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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Whittaker & Anor v Soper & Anor [2001] EWCA Civ 1462 (28 September 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1462.html Cite as: [2001] EWCA Civ 1462 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND A STAY OF EXECUTION WITH APPEAL TO FOLLOW
IF GRANTED APPLICATION FOR THE REMOVAL OF A STAY OF EXECUTION AND EXPEDITION
Strand London WC2 Friday, 28th September 2001 |
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B e f o r e :
LORD JUSTICE RIX
____________________
WHITTAKER and Another | ||
Applicant | ||
- v - | ||
SOPER and Another | ||
Respondent |
____________________
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
MR A PARSON (Instructed by Bretherton Price Elgoods of Cheltenham) appeared on behalf of the Respondent
____________________
Crown Copyright ©
Lord Justice Rix:
The litigation
"This is a deplorable story. The way the case has been conducted so far does the defendants no credit whatever. It is almost an abuse of process – there has been a flagrant disregard of the rules. On the face of it there was a spurious application to strike out. Then a perfectly proper arrangement between Lackmaker and Randle has been torpedoed by somebody.
The overriding objective is the achievement of justice. So long as it does not seriously affect other litigants and the proper administration of justice, I am satisfied that it would be wrong to shut out the evidence of Rodney Jackson. I must also ensure that the Claimants suffer no significant prejudice([Morland J then stated the provisional terms of an order which he was minded to make and heard further submissions. He then concluded:] This is a draconian order but in view of the conduct of the defendants it is not unjust."
Morland J's order of 9 March 2001 (the "9 March order")
Morland J's order of 15 March 2001 (the "15 March order")
"1. Paragraph 1(2) of the order dated 9 March 2001 [that was the paragraph of that order requiring payment in of £100,000 by 16 March] be varied by substituting an order that by 4 pm on 6th April 2001 both the First Defendant and [PFSL] must execute legal charges upon the properties mentioned above(to each secure the sum of £200,000 such sum to stand as security for all monies owed and hereafter adjudged to be owed in this action (including damages, interest and costs) by the Defendants to the Claimants."
In addition paragraph 2 of the order provided as follows:
"2. Pending registration of such charges the First Defendant is forbidden from causing or permitting any other new charge to be secured on either property or any tenancy being granted in respect of either property or otherwise dealing with either property."
Thus, although paragraph 1 of the order did not require registration of the charges, as well as their execution, by 6 April, Morland J was concerned to protect the security in favour of the claimants with the injunction contained in paragraph 2 of his order.
Events between 15 March and the trial date of 9 July 2001
"3.1 IN consideration of the Initial Advance the Borrower with full title guarantee hereby charges the Property which is vested in him for the estate or interest specified in the Schedule by way of legal mortgage with the payment to the Mortgagee of all principal interest and other monies payable by the Borrower hereunder or under the Rules..."
"From and after such date as the advances hereunder to the Borrower amount to the Total Advance the Borrower shall pay to the Mortgagee the Instalments referred to in the Schedule on the Payment Dates and continuing until the whole of the Total Advance and of all other principal sums which may be advanced or re-advanced to the Borrower on the security hereof with interest at the Ruling Rate and all other monies covenanted to be paid by the Borrower have been fully paid and satisfied."
"1. You have clearly used a standard instalment repayment mortgage draft which is inappropriate in these circumstances. Paragraph 5.1 should therefore be substituted with the words `that the Borrower will pay to the Mortgagee the Total Advance on the date of judgment in favour of the Mortgagee in proceedings in the High Court of Justice Queen's Bench Division between (1) Peter James Whittaker (2) Alan Frank Gaylor, Claimants and (1) Clive Alexander Soper (2) Brian Smith, Defendants, case number HQ0003334'.
2. The name of Peter Whittaker should be included in the details of `Mortgagee' in the schedule to the legal charge."
"We confirm that we are now effecting the amendments as discussed and also confirm that we have our clients authority to initial those amendments.
We will forward to you copies together with the hard copy of this letter and attend to registration."
"In any event, we reserve our position as to whether your clients have complied with the terms of the Order in this regard."
"81. What I would really like now is for judgment to be entered against the Defendants without further delay. I am told by my solicitors the Court does have power to do this summarily in the light of the Defendants' further default.
82. If the Court decides a trial is necessary, I want it to go ahead as planned next month. On no account do I want the trial to be aborted for a third time."
"In the circumstances, I would request that the Court considers debarring the Defendants from defending for failing to fully comply with paragraph 1"
of the 15 March order. No notice of that application was then given to the defendants.
"Because the charges were not in due and appropriate form, they were not registered."
It is not clear why he said that. In this court it has remained in dispute whether the charges could have been registered in the form in which they were left on 6 April. As for why they were not registered, there is no satisfactory explanation.
"In my judgment, I would be clearly failing to carry out any proper case management of this case if I were to overlook these serious breaches of Morland J's order and to allow these defendants to continue to defend. They have had chance after chance after chance and they have simply flouted the orders of the court. Therefore I do not exercise my discretion to relieve these defendants from the penalty imposed by Morland J. in para.8 of the order of 15th March. They are debarred from defending. Furthermore, even to the extent that I have myself the power and right to impose a penalty on these defendants for failing to comply with the clear order restraining them from charging or dealing with the property, I would consider that the only appropriate way in which I could deal with this would be to debar them from defending. Therefore I would order that they are debarred under Morland J.'s order and that I would myself debar them for their breach of para.2 of the order of 15th March. In those circumstances, they are debarred."
"(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including -
(a) the interests of the administration of justice;
(b) whether the application for relief has been made promptly;
(c) whether the failure to comply was intentional;
(d) whether there is a good explanation for the failure;
(e) the extent to which the party in default has complied with other rules, practice directions and court orders and any relevant pre-action protocol;
(f) whether the failure to comply was caused by the party or his legal representative;
(g) whether the trial date or the likely date can still be met if relief is granted;
(h) the effect which the failure to comply had on each party; and
(i) the effect which the granting of relief would have on each party."
LORD JUSTICE ALDOUS: