Uncertain Futures in Pensions Enforcement – What happened to Blight v Brewster?

The remedy in Blight v Brewster [2012] EWHC 165 (Ch) finds itself often mentioned but never particularised in the context of enforcement in financial remedies. A civil remedy in origin, it has had the Law Commission’s endorsement, wide judicial support and potentially one instance in a financial remedies matter where it was (apparently) successfully employed.

That remedy has now been partially overridden by the Court of Appeal decision in Manolete Partners Plc v White [2024] EWCA Civ 1418. So while the original remedy appears to remain in existence (its scope now drastically reduced), it would seem that it is no longer an attractive method of enforcement.

Blight v Brewster

In Blight v Brewster [2012] EWHC 165 (Ch), the claimant and others had been defrauded by the defendant. Summary judgment was obtained. The defendant was over 55 and thus eligible to draw down 25% of the value of his pension as a tax free lump sum. Since the claimant creditors were not able to enforce directly against the pension, they sought an order requiring the defendant to make an election on the draw down. When he had done that, he would then have a capital sum which the claimants could obtain a third party debt order against.

It was held that the court had the jurisdiction in aid of enforcement of a claimant’s judgment debt, to grant an injunction compelling the defendant to draw down his pension, to appoint the claimant’s solicitor to make the necessary election on the defendant’s behalf then to enable a third party debt order to take effect, and that receivership by way of equitable execution is also available as a means of enforcement as the right to elect to take a pension payment is tantamount to ownership:

‘58 The Defendant has a right to elect to drawdown 25% of his pension as a tax free sum. The question is whether that right and the 25% can be reached by execution in order to recover the balance or part of the balance of the judgment debt.

59 The Claimants applied for a third party debt order. This was clearly unviable taken by itself, because the right to elect the drawdown was not a debt. A debt could only arise if the election were made. The District Judge below so held, in my view correctly. The Claimants also argued that the court could compel the Defendant to elect to take his lump sum now. However, the District Judge held:

“The court cannot force the Defendant to make an election that is not in his financial interest and there is no jurisdiction to make any form of mandatory order against the Defendant in these circumstances.”

…

75 In my judgment, it is not necessary to go to the disproportionate trouble and expense in a case of this kind to appoint a receiver by way of equitable execution and then force the Defendant to delegate his power of withdrawal to the Receiver, as was done in the Privy Council case. The Defendant in this case can simply be ordered to delegate the power of election to the Claimants’ solicitor and for the court to authorise the solicitor to make the election in his name. Upon the election being made, the sum payable by Canada Life will then become due to the Defendant and can be made the subject of the third party debt order.

76 I propose therefore to order that the Defendant sign such letter as may be presented to him by the Claimants’ solicitors to delegate to the Claimant’s solicitor the power to make in the Defendant’s name the election to receive his tax free 25% payment, up to the amount needed to repay the balance of the judgment debt. I also propose to order that if the Defendant does not comply with this order, the Claimants be authorised by the court to write in the Defendant’s name to Canada Life making the election on his behalf and in his name. There is no question here of assigning the right to make the election; there is simply a question of authorising another party to act on the Defendant’s behalf. A copy of the order of the court together with the Claimant’s solicitor’s letter should be sufficient authority for Canada Life to act on the election.’

This approach is a collection of distinct orders that produce the overall effect of an enforcement:

(1) The decision itself assumes that the debtor can draw a tax-free lump sum – it has no consideration of an early draw down with tax implications, for example. The draw down is expected to take place imminently.

(2) Without relying on either the power of equitable execution or the Family Court’s power to appoint receivers, a mandatory injunction (per s 37 Senior Courts Act 1981) is implemented to appoint the creditor’s solicitor as a type of receiver. This is achieved by way of delegated election in the event that the debtor fails to make the draw down with the solicitor authorised to make the election direct to the pension provider.

(3) A third party debt order is then implemented to make the sum due, once received, to the creditor. It is the debt from the election itself to which the third party debt order attaches itself to, as opposed to the right to make the election in the first place (see [59], quoted above). This is explored in further detail later.

