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 CHANCERY DIVISION
(Mr Richard Field QC: sitting as a Deputy High Court Judge)

		Royal Courts of Justice Strand London WC2 Thursday, 25th April 2002

Thursday, 25th April 2002

1. LORD JUSTICE PETER GIBSON: The claimant, Kevin Wilson, seeks permission to appeal from the order made on 20th December 2001 by Mr Richard Field QC, sitting as a Deputy High Court Judge in the Chancery Division. By his order the judge dismissed with costs Mr Wilson's claim. He refused permission to appeal on the basis that all but one of the points on which Mr Wilson sought permission to appeal were questions of fact on which he had no reasonable prospect of success. As for the point of law, the judge thought that the appeal on that was hopeless.
2. On 4th December 1980 Mr Wilson purchased a cottage which had a stable block and a large garden. This was in Horley, Surrey. He borrowed £20,000 for that purchase from the Halifax Building Society ("the Halifax"), which is the predecessor of the defendant, Halifax Plc. The loan was secured by a first legal charge on the property. In March 1983 a further loan of £9,390 was made to Mr Wilson on the same security. Unhappily Mr Wilson fell into arrears. In August 1992 possession proceedings were commenced against him. On 20th April 1993 he was ordered to give up possession, and eviction followed on 27th October of that year.
3. As mortgagee in possession, the Halifax had a right of sale. It set about selling the property through the estate agency arm of the Halifax Group, Halifax Property Services ("HPS"). Mr Wilson suggested that only the cottage should be sold. HPS rejected that on the ground that that would reduce the saleability of the property. HPS advertised the property, inviting offers in excess of £80,000. That figure was based on a valuation by three advisers. One was Christopher Whitehead. He is employed by Colleys, the valuation division of Halifax Estate Agencies Ltd. He is an experienced chartered surveyor who had been providing valuations on properties in the Horley area for the previous six years. He carried out a valuation on 3rd December 1993 and gave as the value of the property £75,000, and after essential repairs £95,000. He advised that there should be an asking price of £84,950. A second adviser was Michael Wetherill. He was the manager of the Horley office of HBS. He is an experienced estate agent but is not a qualified valuer. He valued the property on 3rd December 1993 at £78,000. He suggested an asking price of £85,0000. The third was Michael Barry, a chartered surveyor who worked for the Halifax's South London Property Unit ("the SLPU"). The repossession and sale were the responsibility of the SLPU. He valued the property on 9th December 1993 at £82,000, and suggested that as the asking price. On 20th January 1994 Mr Barry and Mr Wetherill visited the property to assess Mr Wilson's proposal for splitting the property to be sold. Mr Wetherill and Mr Barry revised their valuations downwards by a few thousand pounds.
4. On 3rd February 1994 the marketing of the property began. An offer was received for £65,000; another offer from a Mr and Mrs Sherwin was for £60,000, which was later increased to £75,000 and on 5th March 1994 to £80,000. The Sherwins' £80,000 offer was accepted in March 1994, but in early April the Sherwins withdrew that offer and made instead a reduced offer of £60,000. That was rejected. The property was put back on the market. On 29th April 1994 the Sherwins reinstated their £80,000 offer, and that was accepted. Completion of the sale took place on 12th May 1994. The proceeds paid off what Mr Wilson owed the Halifax and a second mortgagee, but there was nothing left for Mr Wilson.
5. Mr Wilson firmly believed, and still believes, that the sale significantly undervalued the property. His belief was based on a number of informal valuations which he had obtained. One was from Geoffrey Cook, the manager of the Crawley branch of HPS, who had visited the property in mid 1993. Mr Cook told Mr Wilson that he could get about £133,000 for the property, but he valued the property in ignorance of the repossession order and the threat of eviction. The second valuer was Richard Messenger of Horley Estate Agents, Cubitt & West. In October 1993 Mr Messenger visited the property. He told Mr Wilson that the property would fetch about £145,000, but when asked in January 1994 to put it in writing, Mr Messenger declined to confirm that valuation. A third was Nick Bevan, the assistant manager of Horley Estate Agents, Gascoigne Pees. He valued the property at between £110,000 and £115,000.
6. Mr Wilson made a formal complaint in February 1994 to the Building Society Ombudsman alleging collusion in the fraudulent undervaluing of the property. He accused the SLPU of a spiteful and fraudulent conspiracy to downgrade and to deter interest in the property intentionally. The Ombudsman rejected Mr Wilson's complaint on 12th July 1996. Mr Wilson told the Ombudsman that he would be issuing a writ against the Ombudsman's Office, but that seems not to have happened.
7. Mr Wilson obtained legal aid, and on 20th August 1997 solicitors wrote a letter before action to the Halifax. They contended that the property should have been split or, alternatively, that it had been sold at a substantial undervalue. No allegation of fraud or dishonest collusion was made by the solicitors. Mr Wilson's legal aid was subsequently withdrawn. On 2nd May 2000, acting in person, he commenced proceeding the Chancery Division, claiming damages for breach of duty by the Halifax as mortgagee in failing to obtain the market value or the best price reasonably obtainable for the property at the time of sale. It would appear that he put a value of £135,000 on the property at the time of sale.
8. Mr Wilson in his particulars of claim made a large number of allegations. They were listed by the judge as 19. The most important of them seem to me to be these:

