I used to agree with that view Melanie, it is logical and rational, until one of my lawyer friends drew my attention to this:
http://www.insolvency.gov.uk/freedomofi ... part_4.htm
Clause 9.103 is important:
"The court upon a without notice application by the creditor makes a charging order nisi. A charging order is not completed until it is made absolute, but once the order is made absolute, the charge operates from the date of the order nisi. Under the COA, section 3(4), a charge imposed by a charging order takes effect and is enforceable as if it were an equitable charge created by the debtor from the date of the making of the charging order nisi. It is liable to be set aside if the charging order is not made absolute."
Thus, if the interim charge has been made the only thing that can be guaranteed to stop it is a bankruptcy. Because the charge takes effect "as if made by the debtor as at the date of the order nisi" arguably a subsequently produced IVA proposal has to take account of the charge. The Court in which the charging order was made ought to give heed to an interim order (particularly if the order includes a stay of the action) but the simple convening of a meeting will not have any legal effect at all. As a result, unless the creditor votes at the meeting and fails to disclose or value his security then the debtor would appear to be stuffed. A wholly unsatisfactory state of affairs I agree, but yet another example of where one area over the law nullifies another.
I note you refer to some case law on this - do you have the case name please, so I can check it out, because I will be very happy if my view of this is wrong?
Thanks
ian
