England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice
		11th March 2002

MR. JUSTICE HART: This is an appeal by the second defendant against a judgment of His Honour Judge O'Brien on the 19th September 2001, refusing to stay execution of a possession order on the property known as Northfields, Normands Way, Stansted, Essex, which was made on the 29th October 1999.

The action in which the matter arose was an action for possession by the claimant bank of that property against the first defendant, William Henry Alcorn, and the second defendant, his wife, Elizabeth Ann Alcorn. Mr. Alcorn is bankrupt, or was a bankrupt; I am told that he is now discharged from bankruptcy, but he has played no part in this appeal or in the application before His Honour Judge O'Brien, which resulted in the order appealed against.

The litigation between the bank and the defendants has been going on since 1995, and it is necessary to set out something of the procedural history of the matter, which I do largely by reference to the helpful summary which has been contained in the skeleton argument produced for the purposes of this appeal by Miss Gibaud, who has appeared on behalf of the bank.

The first defendant made a claim against the bank in an action in the Queen's Bench Division, brought in 1995, and on the 15th December 1995 Master Hodgson struck out the first defendant's statement of claim and the bank was granted permission to enter judgment on its counterclaim against the first defendant under a guarantee dated the 8th May 1991 for the liabilities of a company operated by the first defendant. Judgment was given for the bank in a sum of £90,174.79 on the 15th December 1995. The first defendant appealed against that, but his appeal was dismissed by Mr. Simon Goldblatt Q.C., sitting as a deputy judge of the Queen's Bench Division, on the 15th February 1996.

The first defendant brought further proceedings against the bank in 1996, but his statement of claim in those proceedings was struck out by Deputy Master Leslie on the 30th September 1996, and his appeal from that order was dismissed by Mr. Justice Holland on the 12th December 1996.

By a summons dated the 9th September 1996 in this action the bank claimed possession under the bank's legal charge, dated the 8th March 1997, of the property, Northfields. That action was defended by both defendants, but the first defendant was adjudged bankrupt on the 26th November 1998.

The matter came before His Honour Judge O'Brien in the Cambridge County Court for a two-day trial of the second defendant's defence alleging misrepresentation and undue influence. The first defendant gave evidence supporting the second defendant's allegations. The judge rejected each of the second defendant's allegations on the evidence, and granted a possession order in favour of the bank over the property on the 29th October 1999. It appears that the judge prevailed on the bank to agree to allow the defendants two months in which to market the property, and the order for possession therefore stipulated that the defendants were to give up possession on or before Thursday, 30th December 1999. I should add that it is clear from the remarks made by His Honour Judge O'Brien on that occasion in that context that he considered that he had sufficient personal knowledge of the speed at which it would be possible to market and sell a property of the nature of the property under consideration in that particular area of the country to make the judgment he did as to the relevant time period.

In November 1999 the second defendant wrote to the bank stating that the defendants were seeking permission to appeal the possession order of the 29th October 1999. An indication was also given that the property had been put on the market for sale. There was in fact no appeal from the possession order of the 29th October 1999, and by the beginning of 2000 it appeared that the defendants were embarked on the process of marketing and sale of the property, using a Mr. Mullocks of Mullocks Wells & Co. for that purpose. Mr. Mullocks' advice appears to have been that the property should be marketed at a sale price of £320,000, lower than an initial indication given of £345,000. The bank indicated that unless there was progress by the end of March 2000 then they would proceed to issue a warrant for possession. An offer for the property of £305,000 was obtained at the end of March 2000, and at that time, as it appeared to the bank, a sale might proceed at that price.

However, that was the beginning of a dispute, which subsequently came before His Honour Judge O'Brien in the following year, arising from an assertion by the defendants that the charge did not cover the whole of the property described as Northfields. The dwellinghouse at the property had been added to in I think about 1986, with the benefit of finance advanced by the bank at that time, by the addition of an annexe to it of the property which has become known as "The Cottage", a modest one-storey building containing essential living quarters, and a garage, and which enjoys an access to the outside world separate to that of the main dwellinghouse, although it shares, apparently, some services, at least the water supply.

The property had also had the benefit of planning permission being granted for a building over parts of the garden of the property - it may not be the garden but, at any rate, within the apparent curtilage of the property - and the dispute was as to whether the charge covered The Cottage and the building plots in respect of which planning permission had been granted.

The upshot of the dispute was that in August 2000 the bank issued a warrant of possession and the defendants issued applications dated the 6th September 2000 and the 15th September 2000 for suspension of the execution. On the 18th September 2000 Deputy District Judge Frankish ordered that the possession should proceed on the 23rd October 2000, and on the 29th September 2000 the bank reissued a warrant of possession.

On or about the 23rd October 2000 the defendants sent the bank the keys to the main house and, as a result, the bank was able to take possession of the main house without having to execute the warrant through the services of bailiffs, but the defendants refused to give up possession of The Cottage or the building plots, and they moved their furniture and possessions from the main house into The Cottage and thereupon commenced to live in The Cottage.

The warrant for possession was reissued by the court on the 22nd November 2000, apparently without the bank having asked the court to do so, and on the 8th January 2001 the second defendant issued an application notice seeking an order that there be a stay of execution of the possession order and directions for the determination of the issue as to the extent of the bank's security.

District Judge Shanks, on the 9th January 2001, and His Honour Judge O'Brien at a case management conference on the 19th February 2001, gave directions for the determination of the dispute as to whether or not the bank's charge extended to The Cottage and the building plots. The issues so defined were issues (1) as to the extent of the property included in the bank's security, (2) the extent of the property included in the possession order, and (3) whether there was any overriding interest on which the second defendant could rely against the bank, and a two-day trial was ordered to determine these three issues, and evidence was prepared on that basis.

Shortly before the hearing was due to begin on Monday, the 18th June, the second defendant, by an amended application notice dated the 15th June, sought to raise additional issues for determination, including the question of the application of Article 8 of the European Convention on Human Rights. On the first morning of the trial permission was given to amend, and, as a result of that permission having been given to amend, it subsequently became clear that valuation evidence was going to be important for determination of the Human Rights Act point. What the judge did in that respect was to make an order for the appointment of a joint expert to advise the court on the various issues of valuation which were involved. The hearing was then stood over until the 21st September 2001. The judge found that the charge did extend to the whole of the parcel of land at Northfields, including The Cottage and the building plots, and, having taken into account the valuation evidence, he refused to order any stay of execution under s.36 of the Administration of Justice Act 1970.

It appears that the relevance of s.36 was not appreciated by the judge, and possibly also not by the second defendant's counsel, until a very late stage in the argument. A point apparently being taken by Miss Gibaud, on behalf of the bank, in the course of her final submissions, was that the Human Rights Act application was not framed as an application for a stay under s.36. The second defendant's counsel in his final speech addressed the court on the basis that the powers conferred by s.36 should be invoked and employed by the court in order to vindicate the second defendant's rights under the Convention.

The essential basis upon which His Honour Judge O'Brien refused to order a stay of execution was that, as he interpreted the evidence before him, there was no planning permission for The Cottage to be treated as a separate dwelling, and therefore it would not be possible as a matter of planning law for the main house to be sold separately from The Cottage and, on that basis, he declined to exercise his discretion in favour of the defendants. The position so far as that is concerned has changed since the date of the judgment because the second defendant has procured the issue by the local authority of a certificate of lawful use so that that element in the judge's decision-making process has been removed.

The evidence of value which was before His Honour Judge O'Brien as a result of the direction for a joint expert was evidence of a Mr. Tucker of Tucker & Co., estate agents of High Street, Bishops Stortford, given pursuant to instructions contained in a letter from Freemans, the second defendant's solicitors, dated the 6th July 2001, a letter which, as

I understand it, was written in terms which had been agreed with the bank. The essential instructions were as follows:

"We would wish you to visit the property and, after appropriate inspection, report on the value of each of the following parcels:

1. The whole of Northfields;

2. The building plot;.

3. The Cottage;

4. The main house and garden on their own, on the assumption that the Cottage will be separately owned and occupied;

5. The main house and garden and building plot, i.e. the whole of Northfields excluding the Cottage, on the assumption that the Cottage will be separately owned/and occupied;

6. The main house and garden and the Cottage.

"In the event that the planning permission for the

building plot is no longer extant, please could you produce separate valuations on the footing (a) that there is no such planning permission, and (b) that any hope value which there may be in relation to the building plot is included.

"We would like you to provide valuations of the above

parcels on the basis of a) what could be reasonably expected to be obtained for them on an open market sale between a willing vendor and willing buyers, and b) alternatively on a forced sale basis.

"In providing your valuations we would ask you specifically to address and set out:

(i) the impact on the saleability of the main house

and garden if the Cottage is separately inhabited; and

(ii) the practical implications for the sale of the Cottage on its own, e.g. whether any of the garden would have to be included for access/saleability etc. and if so, how much garden etc.