(a) The Halifax frustrated resolution of the dispute by, amongst other things, providing the Ombudsman with redacted documents and misrepresenting to the Ombudsman that Colleys were independent valuers.

(b) The Halifax's employees colluded in a scheme to sell the property to a connected party at an undervalue.

(c) The Halifax was in breach of a duty to obtain the best price reasonably obtainable.

(d) The Halifax's conduct of the sale was defective in that it did not engage an independent valuer. It prematurely withdrew the property from the market. It delayed marketing. It failed to market at the open market value and then reduced the price.

(e) The Halifax contravened estate agency and other legislation by failing to annotate offer forms and misdescribed the stable block in sale particulars.

9. The judge went through the allegations, but he rejected all of them. On (a) the judge pointed out that he was not dealing with an appeal from, or judicial review of, the Ombudsman's inquiry. He said that the overall tenor of Mr Wilson's claims amounted to an allegation of fraud which, if it could be established, would provide him with a cause of action. But he said that there was no evidence which began to support a finding of fraud. On (b) the judge, having heard the evidence of all those accused of collusion, accepted their denials as truthful. On (c) the judge, having considered the authorities, found that the housing market in the Horley area at the relevant time was deeply depressed, that the three valuers on whom the Halifax relied in their reports followed the correct approach and that their conclusion was supported by the Halifax's expert witness, Mr Desbrulais, though the judge added that he would have been of the same opinion that £80,000 was the open market value of the property from December 1993 to May 1994 even if Mr Desbrulais had not given evidence. In contrast, none of those who gave Mr Wilson informal valuations was called as a witness, and so the basis on which they had expressed their views on value could not be examined. On (d) the judge said that the Halifax was not in breach of duty in not engaging an independent valuer, and that the Halifax acted entirely reasonably in what it did. On (e) the judge recorded Mr Wilson's allegation as being that by looking at the copies of notification of offer forms sent to him by the Ombudsman, it could be seen that some of the forms had been altered. After the end of the Ombudsman's inquiry, the judge said, all of the originals of the forms were produced in court and Mr Wetherill had told the judge that some of the forms had been copied but then used as if they were originals, with additions being added to the copy as the offers progressed. The judge accepted that evidence. On the basis of that evidence the judge expressed himself as entirely satisfied that there had been no retrospective alteration. The judge also found no mis-description of the stable block in the sale particulars issued by the Halifax. Nor was the marketing of the property adversely affected by the stable block's description. Accordingly Mr Wilson's claim failed.
10. Before me Mr Wilson appears in person. He has provided me with two witness statements and a skeleton argument which go over the factual ground covered by the judge, with frequent factual assertions adding to, correcting or explaining what the judge has said. He has, I fear, not understood the constraints on an intended appeal to this court. This court will not normally receive fresh evidence on appeal. The judge's findings of fact on the evidence put before him cannot be interfered with by this court unless it can be shown that the findings are not supported by any evidence. In most cases where such an appeal succeeds, it is normally done by producing transcripts, or notes of evidence, before the judge. Alternatively, it must be shown that the findings are not justified by the evidence. But the court always has to bear in mind that it has not had the advantage which the judge had of having seen, and heard, and observed the demeanour of, the witnesses.
11. Mr Wilson started his application with an application that the court should order transcripts of the cross-examination of Mr Desbrulais, and that there should be an adjournment pending the arrival of such transcripts. He had asked the Halifax's solicitors to agree that certain questions which he, Mr Wilson, had put to Mr Desbrulais in cross-examination had been answered in a particular way. The Halifax's solicitors replied, saying that they had reviewed their notes of evidence and discussed the matter with counsel and were only able to confirm under cross-examination that certain matters were put, but they were not able to confirm that the admissions which Mr Wilson claimed had been made were made. In relation to another point, the solicitors pointed out that the judge had adequately dealt with the point in his judgment. Mr Wilson put to me that this was a fundamental matter. He submitted that Mr Desbrulais' evidence was of great significance. But I have already noted what the judge has said, that his conclusion would have remained the same even if Mr Desbrulais had not given evidence. There is no reference whatever to this point in the grounds for appeal. In my judgment it is far too uncertain whether the admissions which Mr Wilson claims to have been made were in fact made in view of what the solicitors and counsel have said. It will be borne in mind that Mr Desbrulais was unable to take a note because he was doing the cross-examining. In any event, because it would not have made any difference to the judge's conclusion if Mr Desbrulais had not even given evidence, it seems to me this matter is far too peripheral to justify acceding to the request which Mr Wilson has made. Accordingly, I refuse his application.
