England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND A STAY OF EXECUTION APPLICATION
FOR PERMISSION TO APPEAL AN EXTENSION
OF TIME AND A STAY OF EXECUTION

		Royal Courts of Justice Strand London WC2 Friday, 20th July 2001

1. LORD JUSTICE MUMMERY: This is an application by Mrs Rosemary Gloria Smillie. The application is for permission to appealagainst the order of His Honour Judge Rice on 20th January 1999. There is also an application to extend the time for appealing and for a stay of execution of an order for possession of Mrs Smillie's properties at 19, 21 and 21A St Vincent Road, Westcliff on Sea.
2. The judge, sitting in the Southend County Court, had directed that the appeal by Mrs Smillie in her proceedings involving the National Westminster Bank, who claimed to have charges on the property, should be adjourned until a resolution of the appeal in the High Court in the same matter. Directions were then given in respect of filing a defence.
3. There is also an application for permission to appeal against an order made by His Honour Judge Yelton on 28th March 2001. Judge Yelton, also sitting in the Southend County Court, dismissed an application by Mrs Smillie to amend her notice of appeal, dismissed her application to reinstate her appeal, gave permission to National Westminster Bank to apply for a warrant of execution in relation to the Vincent Road property and refused permission to appeal.
4. There are transcripts of judgments of both Judge Rice and His Honour Judge Yelton. There is also another judgment in this long-running dispute given by Mr David Foskett QC, sitting as a Deputy Judge of the High Court. That judgment related to the validity of a compromise agreement made between the bank and Mrs Smillie on 9th June 1994 in the form of a consent order relating to proceedings which the bank had started against Mrs Smillie in September 1993. Those proceedings had been started because Mrs Smillie had not complied with the demand made by the bank for repayment of the monies lent to her, that demand having been made in June 1989 under the terms of two legal charges on the property, one dated 12th November 1982 and the other 2nd November 1984. Mr Foskett made an order setting aside the consent order. His judgment is dated 4th February 1999.
5. Mrs Smillie made submissions about the history of this case, which she describes in her applications as "confusing". The essence of her case is that she challenges the validity of the charges on the property. She thought that all the finance was being available to her under a guaranteed loan scheme and that the only charge involved would be on an insurance policy. Further submissions were made by Mr Goppe, who attends to assist Mrs Smillie as a McKenzie friend. He has addressed me, in particular, on the recent decisions of His Honour Judge Rice and His Honour Judge Yelton.
6. The conclusion which I have reached is that this case does require a further hearing in order to unravel, to the satisfaction of this court, the unusual circumstances of what would otherwise seem to be a perfectly straightforward case of a bank seeking to enforce its charges on property on the ground that there has been a default in complying with the terms of repayment. There certainly is a complication introduced into the case, which started as long ago as September 1993, by the consent order of 9th June 1994 having been set aside by the deputy judge, Mr Foskett QC, on 4th February 1999. It seems that the order for possession made on 26th November 1998 was on the basis of non-compliance by Mrs Smillie with the terms of the consent order, which has been subsequently invalidated. There does, in my view, arise some doubt as to what was the correct way in which to proceed before His Honour Judge Yelton. He took a clear and firm view of the matter. This may be right. But I am not satisfied at the moment that this matter has been satisfactorily sorted out between Mrs Smillie and the bank. I am unable to decide on the material at present before me that this case has a real prospect of success. I do not think such a decison can be made without the assistance of a hearing attended by both parties.
7. The order I propose to make is this: I do not grant permission to appeal, because I am not satisfied the appeal has a real prospect of success. I do not refuse permission to appeal, because I am not satisfied that everything has been satisfactorily explained to the court. I propose to adjourn this application. At the adjourned hearing the bank is to attend in order to make submissions on Mrs Smillie's applications. There will be an inter partes hearing. I would direct that the bank submits a skeleton argument explaining what is its response to Mrs Smillie's applications and why they would contend that this appeal has no real prospect of success. I should point out for the benefit of Mrs Smillie that this course is not necessarily beneficial to her. If there is a hearing attended by the bank costs will be incurred. The bank may well seek to add any costs it incurs on a successful opposition to this application to the security which they claim on these properties. So, the effect of my adjounment may be that, if Mrs Smillie is unsuccessful in her application at the inter partes hearing, added legal costs may fall on her.
Order: Application adjourned. A stay of execution