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Case No: B1/2000/0237
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM COLCHESTER COUNTY
COURT
His Honour Judge Brandt
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 12 October 2000
B e f o r e :
LORD JUSTICE PETER GIBSON
LORD JUSTICE MUMMERY
and
LORD JUSTICE LATHAM
|
ALLIANCE
AND LEICESTER PLC
|
Appellant
|
|
-
and -
|
|
|
SLAYFORD
AND ANOTHER
|
Respondent
|
- - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - -
Mr. Ali Malek Q.C. and Mr. Andrew Harper (instructed by Mr Martin Rice,
Solicitor, of Alliance and Leicester PLC for the Appellant)
Mr. Andrew Marsden (instructed by Messrs Whiskers of Harlow for the
Respondents)
JUDGMENT
As Approved by the Court
Crown Copyright
Peter Gibson L.J.:
1. The Defendants, Charles Slayford and his wife Susan, apply to set aside an
extension of time granted by Deputy Master Di Mambro on 13 March 2000 for the
service by the Claimant, Alliance and Leicester plc ("the Bank") of a Notice of
Appeal following the grant of permission to appeal by the singlLord Justice,
Sedley L.J., on paper. If that application is unsuccessful, the Bank appeals
from the order of His Honour Judge Brandt in the Colchester County Court on 2
December 1999 whereby he allowed Mr. and Mrs. Slayford's application to strike
out an amendment allowed by District Judge Gypps to the Bank's Particulars of
Claim. By that amendment the Bank sought to claim a monetary judgment in
respect of the substantial arrears owed by Mr. Slayford to the Bank under a
Legal Charge. Earlier in 1996 Judge Brandt had refused an order against Mrs.
Slayford for possession of the home of Mr. and Mrs. Slayford which was
mortgaged by the Legal Charge. Judge Brandt struck out the amendment as an
abuse of the process of the court.
2. The history of this dispute commences in 1987 when on 6 November the Bank
lent Mr. Slayford £20,000 on the security of 13 Highbury Terrace,
Halstead, Essex ("the Property"), partly to enable him to purchase the interest
of his first wife. It was a condition of the loan that the Property was in Mr.
Slayford's sole name. On 3 November 1987 the Second Defendant, who was not yet
married to Mr. Slayford but was also in occupation of the Property, consented
in writing to the rights which she had or might acquire in the Property being
subject to the rights, interests and remedies of the Bank as mortgagee over the
Property and undertook not to assert against the Bank any right or interest
over the Property. On 8 December 1987 by a Legal Charge Mr. Slayford charged
to the Bank the entire legal and beneficial interest in the property as
security for all monies owing by Mr. Slayford to the Bank. That Legal Charge
contained the usual personal covenant to repay the borrowings and the interest
thereon by monthly instalments and made the conventional modifications to the
statutory power of sale conferred on a mortgagee. Five advances subsequent to
the initial £20,000 followed between 1988 and 1989, four for the purpose
of making improvements to the Property and a fifth to enable Mr. Slayford to
purchase a car. In all £36,700 was advanced by the Bank to Mr. Slayford
on the security of the Property.
3. Mr. Slayford unfortunately became unemployed and by 5 June 1991 he was
nearly £3,300 in arrears. The Bank commenced proceedings against him that
day, alleging those arrears but claiming only possession of the Property. Mr.
Slayford in response and acting in person admitted the Bank's entitlement to
possession and "the full amount claimed", but said that he was unemployed and
that his wife was also not working as she was an epileptic. Mrs. Slayford then
went to solicitors and on 7 August 1991 applied to be joined as a party. She
claimed that she had made contributions such as entitled her to a proprietary
interest in the Property, that she did not understand the nature and effect of
the consent signed by her and that her equitable interest was not subject to
the Bank's Legal Charge. Mrs. Slayford was joined as a Defendant but because
of her condition was allowed to give evidence on affidavit and by way of
answers to interrogatories rather than orally. The Judge tried the claim for
possession against her. On 15 July 1996 he held that she had made a capital
contribution which went into the Property and which gave her an equitable
interest. That, he said, was more than 1% but might not be more than 5% of the
Property and was acquired by the time of the Legal Charge. He found that Mr.
Slayford misled her over the consent which she signed, and that she had
received no adequate advice in signing the consent which was to her
disadvantage. He therefore held that her interest was not postponed to the
Bank's Legal Charge. He refused the application for possession against her and
adjourned the application for possession against Mr. Slayford. The Bank's
counsel stated to the Judge after the judgment that other remedies would have
to be pursued against Mr. Slayford. The Bank was given liberty to restore the
proceedings should Mr. Slayford vacate the Property. There was no appeal from
the Judge's order.
4. On 2 February 1998 the Bank applied for the restoration of the proceedings
against Mr. Slayford and for leave to serve and file amended Particulars of
Claim. Thereby the Bank sought to claim arrears under the Legal Charge of some
£46,000 and to ask for judgment in that sum. At a hearing before District
Judge Gypps on 3 April 1998 when Mr. Slayford appeared in person and Mrs.
Slayford was not represented, leave to amend was given. The hearing of the
money claim was adjourned to Judge Brandt. At a hearing on 2 June 1998 the
Judge asked for an explanation of the benefit which the Bank thought would be
obtained from seeking a money judgment. After a delay of a year, Ms. McGuirk
of the Bank's internal legal department swore an Affidavit on 8 June 1999. In
it she said that the arrears, which at the time of the trial totalled some
£55,000, now totalled £60,730.11, the current monthly instalments
being £1,155.40. She said that if the Bank obtained a monetary judgment
against Mr. Slayford, it could thereafter serve a statutory demand upon him for
the judgment debt and that bankruptcy proceedings could then follow. She added
(in para. 11):
"Admittedly the Claimant would be obliged to surrender its security for the
benefit of the general body of creditors but that security is effectively
worthless by virtue of the overriding interest. The Claimant can then take its
chance with such other unsecured creditors as there may be in order to obtain
some payment toward its debt."
Ms. McGuirk said that the Property was worth in the region of £52,500 and
was subject to another charge to another bank.
5. Mr. and Mrs. Slayford then applied to the Judge to strike out the amended
Particulars of Claim as an abuse of process. At a hearing on 2 December 1999
the judge made plain in the strongest language his disapproval of the Bank's
conduct. Even before the arguments were concluded he said to the Bank's
counsel, Mr. Harper:
"I have to say I find the approach of the [Bank] disgusting beyond belief and I
shall say so. Right, and I do not care who knows it and I do not care whether
you are right as a matter of law or not it is disgusting to try and obtain
possession by the back door against an elderly couple of this kind. It is
revolting beyond belief."
6. When giving judgment the judge was no less condemnatory. He described the
method used by the Bank for calculating what was due as "extortionate" and
after referring to the personal circumstances of Mr. and Mrs. and Mrs. Slayford
he said:
"The morality of the claimant's position seems to me to be completely and
utterly indefensible. I have to say that I find their conduct distressing to
put it at its lowest and positively disgusting at its highest."
He accepted the submission of Mr. Marsden for Mr. and Mrs. Slayford that to
proceed on the amended Particulars of Claim was an abuse of process. The Judge
said:
"The most serious criticism that can be made of the amendment is that it seeks
to enforce or to achieve by a back door that which could not be achieved
through the front door. It seeks in effect to flout what I clearly had in mind
back in July 1996. It seems to me to be a quite flagrant abuse of the process
of the court to look for ways round a judgment with which the claimant is
unhappy."
