England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
(Mr Recorder Hall)

		Royal Courts of Justice Strand London WC2
		Tuesday 31st July, 2001

1. LORD JUSTICE ALDOUS: The applicant, Miss Diane Desorties, seeks permission to appeal against the judgment of Mr Recorder Hall sitting at the Brighton County Court made on 11th June 1999. In that judgment he dismissed the appellant's appeal against an order for possession that had been made on 10th March 1999. Thus the applicant seeks permission for a second tier appeal. It follows that such permission will only be given if a point of principle or practice arises or there is some other compelling reason for this court to consider the case.
2. These proceedings arise out of a loan made by Abbey National to the applicant covered by a charge by way of legal mortgage on a property known as 30 Saxonbury, Ashton Rise, Brighton BN2 2QP. That mortgage was in standard terms under which the Abbey National had power to require repayment of the full sum loaned if, amongst other things, the applicant failed to make the appropriate payments.
3. In a summons dated 30th October 1998 Abbey National sought possession of the property and payment of arrears of just over £1,285. The applicant in her reply to the possession summons accepted that she was in arrears in an amount of just over £897 and that since the issue of the possession summons she had been unable to make further payments. She was in receipt of income support. The reasons that led her into arrears were stated in her reply to be:

"A long period of unemployment has led to these circumstances. A period which in itself has created a vacuum and vicious circle whereby help of any sort was unavailable, accentuated by the difficulty one may experience when residing in a foreign country and with hardly any money. Owing to this difficulty of finding work in this country or adequate training, I now must seek professional work elsewhere and have started taking the appropriate steps. I would suffer extreme hardship by being ordered to leave the property as I have nowhere else to go in England and only a very temporary arrangement in France. This would also upset in very exceptional manner, the steps I am now taking to find training for a real professional job."

4. It was upon that evidence that the possession summons came before the Brighton County Court and as might have been expected a suspended possession order was made in these terms:

"The court orders that the defendant(s) give the plaintiff possession of 8th Floor, 3O Saxonbury, Ashton Rise, Brighton BN2 2QP on the 7 April 1999."

5. The order went on to adjudge that the defendant should pay the plaintiff just over £27,000 and ordered that the order for possession should not be enforced so long as the defendant paid to the plaintiff the arrears due under the mortgage at a rate of £80 per month.
6. The applicant appealed against that decision. The appeal came before Mr Recorder Hall and was dismissed on 11th June 1999.
7. It seems that that the applicant did not make the appropriate payments and therefore a warrant for possession was issued to be executed on 14th September 1999.
8. On 25th August 1999 the applicant wrote to the Court Manager at Brighton County Court stating that the order made by Mr Recorder Hall was in contradictory terms. Her complaint was placed before Mr Recorder Hall who stated that he had come to the conclusion that there were no grounds for appeal, but when dismissing the appeal he had suggested to the representative in court for the claimant, the Abbey National, that they should provide information to the defendant in order to try and assist her in understanding how the arrears had been calculated. The judge concluded that there was no inconsistency or conflict between the order and the suggestion that he had made.
9. It seems that the judge's suggestion was taken up by the applicant, in that she contacted the solicitors acting for the Abbey National requesting a breakdown of her account to enable her to ascertain whether the correct amount of interest had been calculated. On 30th July 1999 those solicitors wrote to her enclosing a calculation and a schedule containing the end of years balances for the years 1992-1998 together with the interest rate changes for those years. It also contained a breakdown of the mortgage arrears. By a letter dated 9th August the applicant replied that she had read the enclosed documents but she did not understand the way that the interest was calculated. To that the solicitors replied on 18th August 1999 giving further information. In her reply of 25th August the applicant queried the calculation and requested answers to questions which she believed would further elucidate her problem. The solicitors replied to that letter on 7th August, but their answers did not satisfy the applicant. She wrote again on 20th December, but this time to the Abbey National Mortgage Centre. The Abbey National looked into the matter and after protracted correspondence advised her that the interest had been correctly calculated. They said in their letter of 25th February 2000:

"I would advise that our Complaint Procedures have now been exhausted, and this entitles you to refer the matter to the Office of the Banking Ombudsman, providing you do so within 6 months of the date of this letter. However, I should point out that I believe your complaint will fall outside the jurisdiction of the Ombudsman as this matter has already been subject to Court Proceedings. In these circumstances, you would normally need to pursue any complaint through the Courts."

10. That letter did not satisfy the applicant. She wrote again on 26th March. The Abbey National replied on 10th April reiterating that her account had been thoroughly checked and was correct.
11. The matter did not rest there. The applicant continued to write letters complaining about the way that the Abbey National had carried out their accounting. The matter came to a head on 12th March when the Abbey National wrote:

"I have discussed the issues you have raised with the Secretariat Department who have assured me that your queries have been fully answered. They have carried out the relevant calculations and cannot find any error.

It is due to this that I must advise you that this office cannot enter into any further correspondence relating to this matter as a deadlock letter has been issued.

Should you wish to take this matter further, please refer to the Banking Ombudsman as previously advised by the Secretariat Department."

12. While all this correspondence was going on the Abbey National had taken possession of 30 Saxonbury, Ashton Rise and it had been sold, with the result that there was, after a repayment of the mortgage, a surplus of just over £27,000. A cheque for the appropriate amount together with a completion statement was sent to the applicant on 12th January 2000.
13. In the application for permission to appeal, the applicant seeks to challenge the sum ordered to be paid by the County Court. She alleges non-compliance by the Abbey National with a legal obligation to disclose the required information to enable the sum to be properly calculated. She complains that it had been agreed that the required information to enable her to check the account should be sent to her and that that had not been done. She alleges there was a denial and refusal of her right to access to suitable information since the hearings in the County Court and that had kept her in ignorance of what precisely she was entitled to. She wishes to submit that the decision of Mr Recorder Hall wrongly discharged the claimant of their responsibility to prove their allegations. In effect she wishes to raise before this court the matters that she raised in correspondence after the order of Mr Recorder Hall.
14. What is quite clear is that no principle of law arises. Nor is there a compelling reason for another appeal. It follows that this court has no jurisdiction to grant permission to appeal and I refuse that permission.
ORDER: Application for permission to appeal refused. (Order not form of approved judgment)