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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Mortgage Express v Pickup & Anor [2002] EWCA Civ 1876 (2 December 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1876.html
Cite as: [2002] EWCA Civ 1876
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IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND A STAY OF EXECUTION
Strand London, WC2 Monday, 2 December 2002 |
||
B e f o r e :
____________________
| MORTGAGE EXPRESS | Respondent | |
| -v- | ||
| PICKUP and Another | Applicants |
____________________
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
The Respondent was not represented and did not attend
____________________
Crown Copyright ©
- LORD JUSTICE LONGMORE: This is a renewed application for permission to appeal from the decision of His Honour Judge Maddocks, sitting in Liverpool County Court, dated 20 August 2002. I have already refused the application for permission to appeal on paper. That application also asked for a stay of execution for a warrant of possession that was due to take effect on 19 November. I gave my decision on paper on 15 November and assume therefore that the warrant was carried into effect. Today nobody has appeared. The appropriate course is therefore to dismiss the application, but I will give a short judgment indicating why it is proper to dismiss it.
- On 6 November 1990 Mortgage Express, the claimants in the action, granted a mortgage to Mr and Mrs Pickup in the sum of £180,000. It was an interest-only mortgage with the capital to be repaid at the end of the 15 year term from the proceeds of a pension policy. During the mid-1990s it became known that the M65 Blackburn Southern By-pass was to be built in close proximity to Mr and Mrs Pickup's property. Mr and Mrs Pickup were contacted by a surveyor who informed them that they might be entitled to compensation from the Highways Agency. On 7 July 1998 Mortgage Express began possession proceedings in respect of the mortgaged property alleging that the account had fallen into arrears. On 24 August 1998 a suspended possession order was made, suspended on the ground that Mr and Mrs Pickup had agreed to make an initial payment towards the arrears of £5,000 with monthly payments of £1,000 thereafter. That sum of £1,000 was later increased to a sum of £1,275. The defendants did not meet those payments and a warrant for possession was subsequently issued, but it was suspended.
- Meanwhile a claim for compensation had been submitted to the Highways Agency but on 26 August 1999 bankruptcy orders were made against both Mr and Mrs Pickup. Mrs Hickson was appointed as trustee in bankruptcy; all rights in outstanding actions vested in her including any sum to be derived from the negotiations in relation to the Highways Agency Commission. It appears that Mr and Mrs Pickup were permitted to negotiate on behalf of the trustee in bankruptcy in relation to that compensation.
- On 3 October 2000 the Highways Agency confirmed that it was prepared to offer Mr and Mrs Pickup the sum of £45,000 in compensation plus interest. That sum would be payable in the first instance to any mortgagee over the property, and it would only be if the mortgagee agreed to waive its rights that compensation could be paid direct to a home owner. That is provided for by Section 10 of the Land Compensation Act 1973.
- On 22 August 2001 District Judge Ashton ordered that the possession warrant be enforced. Mr and Mrs Pickup appealed against that decision. Their appeal was dismissed by His Honour Judge Appleton on 18 December 2001 and an eviction date was set for 13 March 2002. On 12 March 2002 Mr and Mrs Pickup again applied for an order suspending the execution of the warrant. This resulted in the loss of the eviction date so that they remained at the property. The application was dismissed by District Judge Ashton on 14 April 2002 and a new date was set for eviction of 11 June 2002. Mr and Mrs Pickup then applied for a stay of the possession warrant, again causing the eviction date to be lost. That application was dismissed by District Judge Ashton on 11 June 2002 on the basis that compensation from the Highways Agency did not provide sufficient justification for avoiding the eviction. Mr and Mrs Pickup were obliged to comply with the terms of the mortgage contract. The judge was also concerned about Mr and Mrs Pickup's ability to maintain the interest payments after compensation had been received. He did grant permission to appeal on the basis that he thought it was appropriate that a Chancery judge with specialist knowledge should review the issues. He also ordered that if a notice of appeal was filed and served the warrant could be suspended pending the outcome of that appeal application.
- Mr and Mrs Pickup duly did issue an appellant's notice. Their ground of appeal was that District Judge Ashton should have had more regard to the compensation being claimed from the Highways Agency and if Mortgage Express had claimed that compensation the alleged arrears would have been greatly reduced. In the intervening period the Highways Agency had requested the consent of the trustee in bankruptcy to make the compensation payment. The trustee's solicitor gave that consent on 28 June and the Highways Agency then tendered the money to Mortgage Express. The total sum by that stage together with interest was £52,114.19.
- Mr and Mrs Pickup's appeal was heard by His Honour Judge Maddocks, sitting at Liverpool County Court. They submitted that they were at that time in a position to clear the arrears as a result of the compensation payment. They also argued that their ability to meet future interest payments should not be taken into account by the court although they were in a position to pay such payments. They also argued that Mortgage Express was not entitled to appropriate the compensation money towards repayment of the capital sum, as they purported to do, and that it was not entitled to add interest to the arrears because it had failed to take reasonable steps to claim compensation.
- His Honour Judge Maddocks dismissed the appeal and refused permission to appeal. He rejected the argument that Mortgage Express was at fault in failing to take reasonable steps to obtain the compensation money when it was informed in October 2000 that such compensation might be forthcoming, since the claim was that of the Pickups and it was for them to procure the moneys. He then addressed the issue of the payment of compensation moneys. Although the payment had not been made at the time of hearing before District Judge Ashton, it was clear that the money would be available within a short space of time thereafter. He considered that as the amount of compensation exceeded the arrears, it was open to Mrs and Mrs Pickup to argue that the necessary conditions were fulfilled to allow the court to set aside the possession order under Section 36 of the Administration of Justice Act 1970. He concluded that in the circumstances there were ample grounds on which District Judge Ashton was entitled to refuse further suspension. He drew attention to five issues that were before District Judge Ashton, including the fact that the figure for the average payment made over the last 16 months of seven hundred pounds fell short of the estimated future monthly instalments of £1,275. An eviction date was set for 19 November.
- On this renewed application to appeal it is, of course, for Mr and Mrs Pickup to show that the appeal would raise an important point of principle or practice or that there is some other compelling reason for the Court of Appeal to hear it. Having recited the facts and the contents of the judgment below, it is apparent to me that there is no important point of principle or practice involved and nor is there any compelling reason for an appeal to be heard. If, as I assume the position is, the eviction did take place on or about 19 November it would, in any event, be entirely pointless to give leave to appeal in this case and it must be refused.
- Permission in this case is refused.