England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2 Tuesday, 24th April 2001

Tuesday, 24th April 2001

1. LORD JUSTICE KEENE: This is an application by a defendant for permission to appeal against a decision of His Honour Judge Krikler on 5th January 2001 at Willesden County Court. The judge in that decision dismissed the defendant's appeal from the dismissal of his application to set aside an order for possession and warrant for possession which had been made against the defendant. The defendant, Mr Noueiri, also applies for an extension of time within which to appeal and for a stay of execution of the warrant for possession.
2. The broad position is that the original claimant in this matter, Paragon Finance Limited, provided a loan of somewhere just over £90,600 to the defendant for the purchase of a leasehold property in London NW2. It was a 25-year loan at a variable rate of interest and secured by a charge over the property dated 6th April 1989. However, the defendant soon fell into arrears on his repayments. The arrears amounted to over £10,000 by January 1990. An order for possession was made on 23rd January 1990. By February 1992, the arrears seemed to have exceeded something like £20,000. Various orders and warrants for possession were made, but I take matters more shortly as I can do for present purposes.
3. On 24th November 2000, District Judge Dabezies refused to set aside certain possession orders and warrants of possession. He also ordered that any further application for suspension of execution of the order for possession required the permission of the Court unless the application was accompanied by a payment into Court of £30,000.
4. There was then the appeal to His Honour Judge Krikler. That judge identified certain procedural deficiencies in the appeal, but he dealt with the case principally on its merits. Judge Krikler noted that the defendant had been arguing for many years that he had a property in Beirut which he might or might not be able to sell, but the judge said that there was no evidence to show that there was any interest in the property by any prospective purchaser. It was in the judge's words "all pie in the sky."
5. The county court judge also agreed with the district judge's conclusions on various legal points which had been raised, including whether the mortgage was an extortionate credit bargain. The district judge had noted that there was only a limited difference in percentage terms between the interest rate applied by the claimant company and the rate applied by one of the major building societies.
6. The appellant's notice contends that the order below was inequitable, wrong in law and practice and unjust. What is said today by, or on behalf of Mr Noueiri, is that it was inequitable for Mr Noueiri to have to pay such a rate of interest and, in particular, to find himself paying interest on the accumulated sum which itself included interest. That was a point made by Mr Alexander, who I have allowed to speak notionally as a Mackenzie Friend on behalf of Mr Noueiri. It is said on behalf of Mr Noueiri that he has throat cancer, his property in Lebanon has suffered damage as a result of the conflict there, and a stay of execution is sought so that Mr Noueiri can subpoena the directors of the organisation, which is now Paragon Finance Plc, to seek to discover why they acted as they did. Mr Noueiri himself has told me that the property in Lebanon is very difficult to sell for reasons which I have no doubt are obvious.
7. I have to bear in mind that this is a second appeal because the judgment from which it is sought to appeal was itself a judgment given on appeal by the county court judge from the district judge. Accordingly, permission to appeal is only to be granted if the case raises an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it – see part 52.13 of the Civil Procedure Rules.
8. So far as the personal matters which are raised on behalf of Mr Noueiri are concerned, such as his physical condition and the damage which he has experienced in Lebanon, while one needs to take those into account one also needs to bear in mind as the county court judge plainly did that this is a case which has been going on for many, many years. It was as long ago as 7th May 1992 that an order for possession was first made in respect of this property. Despite that, there are various warrants and orders for possession which have been made over the intervening years.
9. Looking at that aspect of the matter, I cannot see that the county court judge was wrong in the decision that he arrived at, and certainly I cannot see that this raises any important point of principle or practice or creates any other compelling reason why the Court of Appeal should hear this particular appeal.
10. As for it being inequitable for Mr Noueiri to have to pay interest on interest, the fact is that interest if unpaid will accumulate and form part of the sum which is owing, and it may well be that in certain circumstances interest will become payable on that. The broad position really has been confirmed by Mr Noueiri himself, namely that the property in Lebanon is extremely difficult to sell. That was the matter which particularly affected the mind of the learned county court judge in dealing with this matter. He could see little prospect of Mr Noueiri actually managing to pay off the substantial sum of arrears which is currently owing on this property. That is a conclusion which I can see no basis for interfering with.
11. So far as a stay of execution is concerned, the purported object of that is so that the defendant can seek to subpoena the directors of the claimant company. Apart from the fact that I am not persuaded that there is any good reason why he should be allowed to do that, I have to bear in mind that this matter were it to be dealt with at all should have been dealt with at first instance and not on appeal and certainly not on the second appeal. In the circumstances of this particular case I can see no basis for such a stay of execution.
12. Putting all these matters together and bearing in mind the points of law which were raised originally before the district judge and rejected by him and rejected again by the county court judge, there seems to me to be no important point of principle or practice which is raised in this appeal or any other compelling reason for the Court of Appeal to hear it. I would go so far as to say that indeed I can see no realistic prospect of success for this appeal from the decision of His Honour Judge Krikler. In those circumstances this application for permission and the associated applications must be dismissed.
(Application for permission to appeal dismissed)