"Please note that various repair works are now

necessary to the interior of Northfields following flooding earlier in the year after the Bank took possession of the property. The property is insured in respect of these works. Your valuation should therefore be on the basis that these remedial works have been carried out to the interior of Northfields and that it is in a reasonable state of repair."

In response to those instructions, Mr. Tucker, by a letter dated the 13th July, wrote as follows:

"Further to your recent instructions, I am writing to give you my thoughts on current open market values of Northfields, Normands Way, Stansted and its associated building plots and cottage. These have been produced on the basis of an inspection on the 10th July 2001.

"As you are, doubtless, aware the main property has

undergone fairly extensive water damage and requires an overhaul to rectify this. For the purposes of this letter I will insert two values for the main property, one relating to current condition and the additional figure assuming that the restoration work required has been undertaken shown in brackets."

And then going to the individual questions asked:

"1. The whole of Northfields.

This I take to mean the main house, plus building plots, plus the cottage, £455,000 (£500,000).

2. The building plot - £110,000. This equates to 2 dwellings of approximately 858 sq.ft. and 610 sq.ft. Which, if built, would have a resale value of approximately £200 per sq.ft. i.e. £293,600 and plot values ought to be in the region of 38% of this figure.

3. The Cottage has a value in the region of £95,000, possibly a little more, dependent on the size of plot that it retains.

4. The main house and garden on their own, on the assumption that the cottage will be separately owned/and occupied. I consider this to have a value in the region of £250,000 (£295,000).

5. The main house and garden and building plot, i.e. the whole of Northfields excluding the Cottage, on the assumption that the cottage will be separately owned and occupied. I consider this parcel to have a value in the region of £360,000 (£405,000).

6. The main house and garden and the cottage.

I consider this parcel to have a value in the region of £345,000 (£390,000)."

Then I can go later in his letter:

"In reference to the next paragraph, I do not consider that it would be necessary to reduce any of the previous figures to any substantial degree on a forced sale basis, i.e. the current situation of supply and demand would mean that a property of this nature and potential ought to be readily saleable at a full market value.

"In answering your next paragraph:

(i) I consider the property to be slightly less

saleable if the cottage were separately inhabited because of the obvious disadvantage of having very close neighbours and I consider that this may affect value by around 10%, although this is difficult to quantify.

(ii) I would consider the cottage to be saleable with even just a fairly small patio style garden as indicated in valuation (b), although obviously more saleable with a larger plot, although not substantially more valuable, say £2,000 - £3,000."

The boundaries between the main house and garden and building plots and The Cottage were apparently shown on a plan that had been attached to the letter of instructions, but which unfortunately has not been available to be produced to me, so that it is not possible to see exactly what the boundary of The Cottage was for this purpose. The appeal has been presented to me on the basis that the boundary of The Cottage did not include any part of the garden, but simply included the thin strip of patio immediately in front of it. I have seen, as the learned judge was also able to see, photographs of the house and The Cottage showing their relative positions.

Further correspondence took place between the solicitors for the bank and Mr. Tucker, designed particularly to elucidate Mr. Tucker's views on the effect of the restriction in the planning permission, but no point was taken in the correspondence on his basic approach to what he describes as his thoughts on the current open market values, and, in particular, the opportunity was not taken to ask him to clarify what he meant when he referred to an effect on value by around 10 per cent if The Cottage was separately inhabited from the main house, a matter to which I shall have to return.

The judge approached the information provided by

Mr. Tucker by describing the argument being put by the second defendant in this way:

"The argument, although there is a quarrel about the figures, runs roughly thus: the claimant, or indeed for that matter the defendants, could sell all of the property subject to the charge except for the annex in the sum of £360,000 on the evidence of the jointly instructed expert before this court, or if one took the view that the repairs which were necessary as a result of water ingress once the claimant took possession of the house and which they would be under a duty to insure for and therefore get repaired, if those repairs were done then it would be £405,000, and that the sum secured even if one looks on the high side are of £40,000 on an earlier mortgage and £300,000 on this charge so that even on a minimum basis of £360,000 the claimant is still secured for their £300,000. I put those figures in a sense in the worst possible way against the defendants. I think there is a good deal in what their counsel says questioning how costs of £84,000 had been run up between the conclusion of the main action and today, so I think the real figures might well turn out to be rather more favourable to the defendants than that, but it seems to me putting them on that minimum basis that there is the argument that the claimants could realise their security without having to sell the annex, and so if it is not necessary to put them out of their home it should not be done."

