Charging Order - Advice please....

I had read up on here and national debtline website that a charging order could only be issued when payments where missed, ( I haven't missed one payment)

Specialist Support has received a number of enquiries from advisers where a district judge has made an instalment order and at the same time given the creditor leave to apply for a charging order, or has given the creditor leave to apply for a charging order even though there was already an instalment order in place. These orders have been made at a hearing after which there is no right to ask for re-determination.

The fact that district judges are making such orders may be due to an incorrect statement in the Green Book which all the district judges refer to. The notes to CPR3.3 [1] on page 1950, anticipate the insertion of s1(7) into the Charging Orders Act 1979, by s93 of the Tribunals, Courts and Enforcement Act 2007 (TCEA), where the fact that the debt is payable by instalments and there has been no default in payment does not prevent the court from making a charging order. This is incorrect because s93 has not been brought into force. Fortunately on p1943, beneath s1 of the 1979 Act it is noted that “Sub-sections (6) to (8) are inserted by the [TCEA] with effect from a date to be appointed.”

Indeed, there are currently no plans to bring this provision into force – see the ministerial statement from 17 March beginning at http://www.publications.parliament.u...0317m0001.htm.

The correct position is that where the county court has made an order for payment of any sum of money by instalments, execution on the order shall not be issued until after default in payment of some instalment according to the order: s86(1) County Courts Act 1984.

For this purpose, ‘execution’ includes a charging order. On the other hand, a charging order can be made despite the making of an instalment order where the instalment order was made after the date of the interim order (for example, on a variation application). The authority for this is Ropaigealach v Allied Irish Bank [2001] EWCA Civ 1790. Instalment orders are made under s71(1) of the County Courts Act 1984 and there is no power to attach conditions regarding enforcement to such an order.

Where an adviser is present in court and such an order is proposed, the adviser should point out to the district judge that s/he has no jurisdiction to make such an order. When advising on this issue after the event, it is essential that advisers obtain a copy of the order and look at the exact wording.

Where the court makes a forthwith order and gives the creditor leave to issue a charging order whilst staying all other enforcement so long as the client makes specified payments (so-called 'hybrid orders'), that is not an instalment order for this purpose.

It is an order for payment forthwith with a stay of enforcement: such orders are made under s71(2) which specifically allows conditions to be attached.