At the time of the decision, there was significant commentary around its importance. In 2016, the Law Commission published Enforcement of Family Financial Orders (Law Com No 370), which suggested significant reform to enforcement powers. Its recommendations were surprisingly definite at the time:

‘9.7 … However, despite the potential for creative use of existing methods of enforcement, we think there are advantages in giving the court the power to make pension orders, which can be made directly against a debtor’s pension fund for the purposes of enforcement. First, a pension sharing order enables the creditor to enforce against pension assets before the debtor reaches retirement age. This means creditors can secure the funds they are owed at an earlier stage. Further, where the creditor is older than the debtor, the creditor will be able to draw a lump sum or receive an income from his or her share of the pension at an earlier time than the debtor would have been able to access those funds. Secondly, a pension attachment order for the purposes of enforcement will avoid the artificial two-step approach employed in Blight v Brewster, and should be more efficient.’

The Law Commission did recognise that there had to be limitations on any power over both pension sharing and pension attachment orders – it posited four distinct scenarios (at 9.25) where there could be restrictions on pension orders as enforcement, reflecting existing restrictions under the Matrimonial Causes Act 1973 redistributive powers, and gave its views on each of those:

(1) Where pension sharing orders have been previously made between the same parties – the Law Commission accepted the view of consultees that preventing further pension sharing orders from being made would limit the available enforcement methods.

(2) Where pension sharing orders have been previously made but for the benefit of someone who is not a party to the enforcement – under the pre-existing MCA 1973 regime, there is no bar from a second spouse obtaining a pension sharing order against a party where a previous spouse has already obtained their own pension sharing order. So the issue shouldn’t really matter in the context of enforcement.

(3) Where a pension attachment order has been previously made between the same parties. The Law Commission distinguished that a pension sharing order should still be available between the same parties even if a pension attachment order had already been implemented. That said, the Law Commission recognised that if a pension sharing order was made, it might not be of any benefit to the creditor. A pension sharing order would naturally reduce the available capital in the pension, which in turn would reduce any pension attachment order. Instead of making a second pensions attachment order, for example, the Law Commission was of the view that it could be more efficient to simply vary the existing pension attachment order (see 9.32 and 9.33).

(4) Where a pension attachment order has been previously made but for the benefit of someone who is not a party to the enforcement. The Law Commission agreed that this circumstance needed to be barred from enforcement when it came to pension sharing orders only. Such orders ought not to be made where it would prejudice a third party. It could see no reason why a second pension attachment order couldn’t be implemented in this situation by the subsequent spouse. There was no reason in financial remedy proceedings why a further pension attachment order couldn’t be made against a pension which already had a pension attachment order applied to it for the benefit of another party.

All these recommendations were taken up in July 2018 when the government agreed to explore the Law Commission’s recommendations for non-legislative amendments.

Case law

The Court of Appeal accepted the existence of the remedy in Horton v Henry [2016] EWCA Civ 989. The decision related to pensions and bankruptcy. The court held any pension entitlement in which the bankrupt has the existing right to draw an income but has elected not to exercise such a right cannot be regarded as part of the bankrupt’s income. In such circumstances, the trustee in bankruptcy has no power to exercise that same right and draw income on the bankrupt’s behalf. It was accepted that the remedy available under Blight v Brewster existed, though was not applicable here.

The first mention of the remedy in a family law context comes from Mostyn J in Goyal v Goyal (No 2) [2016] EWFC 50 and Goyal v Goyal (No 3) [2017] EWFC 1. In that case, the court implemented an injunction for the husband to procure payments to go to the wife. The injunction mandated the husband to make an election to the annuity provider for two-thirds of the income to be paid directly to the wife. Mostyn J did confirm that a foreign pension can’t be subject to a s 24B MCA 1973 pension sharing order, but made an injunction ‘pursuant to the principle expounded in Blight v Brewster’ at [14].

The family courts went on for some time accepting the remedy existed but, to date, no single reported incidence of the remedy being deployed actually exists. The closest thing we have is an article from 2017 referring to an unreported judgment obtained by Philip Cayford KC and Beverley Morris – ‘An effective method of enforcement? Blight v Brewster’, [2017] Fam Law 219.

The authors reported they successfully obtained a Blight v Brewster order to enforce an order for costs from the Court of Appeal. What makes this even more interesting is that the remedy was obtained against an occupational pension scheme in respect of which the respondent had not sought to commute the lump sum. Indeed, it was an NHS scheme, so not just an occupational scheme but also a public sector scheme. No mention is made of s 91(2) Pensions Act 1995.