Then, after referring to the Human Rights Act arguments, he concluded that what seemed to him was the relevant matter was the exercise of his discretion under s.26 of the Administration of Justice Act 1970, and, in relation to that, he said at para.34 of his judgment:

"The basis on which I am entitled to consider exercising that discretion arises, it seems to me, from the possibility that either the defendants or the claimant could sell all the rest of this property, except for the annexe, for enough money to cover obviously first of all the first chargee and then the claimant's, and as property in this area is saleable within a reasonable time, whatever the time it takes to sell a property, three months maybe six, and certainly that would be a reasonable time, that property could be sold, that money could be raised, and so it seems to me there is a basis there for me to do that, but at the end of the day, I come up against this difficulty."

And he then proceeds to rehearse the problems surrounding the planning permission.

On this appeal, the bank wished to adduce further valuation evidence but, for reasons which I endeavoured to give in a short judgment on Friday, I declined to give the bank permission to adduce that evidence in opposition to the evidence of Mr. Tucker. The question which I have to consider on the basis of the evidence which is before me is whether

I have jurisdiction to exercise and, if so, whether I should exercise, any of the powers conferred on the court by s.36 of the Administration of Justice Act 1970. Sub-section (1) of that section provides:

"Where the mortgagee under a mortgage of land which consists of or includes a dwelling-house brings an action in which he claims possession of the mortgaged property, not being an action for foreclosure in which a claim for possession of the mortgaged property is also made, the court may exercise any of the powers conferred on it by subsection (2) below if it appears to the court that in the event of its exercising the 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 other obligation arising under or by virtue of the mortgage.

"(2) The court -

(a) may adjourn the proceedings, or

(b) on giving judgment, or making an order, for delivery of possession of the property, or at any time before the execution of such judgment or order, may -

(i) stay or suspend execution of the

judgment or order, or

(ii) postpone the date for delivery of possession,

for such period or periods as the court thinks reasonable."

As is well known, the origin of that section lay in the desire of Parliament to redress the position at common law as established in particular by the decision in Birmingham Citizens Permanent Building Society v. Caunt [1962] Ch.883, which had held that the court's jurisdiction to stay or suspend an order for possession to which the mortgagee was otherwise entitled was an extremely limited one.

In the present case the issues raised by the possible application of the section appear to me to be as follows:

First, it is necessary to consider the likelihood within a reasonable period of the mortgagor being able to pay any sums due under the mortgage and, in that connection, it is necessary to determine what is due under the mortgage.

Secondly, assuming that it can be shown that the likelihood is that if the power is exercised the amount due under the mortgage will be paid off, whether it is open to the court in a case such as the present to stay an execution of judgment simply in relation to part of the property.

Thirdly, and as will I think become apparent this question is associated inextricably with the first two questions, what is the significance of the fact that the court is directed to consider whether the mortgagor is likely, as a result of the exercise of its powers, to be able to pay off the sums due under the mortgage.

The position is complicated for me by the fact that the issues which have been argued before me were either not the subject of argument before the judge or have not been the subject of findings by the judge. The first of those issues goes to the question of what value should be placed on the house at Northfields if it were to be sold separately from The Cottage, as the second defendant wishes, and on the footing that The Cottage would then be in a separate occupation and ownership from the occupation and ownership of the house itself. On the face of it, Mr. Tucker's valuation answers that question by saying that the main house and garden and building plot, on that assumption, has a value in the region of £360,000 (£405,000). This is the valuation which the bank wished to attack by adducing new evidence which I disallowed, but the bank draws my attention to the fact that the actual evidence of the marketing of the property in the previous year, in March 2000, produced a substantially lower figure than that put forward by Mr. Tucker, and that that had all taken place before there was any water damage.

The main point made by the bank is that, on its true interpretation, Mr. Tucker's letter cannot really mean what it says. As Miss Gibaud forcefully submitted to me, it is clear that the starting point of Mr. Tucker was to take the value of the main house, plus the building plot, plus The Cottage, at £455,000 in its existing condition, to take the value of The Cottage as £95,000, and appears to have arrived at his valuation of the house, garden and building plot, excluding The Cottage, by the simple process of subtracting the £95,000 from the £455,000, thereby making no allowance at that stage for the 10 per cent. reduction in value which later in his letter he says should be applied to reflect the adverse effect on saleability if The Cottage were separately inhabited.