12. Mr Wilson has taken a number of points, both in his grounds for appeal and when addressing me orally today. He has again said that it is quite wrong that the Halifax should have been able to succeed without, he says, a single independent valuer. In my judgment the judge was entirely right when he said that the mere fact that the valuers for the Halifax were employed by the Halifax does not mean that the Halifax is in breach of duty. The question is whether the valuers approached their task on a proper basis and had regard only to relevant matters; and he was satisfied that the three valuers relied on by the Halifax acted competently, properly and professionally. There is no authority whatever which requires, as a matter of law, that an independent valuer always be employed before a mortgagee in possession can sell at a price which the mortgagee believes to be reasonable.
13. Then Mr Wilson submits that certain documents were not genuine documents. He was referring thereby to the notifications of offer which he submits were tampered with by the Halifax. He says that that proves that the Halifax were using those documents improperly. I have already referred to what the judge said about this issue.
14. For my part, having looked at the documents in the bundle, I cannot see that there is any basis on which this court could conclude that the judge had reached a wrong decision in respect of the documents. In any event, again these documents are hardly central to the main issue in the case, that is to say whether the open market value at the relevant time was around £80,000. This point represents an attempt by Mr Wilson to argue that the Halifax's procedures were lax, as he puts it, and so their witnesses should not be believed. I do not accept that that can be shown on the material put before me.
15. Mr Wilson has produced some advertisements in newspapers. They shows that the Halifax has from time to time adopted the technique that once it has received an offer of a particular price, it advertises the price by a five-day notice. During the five days better offers might be received. It was, of course, open to the Halifax to do that, but it is not a requirement of the law that that practice should be adopted. Nor in fact, as the judge found, was it the invariable practice of the Halifax itself. Again, the crucial question is whether the judge was justified in finding the open market value to be £80,000. On the material before him he thought it was, and, for my part, I cannot see that realistically that can be shown to be erroneous.
16. Mr Wilson complains in his grounds for appeal that documents were not produced when he had asked for them to be produced. In particular he complains about a diary entry by Mr Cook; he, it will be recalled, was the Crawley manager, who had come up with the £135,000 valuation. Mr Wilson referred in his skeleton, as well as in the grounds of appeal, to a letter from the Halifax's solicitors of 15th February 2000. He says that that letter indicated that all the Halifax's documents were intact, whereas there was evidence at the trial that the diary had been shredded. In fact the letter of 15th February 2000 says that "all files are intact and will be retained". In context that must mean the files in the case relating to the sale of the property. The Crawley branch was not, of course, involved in the sale of the property, and there is no inconsistency such as that about which Mr Wilson seeks to complain.
17. Mr Wilson indicated in the grounds of appeal that a point of law with human rights issues would follow. I am not aware of any human rights issues being raised in the present case, and I cannot see what human rights issue could succeed.
18. A point of law was raised by Mr Wilson in one of his witness statements. This was said to be that a mortgagee in possession should advertise an accepted offer for 21 days prior to completion. That would be more onerous for the mortgagee than the five-day notice procedure. In my judgment there is no basis in law for there being such a requirement. Why should the mortgagee risk the sale going off in that period unless there is some change in the law prescribed by Parliament to require it? In my judgment, so long as the mortgagee obtains a proper price, he will not be in any breach of duty owed to the mortgagor.
19. Having considered the voluminous papers as carefully as I can, I am unable to discern any real prospect of an appeal succeeding on any of the points taken by Mr Wilson. No other compelling ground for allowing the appeal to go ahead has been put forward.
20. I would refuse this application.
Order: Application refused.