Following the appropriate components of Blight v Brewster, the applicant’s solicitor was authorised to make the election to draw the pension and the lump sum early, with an attached freezing order and provision to vary it to facilitate the payment. The issue arose because the trustees of the fund made a complaint that no order assigning or charging a debt owed by the Crown can be made in favour of any third party and that the NHS pension, owned by the Crown, would fall within such prohibition.

The court appeared unconcerned whether the remedy applied to a money purchase scheme or a defined benefit scheme. The High Court went on to say that the election by the respondent to take a lump sum from his NHS pension fund via the applicant’s solicitors would not constitute an assignment in breach of National Health Service Pension Scheme Regulations 1995 (SI 1995/300), reg T3. Further judgments referred to the remedy:

(1) Amin v Amin [2017] EWCA Civ 1114: the Court of Appeal approved Moylan J’s decision to leave open a pension sharing order claim pending the payment of a lump sum if it were to be later utilised for enforcement. The husband was also prohibited from dealing with his pension in anticipation of using a pension sharing order to enforce the debt. The remedy was mentioned.

(2) Brake & Anor v Guy & Ors [2022] EWHC 1746 (Ch): here, the High Court used a third party debt order enforcing a cost against a pension provider and granted an injunction, requiring the pension to be drawn down on a specific date. This is best described as a ‘species’ of Blight v Brewster order.

(3) AW v AH [2022] EWFC 195: refers to Blight v Brewster but in relation to requirements about non-compliance before the implementation of orders under s 39 SCA 1981.

(4) Lindsay v O’Loughnane [2022] EWHC 1829 (QB) is not a family case, but saw the High Court positively endorsing and implementing the remedy. What stands out here is that questions were raised about the suitability of a third party debt order under the Blight v Brewster remedy when no debt had yet been accrued. The order in that case thus eschewed the need for a third party debt order and an order was only made for a mandatory injunction under s 37 SCA 1981 instead.

(5) Cohen v O’Leary [2023] EWHC 1939 (Ch) also saw positive implementation of the remedy in a bankruptcy setting. Here, the High Court followed the approach in Bacci v Green [2022] EWCA Civ 1393 (see below) where a draw down on the pension was permitted to satisfy a breach of trust.

(6) AXA v BYB (QLR: Financial Remedies) [2023] EWFC 251 (B) makes a nod towards Blight v Brewster and considered that making a pension sharing order in lieu of a costs order ‘goes with the grain of what the Law Commission commends’.

Those authorities all confirm that the remedy exists but generally make no comments on the procedure for the same.

Manolete Partners Plc v White

In Manolete Partners Plc v White [2024] EWCA Civ 1418, the appellant was successful in arguing that under s 91(1) and (2) Pensions Act 1995, the High Court was not permitted to make an order which required the respondent to exercise his pension rights, receive his pension and then use it to discharge a judgment debt. The High Court had made an order requiring the appellant to exercise his rights to draw down his pension, to receive that pension into a bank account in his own name and to keep the respondents informed so that they could apply to discharge the judgment by way of enforcement at later date.

The Court of Appeal disagreed and held that the injunction and notification provisions could not be looked at separately from the enforcement proceedings which they were intended to facilitate. They regarded this as a breach of s 91(2) Pensions Act 1995 which prohibits the court from making an order ‘the effect of which would be that [a person] would be restrained from receiving their occupational pension’.

So, the court held that the injunction and notification provisions could not be distinguished from the enforcement proceedings as a whole. The de facto outcome could only be that the appellant would be denied his pension, which breached s 91(2) Pensions Act 1995.

As for Blight v Brewster, the Court of Appeal had this to say:

‘For the present purposes, it is sufficient to note that in Blight v Brewster, claimants who have been the victims of fraud, and who had a judgment against the defendant fraudster, obtained an order that the defendant should give notice to the trustees of his personal pension scheme to draw down a tax-free lump sum of 25% of the fund, so that the resultant debt due to the defendant from the trustees could be made the subject of a third party debt order in favour of the claimants. The case did not concern an occupational pension scheme, so the issue of s.91 did not arise.’

