England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY COURT
(HIS HONOUR JUDGE COLES)

		Royal Courts of Justice Strand London WC2 Thursday, 15th February 2001

1. LORD JUSTICE PILL: This is an application by Mr Hooper for permission to appeal against a decision of His Honour Judge Coles made on 12th January 2001. The judge made an order refusing Mr Hooper's application for suspending a warrant of possession in relation to his home. The judge suspended the order for seven days in order to give the applicant an opportunity to apply to this Court. The subsequent course of events is set out in a judgment which I delivered on 18th April 2000 of which an approved transcript is available. The Court suspended the operation of the warrant in circumstances which it regarded as exceptional.
2. Mr Hooper has a mortgage with the proposed respondents with respect to a house in which he and his wife have lived for many years. The payments due are now approximately £2,750 a month and there are substantial arrears on the mortgage. There were applications before the county court prior to the order of 12th January. Mr Hooper accepts that his record of payments to that date had been "truly appalling". There were two hearings before this Court in January and a third on 18th April, all of substantial length. There was no doubt that substantial payments had been made by the applicant following the order by Judge Coles. The circumstances which the Court regarded as exceptional on 18th of January were because of substantial payments made by Mr Hooper and because the property had been the home of the family for a very long time. As set out in the judgment, Mr Hooper indicated the optimism which he felt about his prospects.
3. The application for permission to appeal was adjourned on 18th April upon strict terms set out in the judgment which I delivered and with which Lord Justice Mummery agreed. They included a requirement that on the third day of each month the applicant pay the sum of £2,743.53 to the bank (paragraph 22 of the judgment). "If on any occasion that obligation is not met, then the suspension terminates."That obligation has not been met. The extent to which it has not been met is the subject of dispute (Mr Hooper accepts that it has not been met) and documents produced of the mortgage account with Sun Banking confirm that position. These are not mere technical failures.
4. I am satisfied, having heard the submissions from Mr Jones QC for the bank as well as from Mr Hooper, that there have been significant defaults since August 2000. Mr Hooper says that there have been failures by his bank and misunderstandings and that the Court should take a light view of the defaults which he accepts have occurred. In the circumstances I am not prepared to do that. Mr Hooper said that he wished to explain why defaults were made. He expresses to the Court today, as on previous occasions, very persuasively how bright his prospects now are. He says that he was the most successful person in his company, won a holiday in the West Indies late last year, and he has prospects of very substantial payments being made to him in the near future. He says that he is now in a position to meet the monthly payments and to do so promptly and without the problems which plainly have occurred.
5. The mortgage account clearly shows defaults in the latter part of the year 2000. Mr Hooper accepts that, because of his truly appalling record in the past, he has no ground on which to appeal the order of Judge Coles. What he submits is that in these exceptional circumstances the application should be adjourned as, in effect, a to allow the warrant's execution to be suspended for a further period.
6. I am not prepared to take that course. It is clear that there are no merits in the appeal which is proposed. The Court was prepared in April, following the submissions to which I have referred, which themselves followed earlier submissions in January, to allow the warrant to be suspended. That suspension has now terminated and a warrant has been issued and is due to have effect on 19th February.
7. The course taken by this Court in April was indeed exceptional. This Court cannot be in a position of periodically hearing applications, however persuasive, from a litigant in circumstances like them. As Mr Jones has pointed out, the matter has been dealt with in the county court and this Court cannot go on taking up a function which is plainly not its proper function. It is unfair to other litigants, some of whom are waiting to come on today as they have been on other occasions, and this Court must not allow itself to go on performing the function which Mr Hooper requests it should perform. However persuasively the submissions are put, as Mr Jones has said, the Court is in danger of "locking itself" into a continuing saga. Neither is it fair to the respondents who have to incur costs in being represented in court.
8. The simple answer would have been for Mr Hooper to ensure that payments were made. In April due to exceptional circumstances the Court gave him the opportunity to do that. He has not done so. He has defaulted in a significant way. It follows that not only is the application for permission to appeal now refused, but I do not accede to his application that the warrant of possession should be suspended. The existing suspension has gone by reason of his default. I decline to order a further suspension. In the event that there should be any doubt about it, I confirm that the suspension previously ordered has been terminated.
9. This application accordingly is refused.
(Application dismissed; extension of time not allowed)