He continued:
"It does not quite end there. I discussed with Mr. Marsden and Mr. Harper
where one would get if I were against Mr. Marsden's application and the matter
went for trial and all the various issues that could be raised on behalf of the
defendants were not to succeed and it seems to come to this; that I would have
power to say that these arrears should be paid by instalments. I have not gone
into the figures in detail, I do not need to it is quite obvious from Mr.
Slayford's position that any order towards the arrears would not be one that
could possibly satisfy the judgment for a very long time, certainly not in Mr.
Slayford's lifetime; I suspect not in the lifetime of anyone in this court.
There would then be an argument as to whether it was a judicial exercise of
discretion to make an order which would inevitably fail ever to satisfy the
judgment. I am bound to say that I would make such an order if I thought I
possibly could and I have no doubt that every other judge in the land would do
the same thing."
7. The Judge then said he needed to look at the case in the round. He
accepted that there was an issue of principle but said that it could be tested
on some other occasion. He said that he was entitled to look at issues of
proportionality and that it was "out of all proportion to anything that in this
particular case this claimant is likely to achieve." He found it difficult to
think of a claim which was a more flagrant abuse of the process. He
accordingly struck out the amended Particulars of Claim and refused permission
to appeal.
8. The Bank then applied to this court for permission. In granting
permission Sedley L.J. limited it to one ground and for one purpose only, "to
determine whether in the circumstances of this case the Bank's attempt to
proceed for debt in lieu of possession could properly be held by the judge to
be an abuse of process".
9. The Lord Justice's order was on the standard printed form then in use by
this court. This states in print that "permission to appeal be granted and
that time for serving notice of appeal be extended until the expiration of 10
calendar days from the date of the seal on this order (4.30pm on ". And then
the form leaves a space which someone from the Civil Appeals Office has filled
in by writing "5th March 2000)". That date was the appropriate date
having regard to the seal affixed to the order, showing 24 February 2000. 5
March was a Sunday.
10. The Bank thought that it had until 4.30pm on Monday, 6 March, to serve
the Notice of Appeal because of CPR r. 2.8 (5). But that rule only applies if
something has to be done at the court office. In this case all that was
required was service on Mr. and Mrs. Slayford. The Bank, according to its
evidence, sent a fax to the solicitors to Mr. and Mrs. Slayford at 4.21pm on 6
March (thereby overlooking r. 6.7 which requires service by fax to be completed
by 4pm on a business day, otherwise service will be deemed to occur on the
following business day). Mr. and Mrs. Slayford's solicitors, according to
their evidence, did not receive this fax till 5.14pm on 6 March. The
significant fact is that service was not effected by 4.30pm on 5 March as the
order required and is deemed to have been effected only on 7 March.
11. When the fact of late service was pointed out by Mr. and Mrs. Slayford's
solicitors to the Bank, it prepared an application for an extension of time for
service of the Notice of Appeal. It was received by the Civil Appeals Office
on 20 April but returned to the Bank on 3 May unissued, because, as the Bank
was told by the Civil Appeals Office, the Deputy Master had of her own motion
extended time without notice to Mr. and Mrs. Slayford. From enquiries which I
have caused to be made it appears that the Deputy Master did this on 13 March.
By r. 3.1(2)(a), r. 3.3(1) and (4) and r. 52. 16(1) and (4) the Deputy Master
had power to extend time of her own motion without a hearing. But an order
should have been drawn up and the order should have contained a statement that
a party affected had the right to have the order set aside (r. 3.3(5)(b)).
That, regrettably, was not done. It is not, however, in dispute that Mr. and
Mrs. Slayford have the right to apply to set aside that order, which in any
event appears to have been made without knowledge of all the relevant
circumstances. The practice relating to an extension of time in this court is
now governed by the Part 52 Practice Direction (see paras. 5.2 and 5.3).
12. The first question for this court on this hearing was therefore whether
time for service of the Notice of Appeal should have been extended. Mr.
Marsden submitted that the Bank, a large organisation with its own legal
department, deserves little sympathy in delaying service till the last moment
perceived by it to be open to it. He argued, first, that the court should
balance the interests of the parties and should use its powers flexibly by
reference to the criterion of justice. He pointed to the strain on Mrs.
Slayford caused by these proceedings and said that the Bank had had its chance
and lost it through its own fault, that the financial consequences to it of
being refused an extension of time would be trivial and he submitted that it
should find some other case, if it desired a test case, and should leave Mr.
and Mrs. Slayford in peace. Second, he said that for this court to allow the
appeal by the Bank to go ahead, with the prospect of proceedings over the
Property, which commenced in 1991, continuing until 2003 would amount to an
unanswerable breach of Mr. and Mrs. Slayford's rights under Article 6(1) of the
European Convention on Human Rights to a fair and public hearing within a
reasonable time. Further he said that it would be unlawful for this court so
to order by reason of s. 6(1) and (3) Human Rights Act 1998. He relied on
Darnell v United Kingdom (1993) 18 EHRR 205 in support of his
submissions based on the Convention. A third point taken by Mr. Marsden was
that it would in any event be pointless to extend time because on the Bank's
own admission in its skeleton argument, the Judge had decided to strike out on
two grounds, (a) abuse of process, and (b) the futility of entering judgment
against Mr. Slayford as the court had power to order payment by instalments
which would leave the judgment debt undischarged in Mr. Slayford's lifetime,
and leave had not been given to appeal on the second ground.
13. I will consider these in turn.
14. (1) Mrs. Slayford in her state of health deserves sympathy and I can
readily understand why she and her husband want to be rid of the threat to
their home. I also accept that under the CPR it is even more important that
parties to litigation should keep the time limits laid down by court orders and
by the rules. But the court has to have regard to the overriding objective and
to deal with cases justly, and that means justice to both parties. Even large
institutions like banks in litigation with impoverished individuals are
entitled to be treated fairly by the court.
15. The delay in serving the Notice of Appeal is short and Mr. and Mrs.
Slayford do not claim to have suffered any prejudice through the Notice of
Appeal reaching their solicitors late on the afternoon of 6 March instead of by
4.30pm on 5 March. In my judgment it would be a wholly disproportionate
response to the fact of the short delay to deny the Bank the opportunity to
pursue the appeal for which leave was given.
16. (2) Mr. and Mrs. Slayford cannot invoke the Convention directly against
the Bank as it is not a public authority. But let me assume, without deciding,
that they can require this court via s. 6 of the 1998 Act to respect their
rights under s. 6 to have their civil rights and obligations determined by a
hearing within a reasonable time. The premise of Mr. Marsden's submission is
that Article 6 requires the court to look at the entirety of the time the
Property, as the home of Mr. and Mrs. Slayford, was under threat. Thereby he
goes back to 1991 and he goes forward to 2003 as the time when there will be a
final determination on the footing that if a money judgment is obtained and
Mr. Slayford is made bankrupt and if the trustee in bankruptcy chooses to bring
proceedings to sell the Property those proceedings are all part of the same
subject matter. He relies on the Darnell case. But the circumstances
of that case were very different. The case involved the single act of the
dismissal of a consultant microbiologist with serious damage to his
professional career as a result of time lost from the practice of medicine, the
United Kingdom conceding a breach of the Article in the length of time of
proceedings relating to the dismissal. In the present case the proceedings
brought against Mr. Slayford in 1991 were for possession. The intervention of
Mrs. Slayford caused those proceedings and the question of whether possession
could be recovered against her not to be determined until 1996. That delay is
not unreasonable in the circumstances. The claim to a money judgment which the
Bank now seeks to bring against Mr. Slayford alone is not a claim for
possession against Mr. and Mrs. Slayford. It is a separate claim relating to a
different issue, the only questions on which are, Mr. Marsden accepts,
questions of law relating to limitation and quantum. Moreover what is sought
to be claimed by the Bank is not in respect of a single act by Mr. Slayford but
a series of defaults in his obligations for the last 10 years and which are
still continuing. To the extent that there has been delay, that delay has been
entirely beneficial to Mr. and Mrs. Slayford who have been able to continue to
enjoy their home without paying the Bank a penny out of their own pockets, such
payments as there are to the Bank being made by the Department of Social
Security and only amounting to two thirds of the monthly sums due. Further if
a money judgment is obtained by the Bank and Mr. Slayford is made bankrupt, it
is a matter for the trustee in bankruptcy alone whether proceedings to sell the
property are brought. It is quite wrong to think of those proceedings as part
and parcel of the same proceedings as were commenced in 1991. I cannot see how
the Convention can properly be invoked to deny the Bank the opportunity to
appeal. Indeed the Bank might well have cause to complain if a short delay in
serving its Notice of Appeal which caused no prejudice were to be used to deny
it the opportunity to obtain a money judgment for arrears which on any footing
are substantial.
