England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2 Friday, 6th April 2001

Friday, 6th April 2001

1. LORD JUSTICE RIX: This is an application for permission to appeal to the Court of Appeal by Mr Makael Bartholomew, who is the defendant in possession proceedings in the Ilford County Court. He is a litigant in person. He seeks permission to appeal against the judgment of His Honour Judge Platt of 29 November 2000, who declined to hear Mr Bartholomew's argument that he had made a good and complete tender of what was due under his mortgage to his mortgagee, Abbey National Plc, in September 2000 at a time when he had a purchaser under contract for his mortgaged property.
2. Briefly the position appears to be this. Mr Bartholomew fell into arrears in the payment of his mortgage. The mortgagee, the Abbey National, commenced proceedings for possession against him and on 14 December 1999 obtained a suspended possession order against him which included in it judgment for the sum of £66,337.07, inclusive at that time of all accrued interest to that date, legal and other costs and fees claimed to be due under the mortgage and as a result of the possession proceedings.
3. Mr Bartholomew then sought to maintain the payments which he was required to make under the suspended possession order and made some payments but continued to fall in arrears. After some attempts I think by the Abbey National to execute a warrant which was stayed on a number of occasions, Mr Bartholomew managed to obtain a purchaser for his flat and exchanged contracts with that purchaser, which, he tells me, was with the consent of Abbey National.
4. A new dispute arose on 11 September 2000 at a time when Mr Bartholomew was on the point of completing the contract which he had exchanged for the sale of his flat. He then received from the Abbey National a redemption statement for £73,546.03 which he disputed as being more than the Abbey National were entitled to require him to pay in redemption of his mortgage. He accepted that he was required of course to pay all further accruals of interest which had occurred since the date of the suspended possession order, taking into account such further accruals and such sums as he may have paid in the meantime. What he disputed however was that the Abbey National were entitled to charge to his debit further sums by way of product-related charges, that being the biggest single item of some £3,600, and further legal costs and fees such as a handling fee and so forth, which had not been part of their claim in their possession action and for which they had not asked and had not been granted judgment at the time of the judgment sum given as part of the possession order.
5. He sought to raise this dispute in the County Court initially on 19 October 2000 before deputy district judge Ostroff, who apparently, as far as I can see from the transcript, misunderstood the point on that occasion. He seems to have thought that Mr Bartholomew was simply objecting to payment of additional interest which had accrued since the date of the possession order. That was not the case. Albeit at this hearing in the absence of the Abbey National I am of course unaware of what might be said on behalf of the Abbey National, it seems to me a shame that the judge's error was not pointed out to him by Abbey National's counsel who was present at that the application before the deputy district judge.
6. At any rate, Mr Bartholomew obtained permission to appeal from that rejection, and approximately a month later on 29 November 2000 he appeared again in the Ilford County Court before His Honour Judge Platt. On that occasion the learned judge certainly did understand the argument that Mr Bartholomew was raising, and pointed out that as the total amount involved on the redemption was more than £30,000 he lacked jurisdiction to deal with it. He therefore advised Mr Bartholomew to pay the money demanded by the Abbey National under reserves and commence a redemption action in the Chancery Division of the High Court.
7. Subject to my own researches and without assistance of counsel. It seems to me that the learned judge was probably right in what he said about his lack of jurisdiction as things then stood (see section 23(c) of the County Court Act 1984 as amended). Nevertheless, it similarly appears to me, as things stand, that if both parties, Mr Bartholomew and the Abbey National, had agreed to give the county court jurisdiction, then the jurisdiction would have been established: see section 24(1) and 24(2)(g) of the same Act. Therefore, particularly as the Abbey National were again represented on that occasion, the matter could with goodwill have been sorted out to enable the dispute to be resolved. It might have been hoped that some prompt hearing of the dispute could have been arranged in the county court. At any rate the suggestion of such agreement did not come from the court on that occasion, and there was no indication from Abbey National's counsel that any such agreement might be forthcoming and the opportunity seems to have been lost.
8. I have been informed by Mr Bartholomew this morning that some month or so after that hearing his purchaser gave up waiting for completion, and he lost his contract, as it happens just about the time, he says, that in a letter of 31 January 2001 the Abbey National wrote to him to express its willingness to waive the largest single additional item of its redemption statement, the £3,600 connected with the product-related charge, provided that a new redemption figure of some £73,441.90 was paid. At any rate, the sale contract was lost.
9. Mr Bartholomew appeals to this Court for permission to appeal. As presently advised, I do not see that the judge was wrong to decline jurisdiction, but I am concerned that this dispute which is not about a large sum of money, although of course no doubt it is a very significant sum of money for Mr Bartholomew, should be resolved in the most efficient manner possible. Mr Bartholomew has not backed down and the matter needs to be litigated, if it cannot be resolved by agreement.
10. In the circumstances what I propose to do is as follows: I will adjourn this application to permit the parties to consider together, in the light of this judgment, how they best wish to proceed for the resolution of the existing dispute. Mr Bartholomew tells me that he has put his flat back on the market and has a current offer available to him. He wishes therefore to resolve the dispute as to the correct redemption allowance as soon as possible. I do not see why it should not be possible to resolve this dispute with the agreement of the parties as to extending the county court's jurisdiction in the Ilford County Court. The matter is closely connected with the possession order and the judgment sum comprised in it. One of Mr Bartholomew's submissions is that, not only is the Abbey National not entitled to add further charges to their judgment sum other than in respect of further accrued interest, but that by reason of his making, as he submits, a valid tender in the month of September 2000 to redeem his mortgage, all further costs or charges, including interest thereafter, cannot be charged to him.
11. In the circumstances, what I am minded to order is that execution of the warrant of possession issued in these proceedings in respect of the property, the First Floor Flat at 19 Adeliza Close, Barking, Essex, should be stayed for 28 days after I have initialed an approved draft of this judgment, to enable the parties to consider my judgment and the suggestion contained in it that they agree to resolve this dispute in the County Court. If such agreement cannot be reached, and it were to turn out in due course that Mr Bartholomew was unable to take this application for appeal any further and was required to commence a redemption action in the High Court against Abbey National, it may be that the Abbey National would be at risk as to costs in those proceedings. The fact is that although the total amount involved in the redemption subject to the dispute is somewhere in the region of £70,000-£80,000, the actual amount of the dispute between the parties, albeit it is growing, is only some small number of some thousands of pounds. Therefore the resolution of this dispute in the County Court would be a perfectly valid solution.
12. If no solution as to how this dispute should be litigated has been found within the further period of stay which I put upon the exercise of the warrant of possession, then the question of the effect of that stay will have to come back to whichever Court then is charged with the dispute. For present purposes I would simply say that this application for permission to appeal is adjourned generally with liberty to restore on notice to the respondent.
13. I hope that what I said will give an impetus towards some sensible arrangement for the resolution of this dispute, because I consider that the arguments which Mr Bartholemew seeks to raise are perfectly reasonable arguments, albeit I say nothing as to their ultimate results, and it seems to me that they need to be raised and resolved that he should not be at risk of losing his home in the meantime.
(Application adjourned generally with liberty to restore on notice to respondent)