of how all the sections fit together in giving it the requisite power to do what is sought. At present, this is the effective solution to bringing an end to finality of proceedings being delayed due to transfer documents not being signed.