17. (3) Mr. Malek Q.C. for the Bank now says that the Bank's skeleton
argument was erroneous in stating that the Judge decided to strike out on two
grounds. He argues that abuse of process is the single ground for the decision
and the Judge's comments on the making of an instalment order are obiter. I
agree. The Judge had decided that the Bank was not to be allowed to go for a
money judgment. He could not therefore decide what he would do if the Bank
obtained such judgment, and it can be seen from the Judge's language that he
was merely discussing possibilities. I would add that despite the Judge's
certitude as to what every Judge in the land would do, no Judge could properly
exercise the power conferred by s. 71 County Courts Act 1984 to make an order
for payment of a money judgment by instalments which it was known would not
satisfy the judgment within the lifetime of the debtor or indeed within a
reasonable time. As this court said in Cheltenham and Gloucester Building
Society v Grattidge (1993) 25 HLR 454 the discretion under s. 71 must be
exercised consistently with s. 36 Administration of Justice Act 1970 and s. 8
Administration of Justice Act 1973. Where there is no possibility of payment
of the arrears within a reasonable time it would be quite wrong to use the
power in s. 71 to order payment by instalments.
18. We indicated at the hearing on 9 October that we dismissed Mr. and Mrs.
Slayford's application based on the failure by the Bank to serve the Notice of
Appeal within the time specified in Sedley L.J.'s order. The foregoing are my
reasons for reaching that conclusion.
19. I turn now to the Bank's appeal. Mr. Malek submits that there are two
separate aspects to the issue of whether the application by the Bank for a
money judgment constitutes an abuse of process. One is whether the mere fact
that the Bank is bringing proceedings for a money judgment, which could have
been brought as part of the earlier unsuccessful possession proceedings,
constituted an abuse of process. The second is whether there are additional
elements which render the application an abuse of process.
20. I can deal with the first aspect shortly as it is now accepted by Mr.
Marsden that the Bank was not precluded from bringing subsequent proceedings
for a money judgment merely because it had not sought and obtained such
judgment in the possession proceedings as originally constituted. As every
textbook on real property or mortgages makes clear, a mortgagee has a number of
remedies all designed to enforce payment of what is due to him under the
mortgage, which may be pursued concurrently as soon as the mortgagor is in
default or successively, until payment in full is recovered or the mortgagee
acts in a way which amounts to an election. Thus if the mortgagor chooses to
sue the mortgagor on his personal covenant and obtains a money judgment,
abandons his security and brings bankruptcy proceedings, he cannot thereafter
exercise remedies as a secured creditor. In UCB Bank plc v Chandler
(1999) 79 P & CR 270 a mortgagee brought county court proceedings against
mortgagors for possession and a money judgment, and an unopposed possession
order was made in 1994. In 1996 the mortgagee commenced proceedings in the
High Court for the sums then outstanding. Summary judgment was obtained, but
on appeal the mortgagors sought to argue that the mortgagee was estopped both
by res judicata and under the wider principle laid down in Henderson v
Henderson (1843) 3 Hare 100. Evans L.J. (with whom Brooke L.J. agreed)
pointed out, at p. 274, that the result for which the mortgagors contended was
hardly sensible He said:
"It would mean that the moment the plaintiffs entered judgment limited to the
possession claim, the defendant was automatically released from all further
liability on the money claim. .... It seems to me that the simple answer to
this ground of appeal is that the mere fact of a judgment on the possession
claim does not give rise as a matter of law to an estoppel with regard to the
money claim, and in estoppel I would include the principle of Henderson v
Henderson as well as the strict res judicata estoppel."