In one fell swoop, despite everything said by the Law Commission in its previous report and the unreported judgment referred to by Philip Cayford KC and Beverley Morris (neither of which were referred to the Court of Appeal), the entire remedy of Blight v Brewster was changed. It still exists, but now the issue of s 91(2) Pensions Act 1995 prevents Blight v Brewster relief being available against any occupational pension. The High Court’s guidance specifically on the NHS pension appears to have fallen entirely by the wayside. It would still be possible for a court to conclude that a Blight v Brewster assignment would not be in breach of National Health Service Pension Scheme Regulations 1995 (SI 1995/300), reg T3 as the remedy is not an ‘assignment’ within the meaning of the Regulations. However, it would still collide with s 91(2) Pensions Act 1995 as ‘restraining’ a party from accessing their occupational pension so the decision would certainly not be the same as before.

The impact that Manolete had on Blight v Brewster is significant. But the methodology between the two cases is distinct. Manolete was pursued with no suggested receiver to be appointed, simply a mandatory injunction with an order under s 39 SCA 1981 to allow the notice to be given by the creditor’s solicitor if the debtor did not give the written notice to draw down. The respondent’s intent was that since the appellant’s pension was not yet in payment, they had asked for an order where their solicitors were authorised to exercise his pension rights, receive his pension and pay it to Manolete in order to discharge the judgment debt.

After Manolete

Century Property (Leeds) Ltd v Aldiss [2025] EWHC 1348 (KB) saw an application for injunctions under s 37 SCA 1981 (the mandatory injunction and receiver components of the Blight v Brewster remedy). Like Lindsay v O’Loughnane, the court only addressed the issue of the injunction and did not consider a third party debt order. The court was satisfied on the evidence that the defendant was fully entitled to entirety of his pension fund as well as his 25% tax free draw down.

Meanwhile, in Zubarev & Anor v Singh & Ors [2025] EWHC 2242 (Ch), three specific issues were considered:

(1) whether each of the pensions held by the defendants with the third party were occupational pensions schemes (per s 1 Pensions Act 1995)

(2) whether the court needed to consider the protections under s 91(1) and (2) Pensions Act 1995 for occupational schemes if it was exercising its discretion to make a final interim third party debt order in respect of a personal pension scheme; and

(3) whether the court should exercise that discretion to grant third party debt orders.

The pensions in question were accepted as personal schemes, so the actual jurisdiction of Blight v Brewster post-Manolete was not specifically engaged. The decision was more focussed on the third party debt order component of the Blight v Brewster remedy and whether it could be implemented in advance of the draw down to settle the judgment debt. Criticism was made in the extant case as to how a third party debt order for the payment of the lump sum could be made before a debt had even come into existence, following what had been previously said in Lindsay v O’Loughnane. The trail of authorities shows changes to Blight v Brewster’s individual components. Authorities like Lindsay v O’Loughnane, Century Property (Leeds) and Zubarev v Singh have all brought into question the implementation of a third party debt order to support a Blight v Brewster enforcement. Those decisions simply did away with the requirement and elected to use only the s 37 SCA 1981 powers of injunction and appointment of receiver. Similarly, Manolete has restated protections to occupational pension schemes. None of these changes suggest the remedy no longer exists, but it has certainly changed in personality.

The road goes ever on

The Law Commission’s Scoping Report on Financial Remedies on Divorce and Dissolution was published in December 2024 and made no mention of Blight v Brewster, albeit it did confirm the Law Commission’s prior recommendations from the 2016 report. There are still few reported examples of Blight v Brewster applications for enforcement taking place with the remedy becoming even more restricted in light of Manolete.

The Law Commission’s recommendations back in 2016 are still relevant. Pension sharing orders as enforcement, for example, have never been fully explored. The most creative implementation we have seen took place in AXA v BYB (QLR: Financial Remedies) [2023] EWFC 251 (B) where Recorder Taylor used a pension sharing order to implement a costs order in much the same spirit as a Blight v Brewster remedy might have looked. It is still not an example of the remedy being implemented, but it does show how pension sharing orders can be used to find an equitable and creative solution. Indeed, in that case, there were notable problems with disclosure, limited assets in the jurisdiction and a central dispute about the ownership of a foreign property.