I am bound to say that I find Mr. Tucker's reasoning on this point extremely difficult to deduce from the terms of his letter, and it is at least possible that Miss Gibaud is entirely right in the construction which she asks the court to place upon it. However, it seems to me that that is a matter which could have been clarified by inviting Mr. Tucker's own comments on the point at the time, and even by inviting his comments on the point for the purposes of this appeal. But that course has not been taken, and what the court is left with is the bare statement by the jointly instructed agent, on the hypothesis that he was asked to consider that the main house and garden, with The Cottage separately owned and occupied, has a value in the region of £360,000 or, if repaired, £405,000, and that while one may well have one's suspicions about that figure in the light of the later comment in his letter, I have been narrowly persuaded by Mr. Janusz, for the second defendant, that that is the basis upon which, on this appeal, the court should proceed, as Mr. Tucker has advised.

The next issue which arises on the figures is whether, for the purposes of doing the relevant sum, one should take the repaired or the unrepaired value of the house. The position here has not been the subject of evidence although

I think that it is fair to say there is some common ground as to the nature of the dispute between the parties. The issue essentially is as to whether the bank is bound to apply the product of the insurance claim which it has in effecting the repairs which were caused by the flood which has given rise to the insurance claim.

The position that the bank has taken is that the advice it has received is that the property is likely to achieve its best value if marketed as a whole to a developer who would redevelop the whole site and, on that footing, it would be a waste of money to apply the proceeds of the insurance claim to repairing the property, and would be more beneficial to the defendants, and indeed to the bank, to apply it instead, as the charge entitles it to do, to the reduction of the amount outstanding under the mortgage: see clause 8 of the charge. In fact, I am told by Miss Gibaud, on instructions, and this was contained with some of the evidence as to value I did not allow to be adduced, but which does confirm the instructions which she has, the bank has been advised that, as a result of drying out of the water damage that has occurred over the last 12 months, the cost of repairing the water damage, and therefore the amount of the claim, would only be some £15,000 to £20,000, i.e. considerably less than that implied by Mr. Tucker's valuation.

What is the relevance of all this to the question of whether I should take the repaired value or the unrepaired value for the purposes of the claim? It seems to me, on the very limited evidence which I do have, that the court is simply not in a position to take a view one way or the other as to whether the proper course for the bank to take is to pursue the insurance claim and apply the proceeds in repairing the property before undertaking any sale of it, or whether the stance of the bank currently being adopted is in fact justified. There is no application before me, and there was no application before His Honour Judge O'Brien, for any form of mandatory order requiring the bank to do that, and, in the absence of such an application, there is no reason, as it seems to me, for the court to assume that the bank would do that.

There is also the consideration that although it may be the case, and I think perhaps logically has to be the case, that it is the second defendant's submission that she should have the conduct of the sale of the house, there is no suggestion that the second defendant is able, short of some application forcing the bank to make an insurance claim and use it in a particular way, that she is going to be able to effect the repairs before putting the house on the market. On that footing, it seems to me that the only assumption I can on the present evidence make for the purposes of s.36, is to assume that the house, if marketed separately from The Cottage, will be marketed and sold in its unrepaired state and, on that footing, adopting Mr. Tucker's figures, I take the figure of £360,000 as being the gross amount which would be realised on a sale. From that would have to be deducted something in respect of selling costs. Again I have no evidence. The second defendant asks me to take a figure of some 4 per cent. of the gross proceeds; the bank asks me to take a figure of 5 per cent., it being the bank's evidence that, in its experience, total selling costs usually are in that region. Something might depend in that respect on whether the sale is conducted by the bank or by the second defendant. On any view, however, there are going to be costs incurred which are unusual in the sense that some additional costs are going to be incurred in providing a suitable separate title for the house, with all necessary easements granted and reserved in relation to the hiving off of The Cottage, and, on that basis, it seems to me that the sale costs are going to be on the high rather than the low side, and I would therefore take the figure of 5 per cent. for those purposes.

Of course a consequence of taking the value in its unrepaired state is that some figure has to be put on the bank's insurance claim and then deducted from the amount outstanding under the mortgage. It appears to me that, again on very limited information, the amount of that insurance claim is going to be roughly equivalent, coincidentally, to the sale costs, and those two figures therefore cancel themselves out.

That leaves me to consider what is outstanding under the charge. Before the judge it was common ground that sums totalling some £36,000, which the first defendant owed to the bank as a result of the costs orders made against him in the two sets of proceedings to which I have referred, were included as liabilities secured by the charge, which was indeed an all moneys charge, affecting all moneys owed by either of the defendants to the bank. In his argument in reply, Mr. Janusz, conceding that he was raising a new point, took the position that, as a result of the peculiar history of this charge, it was not clear that this liability in respect of costs was subject to the charge, and he pointed out that there was no reference to those costs orders in the original particulars of claim in the possession action. It seems to me that this is not a point which it is open to him to take, the whole argument below having been on a different footing, and the question as to whether the costs liabilities are covered by the charge not one that can simply be decided by a reference to the documents on which he relied. Indeed, a simple reference to the provisions of the charge would, in any event, indicate that the point was a bad one.

The amount said by the bank to be owing to it on that footing consists of a sum of £235,568.52, consisting of the judgment debt and the costs, together with interest to the 6th March 2002, and, secondly, a figure in respect of costs incurred by the bank from October 1999 to the 6th March 2002. So far as that is concerned, the bank invites me to make the assumption that if the second defendant is successful in principle on her appeal, then that would affect the costs order below by resulting in the bank being entitled to only four-fifths of the costs below, the defendants notionally having been successful in respect of one-fifth of the costs, and, on that footing, the bank calculates that the total sum which is covered by the charge should be taken as a sum of some £314,267.

The second defendant resists that on the basis that the liability in respect of costs, which has not yet been the subject of detailed assessment, may turn out to be too high, and has pointed to one or two figures in the schedule supplied by the bank which she would wish to attack. However, the bank's entitlement to add costs to its security is a contractual one, and, accordingly, the second defendant will face the difficulty of having to rebut a presumption as to the reasonableness both of the incurring of the costs and of the amount of the costs under a taxation pursuant to CPR 48.3, and it would, it seems to me, be wrong for me to treat the bank's entitlement to add the costs which it has incurred to its security as being subject to any significant reduction for the purposes of the exercise which I have to conduct, of deciding whether the discretion should be exercised so as to stay the execution of the order for possession.

The effect of the figures I have so far mentioned is that the amount owing to the bank is to be taken as £314,267. There is a first charge securing some £40,000. Accordingly, if the property were to be sold at Mr. Tucker's figure of £360,000, and were to be sold tomorrow for that sum, the net proceeds, after allowance has been made for the charges on sale and a crediting of the insurance proceeds to the defendants, would just be sufficient to pay the sum due to the bank. However, the property, on any view, is not going to be sold tomorrow. The period of time sought by the second defendant in order to achieve a sale is a period of up to six months, and interest on the sums owed is running at 8 per cent. per annum. If the period took the full six months and there was no alteration in the property prices in the interim, then the resulting interest figure of nearly an additional £13,000 would take the matter well outside the criteria laid down by the section; indeed even quite a short period of delay would do so.

Accordingly, it does not seem to me that the evidence, as I have analysed it, does establish the likelihood that a sale will result in the amount due under the mortgage being paid off, and I emphasise that what the section requires me to find is a likelihood and not, as His Honour Judge O'Brien appears to have considered in his judgment, simply the possibility that that will be the case.

If I am wrong about that, it is necessary to consider the other argument principally relied on by the bank, namely that there is no jurisdiction under s.36 to stay a possession order over part of the mortgaged property which is the subject of the possession order. The bank submits that the only power in the court is a power to suspend the whole possession order, and submits that that is not only the literal construction of the section, which indeed it is, but is also a sensible and logical construction of the section given the practical difficulties that are likely to arise in marketing any property where there is confusion as to rights to vacant possession and occupation; and, secondly, the difficulties that are also likely to arise in agreeing boundaries.

To those considerations I think may also be added the difficulties that may arise in providing for necessary cross easements on any separation of the properties. It would appear that, given the physical layout in the present case, the only problem that might arise in this case would be in relation to easements in relation to water supply, although the evidence on the point is in fact slender. But if the suggestion is that the court should be able to stay part only of an order in order to allow the mortgagor to remain in possession of that part of the property, but to allow the mortgagee to continue in possession of and to sell the remainder of the property, it seems to me that it would have been necessary for Parliament to provide in those circumstances additional powers for the court to enable it to, if necessary, impose particular conditions on the parties in circumstances where they were unable to agree on the necessary questions of boundaries and easements. It perhaps goes without saying that circumstances such as the present case are ones where it is unlikely that there will be ready agreement between the mortgagees and the mortgagor.