I would add that it would not help mortgagors, mortgagees or the courts if
mortgagees had to claim and pursue to judgment all its possible claims at one
and the same time. Mortgagees usually only go for possession initially and
pursue other remedies later if they have to, and that practice is entirely
sensible and to the advantage of all concerned.
21. On the second aspect, both Mr. Malek and Mr. Marsden adopted the approach
suggested by Auld L.J. in his illuminating judgment in Bradford and Bingley
Building Society v Seddon [1999] 1 WLR 1482 (with which Nourse and Ward
L.JJ. agreed). There it is pointed out that the maintenance of a second claim
which could have been part of an earlier one should not in itself be regarded
as an abuse of process but an additional element must be found, the onus being
on the party alleging abuse of process.
22. The Judge thought it plain that the pursuit by the Bank of a money claim
with a view to bankrupting Mr. Slayford was an impermissible attempt to
achieve by the back door what could not be achieved by the front door and
flouted the possession order. Mr. Marsden sought to uphold the Judge on this.
He accepted that it would follow that if the Bank had chosen not to apply to
amend but had commenced separate proceedings against Mr. Slayford, suing on the
personal covenant, or if it had chosen to serve a statutory demand, in each
case with a view to exercising a creditor's ordinary right to recover the debt
by subsequent bankruptcy proceedings, it would be acting abusively. It must
also follow that even if judgment had been sought in respect of the arrears in
the possession proceedings in July 1996 the Bank, when refused permission,
would not have been allowed to obtain judgment if it had indicated the
intention, which every creditor would have, of enforcing that judgment, if
necessary, by bankruptcy proceedings; alternatively if judgment had been given,
it would have been denied the right to enforce it. These are remarkable
consequences, the more so because recovering and enforcing judgment against Mr.
Slayford as a debtor does not directly affect Mrs. Slayford. Her equitable
interest in the Property is left wholly untouched and, if Mr. Slayford were to
be made bankrupt and the trustee in bankruptcy were to seek the sale of the
Property, Mrs. Slayford is not deprived of any defences available to her by
reason of that interest.
23. Mr. Marsden accepts that this is not a case where an unsuccessful party
is making a collateral attack on an earlier decision. Nor is it a case where a
mortgagee has misled the mortgagor about further proceedings. When he was
asked whether there were any authorities which supported his submissions, Mr.
Marsden was unable to show us any. Unfortunately the Judge was not shown
authorities which point in a different direction. In Zandfarid v BCCI
[1996] 1 WLR 1420 a mortgagee bank sought to obtain possession of the
matrimonial home of the mortgagors. The mortgagor wife raised a defence on the
basis of Barclays Bank v O'Brien [1994] 1 AC 180 and, on an application
under RSC O. 88 by the mortgagee, possession was refused. The mortgagee served
statutory demands on the mortgagors and when they were not met, it petitioned
for the bankruptcy of the mortgagors, giving up its security. The mortgagors
claimed that the mortgagee, in commencing bankruptcy proceedings, was seeking
to circumvent the wife's equity. They argued that it should not be allowed to
obtain an order for sale by the back door and called the bankruptcy petition an
abuse of process as being issued for an indirect purpose, the enforcement of
the security by an order for sale of the matrimonial home.
