Traditionally, there are three sets of factors that have to be taken into account by a court when dealing with an Order for Sale application: firstly, CPR 70.10; secondly, TLTA 1996; and thirdly, Article 8 of ECHR. 


Applications to enforce a charging order are made under CPR 73.10. The White Book notes at 73.10.1 contain a useful summary of the key factors to be considered by the court when exercising its discretion: an Order for Sale is an extreme sanction; all the circumstances must be considered; an order is likely in the case of a debtor’s contumelious neglect or refusal to pay, or if without a sale the debt will not be paid off. 


On some occasions there will be an overlap with the power to order a sale under s14 of Trust of Land and Appointment of Trustees Act 1996. Moreover, in Close [2008] it was held that even where the 1996 Act is not engaged, the same factors should be considered in the exercise of the court’s discretion under CPR 73.10, so that the interests of children occupying the property will be taken into account. 


Another factor to consider is Article 8 of ECHR. This provides that: ‘(i) everyone has the right to respect for his private and family life, his home and... (ii) there shall be no interference by a public authority with the exercise of this right’. In Close [2008] it was made clear that the court’s discretion must be exercised compatibly with the Article 8 rights and ‘in a way which gives due respect to the rights of those living in the property, not just the debtors, to have respect for their family home and their lives’. 


However, it is worth noting that the cases do not show the courts carrying out an explicit consideration of the ‘proportionality’ of the proposed interference with Article 8 rights. However, we have recently had the landmark decision of the Supreme Court in Pinnock [2010] which involved possession orders sought by public authority landlords, with it being made clear that people facing eviction from their home in those circumstances are entitled to have the ‘proportionality’ of the decision to evict assessed by a court. Whilst that judgment did not deal with applications for Orders for Sale, it is fair to say that the decision does indicate a change in the approach by the English courts. Looking forward, therefore, the likelihood is that the courts will decide that Order for Sale cases should involve a consideration of Article 8 rights on the basis that this then involves looking at the ‘proportionality’ of the measure being taken (ie the court must look at more than merely the legal right to possession, but instead must look whether it is proportionate for the court to order a sale so as to enforce a simple debt). 


In practice, the change to an explicit proportionality test on applications for Orders for Sale would not amount to a great change. But, the likelihood is that this is a process that the courts will now require to be put into place, and the existing Article 8 considerations on an Order for Sale will now be expanded to include the issue of ‘proportionality’. See commentary on Manchester CC v Pinnock [2010] UKSC 45 in [2011] NLJ 51 (access free at www.practicalconveyancing.co.uk).