Of course the whole problem of suspension in part only only arises in a case where, as here, the bank has already obtained possession of a large part of the property. The situation at which s.36 is directed is a situation where the mortgagor still remains in possession of the whole of the property, and is seeking a time within which he or she expects to be able to realise sums sufficient to pay off the whole of what is due under the mortgage. In those circumstances, there will of course be cases where the mortgagor's scheme is to sell off only part, and from the part so sold to satisfy the mortgage debt. But that does not involve construing the section so as to enable the court to stay or suspend an order in relation to part only of the property.

It seems to me that the real difficulty for the defendants in the present case is that they have in fact given up possession of the house to the bank but yet wish to force a situation in which that which they have given up is sold so as to realise sufficient to pay the mortgage debt.

That brings me to the third general issue arising under s.36, which is by whom it is contemplated that the property would be sold in the present case. Section 36 directs me to consider whether the mortgagor is likely to be able within a reasonable period to pay any sums due under the mortgage. So I think that the application being made to me, although it appears to have been made in a different way to the judge, is not an application that there should be a suspension of the order so as to enable the bank to sell the house, but that there should be a suspension of the order so as to enable Mrs. Alcorn, the second defendant, to market and sell the property. But the problem about that is that, first of all, she does not have possession of the house, and without possession it is difficult to see how she can effectively sell the house. Secondly, it is unclear to me, at all events, how she can do that, other difficulties aside, without the

co-operation of her husband's trustee in bankruptcy, as to whose attitude I have no evidence. Thirdly, it is not clear to me on what basis she could ask to be put back into possession of the house in order to enable her to effect a sale of the house alone which the bank is unwilling to undertake itself.

For all those reasons, it seems to me that she faces an insuperable difficulty in proving that she is likely, simply as a result of my suspension of the order, as it currently exists, to be able to realise the property and pay the sums due under the mortgage within a reasonable period.

Accordingly, I am not persuaded that this is a case either where I have jurisdiction to exercise the power under s.36(2) or that it is appropriate to do so.

The second defendant relies, in addition, on the effect of Article 8 of the European Convention in support of the application under s.36. As I understood his argument,

Mr. Janusz simply invited me to consider the effect of Article 8 on the construction of s.36; in other words, the submission was that Human Rights Act points were only relevant in the event of my holding that s.36 on its terms prevented the granting of a partial stay of execution even in a case where, the terms of that section apart, it would otherwise be appropriate, having regard to the ability of the mortgagor to pay off the mortgage debt, to adopt some such solution as, for example, requiring the bank to conduct a marketing exercise to see if the house alone could be realised for sufficient sums without prejudice to the right of the bank to resort to its other security in the form of the home should that exercise prove, in the event, fruitless.

Miss Gibaud, on behalf of the bank, submitted that, in any event, the second defendant could not overcome the hurdle of showing that The Cottage had at any relevant time been her home for the purposes of Article 8, she only having gone into residence of The Cottage after the court had declared that the bank was entitled to possession of the house and The Cottage, and had therefore done so in October 2000 in the full knowledge that she was there as a trespasser as against the bank, and that that did not establish a sufficient and continuous link with the residence for the purpose of the autonomous definition of "home" which is recognised by the authorities for the purposes of Article 8: see, in particular, the discussion of the authorities in Qazi v. The Council of the London Borough of Harrow [2001] EWCA Civ 1834.

On that question, I prefer to express no view. It seems to me, however, that her general submission on the effect of the Human Rights Act in relationship to a mortgagee's action for possession is correct, namely, that the matter is regulated by s.36 of the Administration of Justice Act 1970 in a way which draws a balance which Parliament was entitled to draw between the interests of occupants of dwellinghouses and the interests of mortgagees, and does so in a manner which is proportionate and reasonable, and allows the court, in the exercise of its discretion, to apply criteria of reasonableness and proportionality in either granting or denying the mortgagee its remedy.

In the present case, since I have come to the conclusion that the second defendant has not proved that she is likely to be able within a reasonable period to pay off what is due under the mortgage, were I to grant the limited stay which has been sought it does not seem to me that I need to say anything more about the arguments under the Convention which have been addressed by counsel.

For those reasons, I would dismiss this appeal.

MISS GIBAUD: My Lord, in those circumstances, we would ask for permission to be granted to reissue the warrant of execution. Our position is that the possession order of 29th October 1999 stands, and therefore we do not need a further possession order within a certain number of days, but we do need permission to reissue the warrant of possession.