24. In rejecting these submissions, Jonathan Parker J. first rejected the
proposition that the mortgagor wife would be in a weaker position in facing an
application under s. 30 Law of Property Act 1925 brought by the trustee in
bankruptcy than in facing a like application by the mortgagee as a secured
creditor of the mortgagor husband. He said "In either case it would be open to
the wife to submit, for what it may be worth, that the conduct of B.C.C.I.
relied upon by her in the context of her O'Brien defence should tip the
scales against ordering a sale". The judge continued:
"The matter can be looked at another way. Suppose that B.C.C.I. had not
commenced bankruptcy proceedings and the wife were to succeed in her
O'Brien defence. The result would be that B.C.C.I.'s charge attached
only to the husband's beneficial interest in the property, as if the wife had
not exercised the charge. At that point B.C.C.I. could either enforce the
charge against the husband's share and itself apply for an order for sale under
section 30 or it could commence bankruptcy proceedings with a view to the
trustee in due course applying for such an order. I can see no ground for
suggesting that bankruptcy proceedings in such circumstances would be an abuse
....
Nor can it be said .... that the O'Brien defence, if established,
creates some kind of right in the wife going beyond a mere defence. If the
O'Brien defence succeeds, the position will be as if the wife had not
executed the charge in the first place, but I cannot see how it can place her
in any better position than that."
25. The mortgagors in the Zandfarid case sought permission to appeal
from this court. This was refused on 12 July 1996. Millett L.J., with whom
Rose L.J. agreed, describes the wife's claim as completely unarguable. He
pointed out that success by the wife on her defence to the possession
proceedings would still leave the mortgagee a secured creditor of the husband
with a valid and enforceable charge over his interest in the matrimonial home,
though it would have no claim against the wife or her interest. He said that
the mortgagor would have three possible courses of action open to it. The
first was that it could apply to the court for an order for possession and sale
under s. 30, making the wife a party so that she might raise whatever defence
she might choose. Second, as a judgment creditor of the husband it could apply
for a charging order. Third it could do what it did, giving up its security
and bringing bankruptcy proceedings against the husband. He said that the wife
was not prejudiced: "If she is evicted as a result of the bank's application
under s. 30 .... she will be evicted .... because, unhappily, she is married to
a judgment debtor who cannot satisfy the judgment debt except out of the
proceeds of sale of his interest in the property".
26. The Lord Justice said it could make no difference to the exercise of the
court's discretion when hearing an application under s. 30 whether the
application for sale was made by a secured creditor with an equitable charge or
by a trustee in bankruptcy on behalf of all the creditors. He continued: "If
it made a difference, and if it were more advantageous to the bank to give up
its security in order to obtain that advantage, I would see no impropriety in
its doing so. But it does not matter. It will be open to the wife to make the
point as best she can in the proceedings under s. 30 .... when they are brought
against her". He roundly dismissed other allegations of impropriety in the
mortgagee's choice as to how to proceed.
27. The observations made in this court when dealing with an application for
permission to appeal are not authority, but are adopted by Mr. Malek as part of
his submissions. Those observations as well as the remarks of Jonathan Parker
J. seem to me to apply to a situation such as we have here, where Mrs. Slayford
has succeeded in her equitable defence but the Bank wishes to pursue to
bankruptcy its separate claims against Mr. Slayford in respect of his debt. S.
30 has now been replaced by ss. 14 and 15 Trusts of Land and Appointment of
Trustees Act 1996 (and, for a trustee in bankruptcy, s. 335A Insolvency Act
1986), but the new provisions do not make the position of Mrs Slayford any
worse than it was under s. 30, and, it may be said, by the Act specifying
matters relevant in determining applications for sale, her position is somewhat
better.
