England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ILFORD COUNTY COURT
(His Honour Judge Platt)

		Royal Courts of Justice Strand London WC2 Tuesday 26th March, 2002

1. LORD JUSTICE ALDOUS: By summons dated 15th October 1999 Abbey National Plc sought possession of the first-floor flat at 19 Adeliza Close, Barking, Essex IG11 8BQ, and a money judgment from Mr Bartholomew. Their claim was based upon a failure by Mr Bartholomew to make payments due under a mortgage dated 15th April 1998.
2. It was alleged that the amount loaned was just over £61,000 and that to pay off the mortgage just over £65,000 was needed. It was also alleged that letters requiring payment of the outstanding arrears had not been complied with, and Mr Bartholomew was not in a position to pay off the sums due.
3. The possession summons came before District Judge Rose sitting at the Ilford County Court. He gave judgment for just over £66,000 and ordered possession of the property on 11th January 2000. He suspended the order for possession so long as Mr Bartholomew paid to the Abbey National the arrears due under the mortgage, which were just over £4,700 at the time, by payments to be made at a rate of £50 per month, the first payment to be made on or before 25th January 2000. Such payments of £50 a month were to be made in addition to the regular mortgage payments that fell due from time to time. The order was not to be enforced so long as the possession order remained suspended.
4. It would seem that Mr Bartholomew was not able to keep up the payments with the result that the matter returned to come before District Judge Rose on 4th April 2000. At that hearing the judge suspended the warrant for possession on the basis that the current monthly instalments were paid and in addition Mr Bartholomew had to pay £75 per month to pay off the arrears, with the first payment being made on or before 4th May 2000. It is to be noted that the monthly instalments to pay off the arrears had risen from £50 per month to £75 per month, which had to be paid in addition to the regular monthly payments under the contract of mortgage. There was liberty to the Abbey National to restore the application after six months.
5. On the application of Mr Bartholomew the matter came back before the Ilford County Court on 8th September. It was then heard by District Judge Thomas who adjourned the application to 19th October 2000. At that hearing on 19th October District Judge Ostroff considered an application by Mr Bartholomew for a further suspension of the warrant of possession. The basis was that Mr Bartholomew said that the redemption figures were wrong and he had within his grasp the ability to sell his flat which would pay off all the arrears. He told the judge that he had already signed the contract to sell the property and the delay was not his fault. He accepted he owed the money, according to the judgment, and he was going to pay it in due time.
6. The District Judge said this:

"I understand contracts have now been exchanged and the only question is whether this matter proceeds to completion or not. Mr Bartholomew complains about the redemption figures and the fact that these seem to be different to what was originally claimed, but as I understand the position the arrears do change from time to time and they have been built up over a period of time and clearly what was the arrears figure in December is now a different arrears figure as at today's date. The arrears, I am told, are £7,252.95. Those are considerable arrears. I have taken into account the previous applications to suspend and the fact that it is within the Defendant's grasp to proceed to completion and he does not appear to have done so. I have reached the decision, exercising my discretion, to dismiss the application."

7. Mr Bartholomew asked for permission to appeal and that was given, and the warrant was suspended so long as the appeal was issued and served within 14 days.
8. The appeal came before His Honour Judge Platt on 12th December 2000. He dismissed the appeal and added the costs to the security. It seemed that the county court judge dismissed the appeal on the basis that he had no jurisdiction to consider it. Against that decision Mr Bartholomew sought permission to appeal to this court. His application came before Rix LJ on 6th April 2001. At that hearing he argued that the amounts stated in the redemption charges were incorrect and that the matter should be concluded by a sale of the property by him at a price which would redeem all the payments due.
9. Rix LJ was concerned that the dispute between the parties was not about a large sum of money, although it was significant to Mr Bartholomew, and he thought that it could be resolved in an efficient manner without further litigation. He said this:

"10. ... 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 initialled 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 an agreement cannot be reached, and if 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.

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."

10. Unfortunately the hope expressed by Rix LJ has not been achieved. No agreement has been reached between Mr Bartholomew and the Abbey National and therefore Mr Bartholomew restored his application to this court which is an application for permission to appeal. In a letter to the court he pointed out that the Abbey National had rejected an offer made by him on 21st December 2001 and, as he said, they had kept changing and increasing substantial amounts of costs, legal fees and administration fees that had been added to the charge. He said that he had a new contract for sale of the property and that completion could take place very shortly. In those circumstances, he seeks to be granted permission to appeal.
11. Mr Bartholomew appeared before me today. He still challenges the redemption figures put forward by the Abbey National. He produced to me an agreement for sale to a Mr Kazif of 119 Oaklands Road, London W7 2DT, of the property. It is not dated nor is it signed by the purchaser. It appears that this property has been the subject of a number of offers according to Mr Bartholomew, but no sale has been completed.
12. In my view the sale of the flat has nothing to do with the redemption charges. Providing he sells the property at the highest price, then he can satisfy the redemption charges properly made out of the proceeds if there is sufficient equity in the property.
13. There appears to be no dispute that Mr Bartholomew was and remains in default and in those circumstances the Abbey National had a right to possession, subject to the discretionary powers given to the court by section 36 of the Administration of Justice 1970. That section gives to the court the power to suspend or postpone possession for such period or periods as the court thinks fit, if it appears to the court that in the event of its exercising that power the mortgagor is likely to be able within a reasonable period to pay any sums due under the mortgage or to remedy a default consisting of a breach of any obligation arising under or by virtue of the mortgage.
14. The District Judges, on two occasions, made orders which suspended the order for possession to which the Abbey National were entitled, subject to the powers under section 36, on condition that monthly instalments and further sums be made to pay off the arrears. It is clear from the documents that those monthly payments were not made and in those circumstances the suspension of the warrant lapsed. Further, the question as to whether to suspend further the order for possession was uniquely one within the discretion of the District Judges. It has not been demonstrated before me that any of the judges exercised their discretion upon wrong principles or upon a misunderstanding of the facts. There was no basis upon which the County Court judge could have interfered with the discretion that had been exercised by the District Judge and therefore no basis for this court to interfere.
15. These proceedings were started as long ago as 1998. The lapse of time which has occurred support the conclusion that there was no ground upon which it could be concluded that Mr Bartholomew was likely to pay off the mortgage instalments and arrears that had arisen. In my view there is no chance of an appeal succeeding and I would therefore refuse permission. If Mr Bartholomew believes that the Abbey National accounts are wrong, then he has methods by which he can challenge them.
16. I refuse permission to appeal.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)