My Lord, in addition, we will not in fact require an order of the court that the costs of this appeal be paid by the second defendant to the bank, but we would ask in any event for the court to make a similar order as that which His Honour Judge O'Brien made on the 21st September, that the defendants shall pay the claimant's costs of this appeal, to be assessed if not agreed, and to be added to the security.

MR. JUSTICE HART: Costs assessed on what basis?

MISS GIBAUD: My Lord, to be assessed on the contractual basis.

MR. JUSTICE HART: Yes.

MISS GIBAUD: My Lord, that is all I would wish to say.

MR. JUSTICE HART: Thank you.

MR. JANUSZ: My Lord, having just lost the appeal my position is rather difficult, but I do ask your Lordship to consider that the reason why we ended up coming on appeal in this case is because of a point raised by the claimant regarding the planning permission, which I described earlier on in the hearing as being a red herring, and, in my submission, properly described as being a red herring, because it is quite clear from the evidence before the court that this planning permission point was a bad one. His Honour Judge O'Brien, in my submission, got it wrong, and in the end I have not had to argue that at any great length because subsequent events overtook the matter.

I say that it would not be appropriate in this case for the court simply to say that the costs of this appeal should be borne entirely by the second defendant. The appeal has been brought about, as I have already said, as a result of a point being taken by the claimant which the judge seized upon, perhaps understandably in the way that he did, to short-circuit the matter, and I have been driven to vindicate my client's position in regard to planning permission and have had to launch this appeal, and only at this stage has your Lordship repeated your Lordship's interpretation of the evidence, and of course for the moment I would ask your Lordship to reconsider, and, in those circumstances, I would ask your Lordship to consider what the proper order ought to be.

I also submit that of course the costs alone are in part at large, and my position there of course is that it is in regard to the costs of this appeal. But I submit that the proper order for costs in relation to this appeal should be no order for costs.

MR. JUSTICE HART: I do not need to trouble you on that, Miss Gibaud.

So far as costs are concerned, the appeal has been unsuccessful. The fact that it might have been successful had the scope of the appeal been limited to the one point on which the judge decided it seems to me irrelevant, or largely irrelevant, the question of who should pay the costs of the appeal. The question was whether, for whatever reason, the judgment of His Honour Judge O'Brien should be upheld, and the bank has succeeded in upholding it, albeit on a different process of reasoning from that adopted by the judge. That does not seem to me to give a ground for refusing the bank its costs of the appeal.

Accordingly, I will make an order that the bank should have its costs, to be assessed on the contractual basis, and to be added to the security.

Mr. Janusz, on the permission to reissue the warrant

----

MR. JANUSZ: My Lord, I cannot see any principle against that application. The only issue is what date ought to be specified. In the circumstances, and I accept that I may be asking for an indulgence on behalf of Mrs. Alcorn, which might perhaps be seen to be asking too much, I would ask for a period of four weeks.

MR. JUSTICE HART: That would be to enable her to make arrangements. In practice, how long after the warrant reissue is an appointment obtained and so forth?

MR. JANUSZ: My Lord, I cannot say. I think it varies. It depends probably in part on the extent to which ----

MR. JUSTICE HART: How busy the bailiffs are.

MR. JANUSZ: My Lord, how busy the bailiffs are and how much the claimant pushes.

MR. JUSTICE HART: I will hear Miss Gibaud on that. I am minded to give you permission to reissue and to direct the warrant not to be executed for 28 days.

MISS GIBAUD: My Lord, obviously the bank would ask for 14 days, but, my Lord, there is apparently a delay of some weeks between the issuing of the warrant and the actual execution. So, my Lord, I would ask you to take that into account as well as the matter has been going on for a very long time.

MR. JUSTICE HART: I give permission to reissue the warrant for execution not before 28 days from today.

MR. JANUSZ: My client will have to consider her position in due course in the light of such advice as I may well give her, but of course I need to consider asking your Lordship for permission to appeal at this stage.

MR. JUSTICE HART: I do not think I have any jurisdiction to grant it.

MR. JANUSZ: No, of course your Lordship does not have, but ----

MR. JUSTICE HART: That is why I raised the question actually of the timing of the warrant; but you will have to make application elsewhere.

MR. JANUSZ: My Lord, indeed. I am afraid I had forgotten myself, and indeed of course I have to apply directly to the Court of Appeal to get over the added hurdle of it being a second appeal.

MR. JUSTICE HART: Yes. I am grateful to counsel for their assistance.

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