28. I do not intend to take up time with the citation of further authority,
as the position in law seems to me to be abundantly clear: there is no abuse
of process in a mortgagee, who has been met with a successful O'Brien
type defence taken by the wife of the mortgagor, merely choosing to pursue his
remedies against the mortgagor by suing on the personal covenant with a view as
an unsecured creditor to bankrupting him, even though this may lead to an
application by the trustee in bankruptcy for the sale of the property in which
the wife has an equitable interest.
29. Mr. Marsden submitted that there were two further additional elements in
the present case. One was the delay, and in particular the delay between the
refusal by the Judge of possession against Mrs. Slayford in July 1996 and the
Bank's decision in February 1998 to apply to amend the Particulars of Claim,
followed by the year's delay between the Judge asking for an Affidavit and the
filing of it. Those delays are not explained by the Bank and the latter delay
seems to me unfortunate. But it is to be noted that the Judge took no point on
delay, no doubt because delay has not operated in any way to the prejudice of
Mr. and Mrs. Slayford, who have continued to live in the Property without
personal payment. This is not a case where delay affects the fair trial of the
action, for example where memories of witnesses fade, as Mr. Marsden accepts
that only points of law will arise. There is no need for Mrs. Slayford to
attend court, which she might find stressful. Again Mr. Marsden has recourse
to Article 6 and the Darnell case. Again I have to say that I find them
of no assistance whatever. Indeed it seems to me that the points taken under
the 1998 Act and the Convention fall within the vice to which Lord Woolf M.R.
drew attention in Daniels v Walker [2000] 1 WLR 1382 at p. 1386. Where
the CPR, and in particular the overriding objective, cover the point which a
litigant wishes to take, it adds nothing to try to dress up the point as one
invoking a right under the Convention. The court's obligations to deal with
cases justly includes an obligation so far as practicable to deal with cases
expeditiously and fairly. It is quite impossible to say in a case such as this
when the mortgagor's obligation to make monthly payments continues not to be
met that the delay relied on by Mr. Marsden disentitles the Bank from the
opportunity of obtaining judgment on the whole or even any part of the
arrears.
30. Finally Mr. Marsden relies on the personal circumstances of Mr. and Mrs.
Slayford as another additional element. By that he means their age (Mr.
Slayford is 65, Mrs. Slayford 52)), Mrs. Slayford's epilepsy, the effect on
Mrs. Slayford if litigation is prolonged and their financial circumstances. I
am afraid that these matters, taking singly or cumulatively, do not seem to me
to begin to justify denying a secured creditor who has not hitherto proceeded
on the personal covenant against the mortgagor the opportunity to obtain a
judgment against the mortgagor for what is due. It is simply not an abuse of
process to sue a mortgagor of Mr. Slayford's age and lack of resources when he
has on any footing defaulted so massively on his obligations.
31. Mr. Marsden reminded us that the question of abuse of process must be
considered in all the circumstances of the case. He reminded us too that the
Judge was exercising a discretion and that this court's power to interfere with
the exercise of discretion by a lower court is limited, as explained in G v
G [1985] 1 WLR 647. But looking at all the circumstances I have no doubt
but that the Judge's understandable sympathy for Mr. and Mrs. Slayford led him
into error. He was plainly wrong to find an abuse of process in the Bank
amending its Particulars of Claim.
32. For these reasons I would allow the Bank's appeal, set aside the order of
the Judge and restore the order of District Judge Gypps.
Mummery L.J.
33. I agree.
Latham L.J.
34. I also agree.
Order: Appeal allowed, order of Judge Brant set aside and the order of
District Judge Gypps restored. No order as to costs in respect of the
Defendant's application. Section 11 order in respect of the Defendant's costs
assessed at nil, with liberty to the parties to come back. Defendant's costs
to be assessed in accordance with the Community Legal Services (Costs)
Regulations 2000. Hearing of the money claim to come back before another
Circuit Judge, but not Judge Brant. Application to appeal to the House of
Lords refused.
(Order does not form part of approved judgment.)
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