Summary

A court could not order a defendant to make a payment into court under r.25.1(1)(l) Civil Procedure Rules 1998 SI 1998/3132 because the debt alleged to be owed to the claimant did not constitute a "specified fund" within the meaning of that rule.

Facts

Application by the defendant ('D') to set aside an order obtained ex parte by the claimant ('M') that D should pay into court the debt of £900,000 which M alleged was owed to her by D. M, who was suing D as personal representative, was concerned that unless action occurred quickly D would transfer the funds thus making them unobtainable. The issue raised on this application was whether the court had jurisdiction to make such an order under CPR 25.1(1)(l), which turned on whether the alleged debt constituted a "specified fund". D argued that such an order would have the effect, if complied with, of making M a secured creditor in respect of the payment into court with priority over all other creditors, and this would be unjust.

Held

(1) M was not entitled to invoke CPR 25.1(1)(l) as the debt could not be constituted to be a "specified fund". Any debt owed by D to M was a chose in action vested in M. It was not itself a specified fund nor did it give rise to the existence of a specified fund in which M had a proprietary interest. (2) An alternative course for M was to apply for a freezing order under CPR 25.1(1)(f)(ii). (3) If M had been right in her contention, then that remedy would be available to all creditors, and if it were, it would achieve the same practical result as a conditional order on an application for summary judgment. (4) It was going too far to say that such an order would cause M to be a secured creditor, as D had contended.

Order set aside.