PT-2022-BRS-000100 - [2025] EWHC 2743 (Ch)

Secondly, there is the question whether the court could have made an order under section 39 of the Senior Courts Act 1981, on the basis that the claimant had not by then then neglected to sign the documents. Section 39(1) relevantly provides:

“Where the High Court … has given or made a judgment or order directing a person to execute any conveyance, contract or other document … then, if that person—

(a)

neglects or refuses to comply with the judgment or order …

[that court] may, on such terms and conditions, if any, as may be just, order that the conveyance, contract or other document shall be executed … by such person as the court may nominate for that purpose.”

I was referred to Isbilen v Turk [2021] EWHC 3425 (Ch). I agree that, in that case, deputy judge Stuart Isaacs QC said:

“45.

… I am not satisfied that there is jurisdiction under section 39(1) to make the orders requested. If Mr Turk is himself ordered to produce the requested statements and declines to comply with the order, he may be in contempt of court and the jurisdiction under section 39(1) comes into play. But Mr Turk has not currently neglected or refused to comply with the orders made on the Disclosure Applications. If he were to do so, then the court's jurisdiction under section 39(1) would be triggered and the court would have to consider whether to order that another person should execute the documents necessary to obtain the requested documents. There is no jurisdiction under section 39(1) to make an order against Mr Turk himself.”

However, it does not appear from the judgment of the deputy judge that he was referred to the decision of Parker J in Savage v Norton [1908] 1 Ch 290. By that decision, the judge refused to make an anticipatory order under the predecessor of section 39, but said (at 297):

“I do not decide that there is no case in which the Court may make an anticipatory order, because it may be that the person ordered to transfer has in fact by his conduct already shewn the Court that he does and will refuse to do the act which is ordered to be done, in which case the Court may, shewing on the face of the order that there was that refusal, make an order at once in very much the same terms as those of the order in the present case.”

And, much more recently, in Juul Labs, Inc v Quick Juul Ltd [2018] EWHC 3335 (IPEC), Snowden J in fact made such an anticipatory order, saying:

“I also think it is appropriate to include the provisions for a Master to execute the letters in default of compliance in the same order as the requirement upon the defendants to execute the documents. Under section 39 of the Senior Courts Act 1981 , although it is not generally the case that one makes an order in anticipation of a failure to execute, that can be done where the defendant has already shown by his conduct that he refuses and will refuse to execute: see Savage v Norton [1908] 1 Ch 290.”

The same point was made in Century Property (Leeds) Ltd v Eville & Jones Group Ltd [2025] EWHC 1348 (KB), [35].

I regret that I must also record that that neither Savage v Norton nor Juul Labs, Inc v Quick Juul Ltd was cited to me (by either side) in Gee v Gee [2020] EWHC 1842 (Ch). This was another case where this point was raised. In my judgment in that case I said:

“26.

It was common ground at the hearing that the words ‘neglects or refuses to comply with the judgment or order’ in subsection (1)(a) are jurisdictional, so that the court cannot make an order under this section unless it is first satisfied that the test represented by those words (or the alternative in paragraph (b)) is met.”

Had I known of those decisions, I should at least have been more circumspect in what I said there. Since the point was not argued, I cannot be sure of what my decision would have been if it had, though I think that my inclination would have been to follow the recent decision of Snowden J.

However, I do not think it is necessary for me to reach any conclusion in the present case, either as to whether the words ‘neglects or refuses to comply with the judgment or order’ in subsection (1)(a) are jurisdictional, or (if not) as to whether the claimant’s conduct hitherto in this case showed that he would not comply with any order to execute the documents. This is because, even if the court would not have made the order under section 39, that was only a minor part of the relief being sought by the defendants on this application. As I pointed out earlier, it is not necessary to succeed on all points in order to be the successful party overall.