Some exceptions to the protections of s 91(2) Pensions Act 1995 might exist though. The decision of Newey LJ in the Court of Appeal in Bacci v Green [2022] EWCA Civ 1393 was referred to in the Manolete decision. An order under s 37 SCA 1981 was made in relation to an occupational scheme and it was concluded that the s 91 Pensions Act 1995 did not restrict the court’s jurisdiction (though a third party debt order was not made in that case, in line with other authorities):

‘33 In my view, the public policy which led Parliament to protect pension rights in bankruptcy will, at most, normally be a factor of very limited significance when a court is considering whether to grant relief to a creditor in respect of a judgment founded on fraud by the debtor. While Parliament evidently thought it right to provide protection for pension rights in bankruptcy, it is equally clear that its intention has been that debts arising from fraud should survive bankruptcy, and it has nowhere said that the creditor should then unable to have resort to the debtor’s pension rights in the way that he could have done pre-bankruptcy or a post-bankruptcy creditor could. Nor is that surprising. In Blight v Brewster, Mr Moss commented that “The idea that the fraudster and forgerer can enjoy an enhanced standard of living at his retirement instead of paying the judgment debt would be a very unattractive conclusion.” While Mr Moss made the remark in the particular case before him, it has wider resonance.’

There then, potentially, exists a route through which fraud could still be pleaded as a basis for circumventing the provisions of s 91(2) Pensions Act 1995. Fraud was an element of Blight v Brewster but not in Manolete itself. That seems unhelpful to the average financial remedy practitioner – is non-disclosure, for example, an example of fraud for our purposes in enforcement proceedings? What about non-compliance? Neither of those could reasonably come up as high as Newey LJ had suggested a matter of years prior to the Manolete decision.

There is another line of argument that s 91 Pensions Act 1995 does not prevent the court from making some orders which do interfere with occupational pensions in any event. Michael Horton, Rhys Taylor and Paul Cobley argued in ‘Protecting the pension sharing order: Part 2’, [2021] Fam Law 395 that s 44 Welfare Reform and Pensions Act 1999 disapplies the restrictions on alienation contained within s 91(2) Pensions Act 1995. The most obvious example of this is pension sharing orders themselves under s 24B MCA 1973. If Manolete were interpreted narrowly, then the actual power to make pension sharing orders would itself fall foul of s 91(2) Pensions Act 1995. The same would be true for a s 37 MCA 1973 freezing order to protect any pension. The role of s 44 Welfare Reform and Pensions Act 1999 is to prevent that mischief. The authors proposed an approach which allowed for the pension to still be drawn into a nominated account and frozen and would not fall foul of s 91. This could be achieved via s 37 MCA 1973 as a workable alternative. That said, the argument predates Manolete and it is not known whether it will still apply thereafter.

Does it mean that Blight v Brewster as an enforcement remedy ceases to exist? We have no other options available if the scheme is occupational. The existing statutory framework of the MCA 1973 does not allow us to apply for pension sharing orders in enforcement. If the scheme is private, then the Court of Appeal appears happy that the Pensions Act 1995 will be undisturbed so, for all intents and purposes, Blight v Brewster still exists there. How often is that likely to be the case in the average financial remedies case? What of the practicalities? It would still have to be a unique state of affairs where enforcement calls upon a pension ahead of or alongside any other asset (e.g. property, bank accounts, etc.) that Blight v Brewster would be the leading approach.

It stands to reason, following Manolete, that the most successful implementation of Blight v Brewster in financial remedies enforcement would be where enforcement relates to a lump sum, the pension is private, the tax free lump sum is impending (debtor is aged 55, the ‘minimum pension age’ is shortly to increase to 57) and the lump sum has not yet been drawn. To be fair, most of those criteria were still the case in the prior iteration of the remedy. The condition via Manolete is that the pension cannot be an occupational scheme. Subsequent authorities have also appeared to disregard the requirement for a third party debt order, since the court cannot make such an order for a debt that is yet to exist.

Maybe it makes little difference. In all the time the remedy existed, the method of application was never made abundantly clear. It was and continues to remain absent under the specific enforcement powers the court has and has only been mentioned as being part of its general enforcement powers. Perhaps the very fact that there are no reported decisions of the remedy suggests that it wasn’t even needed in the first place?

The only option is to take the Law Commission’s original proposals and for these be enshrined into enforcement by way of statute. We can only hope that the comprehensive reassessment of financial remedies law that is coming in the distant future will address it. For now, Blight v Brewster is not what it used to be.