McGowan v Potter: county court jurisdiction to enforce charging orders clarified

In Kirsten Elaine McGowan v Marie Bernadette Potter [2026] EWHC 595 (Ch), Mr David Halpern KC, sitting as a High Court judge, has resolved a jurisdictional question that, despite its practical importance, had remained undetermined since the County Court Jurisdiction Order 2014 raised the county court's equity limit from £30,000 to £350,000.

The proceedings arose from a neighbour dispute over a shared driveway. A county court had made a final charging order in the sum of £69,351.07 against the defendant's property and subsequently ordered its sale, vesting a 3,000-year legal term in the claimant under section 90 of the Law of Property Act 1925. The defendant later challenged the order as ultra vires, contending that the county court's powers under sections 90 and 91 of the LPA 1925 were subject to a £30,000 cap — the figure fixed by article 2(4) of the High Court and County Courts Jurisdiction Order 1991 and reflected in the text of sections 90(3) and 91(8) themselves.

The judge rejected that argument. The key to his reasoning is the distinction between the court's primary jurisdiction and its ancillary statutory powers. Following Ladup Ltd v Williams & Glyn's Bank plc [1985] 1 WLR 851, Halpern KC confirmed that the jurisdiction to order sale in enforcement of a charging order is an inherent jurisdiction of the court, not one derived from sections 90 or 91. Those provisions confer only ancillary powers — the ability to vest a legal term of years or appoint a person to convey — in support of the sale already ordered under the inherent jurisdiction. It followed that the appropriate jurisdictional limit was that applicable to the county court's equity jurisdiction under section 23(c) of the County Courts Act 1984: £350,000.

The historical analysis proved instructive. The £30,000 figure in sections 90(3) and 91(8) was introduced by Schedule 2 to the CCA 1984 and coincided with the equity limit at the time, making the amendment practically redundant even when enacted. The 2014 Order increased the equity jurisdiction without any corresponding amendment to the 1991 Order or to sections 90(3) and 91(8), creating the apparent divergence that gave rise to the present dispute. Halpern KC held that the amendments to the LPA 1925 were properly read as conferring, not restricting, county court jurisdiction — and that treating them as a ceiling on ancillary powers would produce an incoherent result given that the primary jurisdiction under section 23(c) already extended to £350,000. He also noted that a claimant could, in any event, rely on sections 47 and 50 of the Trustee Act 1925, which contain no equivalent financial restriction, as an alternative route to the same outcome.

The defendant's position on the second preliminary issue — that any order made without jurisdiction is automatically a nullity — was also dismissed. Applying R (Majera) v Secretary of State for the Home Department [2022] AC 461, Halpern KC reaffirmed that a court order must be obeyed unless and until set aside, even if it is alleged to have been made without jurisdiction. Earlier matrimonial authorities cited to the contrary were noted to have been displaced by that decision.

The practical consequence is that county courts may proceed to enforce charging orders by sale, including by exercising the vesting powers in sections 90 and 91, wherever the amount owing does not exceed £350,000 — a clarification that brings the position into line with what practitioners and the White Book had long assumed to be the case.

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