England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2 Thursday, 11th July 2002

1. LORD JUSTICE KENNEDY: This is an application for permission to appeal brought by Mr Rogers on behalf of Mrs Holdgate, the defendant in an action brought against her by Lloyds TSB in relation to a property known as Rosemead, 5 King George Road, Brentwood.
2. On 7th November 1997 that property was owned by Mr and Mrs Holdgate and was charged to Lloyds TSB Bank Plc. The charge was executed by Mr and Mrs Holdgate and witnessed by Mr Keith Simpson, a solicitor acting at that time and previously on behalf of the husband and wife. The scenario is a relatively familiar one. Mr Holdgate mortgaged his home, with his wife's agreement, in order to secure the liabilities of himself and his business partner Mr Nicholson. Mrs Holdgate undoubtedly signed the legal charge. When the bank sought to enforce it the issue was raised as to whether when she signed she had had appropriate advice. In the defence which was served on her behalf there appears this paragraph:

"The defendant's signatures on the mortgage are witnessed by a Mr Simpson, who was a solicitor who had acted for them when they purchased their home some years previously. If, which she does not admit, Mrs Holdgate or the first defendant signed the mortgage in the presence of Mr Simpson she avers that Mr Simpson (1) did not speak to her in the absence of the first defendant, (2) made no inquiry of her with a view to ascertaining that she was entering into the transaction of her own free will, (3) did not inform her of the true extent and the liability she would be undertaking and specifically that the extent of the first defendant's indebtedness for which the mortgage was security was unlimited in amount."

3. The matter came before Judge Yelton in Southend County Court on 21st September 2000. At that stage, and in the then state of the law, Judge Yelton took the view that the conceded presence of the solicitor at the time when the charge was signed really put Mrs Holdgate in a position where she was without an effective defence.
4. Accordingly, without it seems any oral evidence being heard he made an order for possession but ordered that that order be stayed for a period of six months or until 28 days after the House of Lords delivered judgment in Royal Bank of Scotland v Etridge which it was known raised this issue and was at that time about to be heard before their Lordships' House. The House of Lords gave judgment on 11th October 2001. Consequently, the stay which had been granted by Judge Yelton expired on 9th November 2001.
5. At some stage the bank obtained a warrant for possession and then sought to execute it. If and insofar as Mrs Holdgate did not act within the time allowed by Judge Yelton, there would seem to be at this stage no reason why she should not have that time extended because what is important is that this issue should be properly and justly resolved. Mrs Holdgate applied on 27th February 2002 for suspension of the warrant which had at that time been issued and for permission to appeal against Judge Yelton's order of 21st September 2000. The matter came first before District Judge Gypps who granted the stay which she sought, pending any appeal. The matter was brought back before Judge Yelton on 27th March 2002 when Judge Yelton had prepared and delivered a written judgment which is before me. The relevant part of that judgment reads as follows:

"Counsel is appearing before me today on a pro bono basis on behalf of Mrs Holdgate. He submitted that the judgment of the House of Lords gave her a defence to the claim which should be tried. I do not agree with that assertion. It is clear from the decision in Etridge that where a wife has seen a solicitor, even a solicitor also acting for her husband, the bank is entitled to rely on that as demonstrating that she has had brought home to her the implications of the transaction. Mrs Holdgate accepts that she saw Mr Simpson but cannot recall what he said. He cannot remember it at all, not surprisingly, and the file has been destroyed."

6. As to what Mrs Holdgate accepted and what Mr Simpson could recall, the judge was relying on what appears in their respective statements both of which had been exchanged. Mrs Holdgate stated this:

"I note the legal charge was witnessed by Mr Simpson. I believe he was the solicitor who acted for us in the purchase of our house and I think we probably went to Mr Simpson's offices in Rayleigh. As I have already indicated, I rather blotted it all out because I was not happy about what I was doing. Certainly I do not remember the solicitor saying anything about risks involved and it was all over very quickly."

7. Mr Simpson, for his part, said in his statement:

"Although the mortgage appears to be partly completed in my own handwriting and Mr and Mrs Holdgate's signatures are witnessed by me, I cannot recall after this period of time the precise circumstances of the meeting when the document was executed."

8. The substantive point taken by Mr Rogers is that the judge's interpretation of what was decided by their Lordships' House in Royal Bank of Scotland v Etridge [2001] 3 WLR 1021 may have been mistaken. Suffice it for present purposes to say that if one looks at the speech of Lord Nicholls (page 1045 paragraphs 79 to 80) and the speech of Lord Scott (page 1078 paragraphs 167, 168 and 171) it is apparent, in my judgment, that there is force in the submission made by Mr Rogers on behalf of this applicant.
9. Accordingly, I grant permission to appeal in relation to the first three grounds of appeal set out in the appellant's notice. I do not grant permission in relation to ground 4 which, as Mr Rogers frankly conceded, is not a matter of any substance anyway.
Order: Application allowed