English and Welsh Courts - Miscellaneous

COUNTY COURT

		The Quayside Newcastle upon Tyne NE1 3LA
		6th December 2013

1. Her Honour Judge Moir : This is the most recent application in a long line of applications that Ms Foxton has had to bring before the court in respect of breach of the terms of the Consent Order reached between the parties on 22^nd August 2011.
2. That Order was made by consent, when both parties were legally represented. The Order dealt with the financial situation upon the break up and divorce of the parties. The Order was that the respondent transferred to the petitioner the legal estate and beneficial interest in the former matrimonial home and that the respondent undertook to the court to discharge all mortgage interest and monthly capital payments due in respect of the mortgage, in favour of Santander, and then to redeem the said mortgage on or before 9^th September 2011. The redemption of the mortgage has not happened; there have been payments, on an interest only basis, in respect of the mortgage and the regularity of those payments has been questionable.
3. I have from Ms Foxton a schedule of when payments have not been made after September 2011 and there are five occasions when just no payment was made. The mortgage has been brought up to date on various occasions and indeed as the court deals with this matter today, it seems that there are no arrears. There are no arrears because a payment has been made this morning of £191, which clears the mortgage payment for November. Ms Foxton received a letter from Santander on 29^th November saying that the direct debit which was due had not been paid and that there was owing £190 in respect of the mortgage.
4. It is clear that Mr Pocock is not abiding by the terms of the Order and indeed the agreement that there should be payment of the mortgage. It has caused extreme stress to Ms Foxton. She has had to come to court repeatedly, merely to get the mortgage paid and to ensure that she does not lose her home. Mr Pocock has come to court; he at various stages has promised that the financial situation will be sorted out; it is right to say that when he actually comes to court he makes the attempt just before the court hearing to clear the mortgage payments.
5. I am satisfied that on the basis of the interest only mortgage, he has been in a financial position to pay it and that is evidenced by the fact that he has in fact, at later stages, paid it. But this cannot go on. It cannot go on, on the basis that there are continuing returns to court; it cannot go on, on the basis that the stress which is occasioned every month to Ms Foxton and resulting in court appearances. The Order was made, it was a Consent Order, there was legal representation and the Order must be complied with.
6. Mr Pocock, I understand, wishes to attempt to sort this matter out in a more beneficial way. He would like to be able to deal with it by way of a repayment mortgage; he needs Ms Foxton's consent to the mortgage being dealt with in that way. If Mr Pocock was able to show that he was in a financial position to do that, and that it would be maintained, I have no doubt that would be beneficial to Ms Foxton. But at the moment she has no confidence and indeed I have no confidence that Mr Pocock is in a financial position to do that. He may wish to do it; he may see that as a good way forward; but until any arrangement is altered, it seems to me that he needs to be able to provide the evidence both to Ms Foxton and the court that financially he will be able to pay the increased mortgage payments, which will inevitably result from a repayment mortgage.
7. My intention is this and Mr Pocock is aware, having been here at court on Tuesday, I do find that the respondent, Mr Pocock, has been in breach of the Order. However, he has belatedly done his best to bring the mortgage up to date and indeed today it is up to date. What I will do is make a fourteen day Order of imprisonment, but that Order will be suspended, upon the basis that the mortgage is paid. It will be suspended for a period of six months. As long as the mortgage is paid and there are not these letters appearing on the mat for Ms Foxton, then the sentence will of course not be activated.
8. If, however, these letters continue to appear in the post, then Ms Foxton will send them through to the court and there will be a hearing to look at the situation and if it is proved that there has been a further breach, then the suspended sentence will cease to be suspended and will become an immediate sentence.
END OF JUDGMENT

We hereby certify that this judgment has been approved by Her Honour Judge Moir.

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