[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bradford & Bingley Plc v Crichton & Anor [2002] EWCA Civ 1658 (4 November 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1658.html Cite as: [2002] EWCA Civ 1658

[New search] [Printable RTF version] [Help]

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Mr Justice Peter Smith)

		Royal Courts of Justice Strand London WC2 Monday 4 November 2002

1. LORD JUSTICE CHADWICK: This is an application for permission to appeal from an order made on 24 April 2002 by Mr Justice Peter Smith in proceedings brought by Bradford and Bingley plc against the applicant, Mr John Crichton and a Mrs Valerie Ferguson. Bradford and Bingley (formerly a building society) claims possession as mortgagee of property known as 95 Lambs Lane, Rainham, Essex. The proceedings for possession were commenced as long ago as 7 October 1994. An order for possession was made in the Romford County Court on 22 February 1995. That order required possession to be given within 28 days - that is to say, by 22 March 1995 - but, on an application by the defendants, the order was suspended while certain matters in dispute were investigated.
2. On 28 May 2001 the building society sought permission to enforce that order for possession. By that date Mrs Ferguson was no longer in occupation of the mortgaged property; but the applicant was living there. The society needed permission to issue a warrant of possession because more than six years had elapsed since the date of the possession order - see Order 26, rules 5 and 17 of the former County Court Rules, now found in Schedule 2 to the Civil Procedure Rules.
3. That application came before the deputy district judge in Romford on 9 October 2001. He granted the permission sought. The defendants appealed from his order to the county court judge. That appeal came before His Honour Judge Paynter Reece on 28 November 2001. Judge Paynter Reece dismissed the appeal. He also dismissed an application by Mrs Ferguson to suspend the warrant. But he did so on the conditions that the property should be sold on the open market at the best price obtainable by 28 March 2002 and that Mrs Ferguson's solicitor should have carriage of that sale until that date.
4. The matter came back before Judge Paynter Reece on 14 February 2002, on an application by Mr Crichton, the present applicant. The judge then stayed execution of the warrant of possession until 14 March 2002, on condition that Mr Crichton abide by an undertaking recorded in the order made on 14 February. The undertaking which Mr Crichton gave on 14 February 2002 was to permit estate agents instructed by Mrs Ferguson's solicitors to have access to the property at 95 Lambs Lane - so as to enable that property to be sold under the order of 28 November 2001 - and to allow prospective purchasers to view that property.
5. I have been provided with a note prepared by counsel for the building society (but not submitted to Judge Paynter Reece for approval) which explains why the order was made in that form. The judge is recorded as having said this:

"If I receive an undertaking from [Mr Crichton] to permit estates agents instructed by [Mrs Ferguson] to have access to the property to enable [it] to be sold in accordance with the order of 28 November 2001 and to permit prospective purchasers to view the property at all reasonable times, I think it is right to order the warrant to be suspended for 28 days [that is] to 14 March 2002. It will not prejudice the Claimant's right to recovery within a reasonable time."

6. It is clear that the judge took the view that there was no good reason to enforce the possession order against Mr Crichton until the property was actually about to be sold. But it is equally clear that he took the view that Mr Crichton ought to co-operate in the sale and that, as soon as contracts were about to be exchanged, possession must be given so as to enable the sale to take place.
7. Mr Crichton applied to the High Court for permission to appeal against the order of 14 February 2002. That application came before Mr Justice Peter Smith on 24 April. Mr Crichton appeared in person. The building society was represented by counsel. The order which the judge made on that occasion records further undertakings by Mr Crichton. They were in these terms:

1.Not to obstruct the sale of 95 Lambs Lane.

2.To sign all documents he was required to sign in connection with the sale by the building society or the solicitor for Mrs Ferguson within 4 days of their being presented to him.

3.To vacate the property immediately on exchange of contracts for its sale.

4.To preserve the property in its present state pending exchange of contracts.

8. The judge clearly expected there to be a sale in the reasonably near future; and was content that Mr Crichton remain where he was until the exchange of contracts had taken place, but only on condition that he was not obstructive.
9. On the basis of the undertakings to which I have just referred, the judge gave permission to appeal from the order of Judge Paynter Reece of 14 February 2002; and allowed the appeal to the extent of Mr Crichton giving those undertakings and complying with them. On that basis he suspended the warrant of possession that was then current until immediately prior to the exchange of contracts for the sale of the property. But paragraph (3) of the order was in these terms:

"that in the event that [Mr Crichton] fails to comply with any of his undertakings set out above, [the building society] do have permission to apply to the Romford County Court for an Order permitting the immediate enforcement of the Warrant for Possession."

10. He refused permission to appeal to this Court. The effect of section 55(1) of the Administration of Justice Act 1999 is that it would not have been within his power to grant permission for what would have been a second (if not a third) appeal to this Court.
11. I have been supplied with a copy of a note of the judgment delivered by Mr Justice Peter Smith, made by the building society's solicitors. The note is dated 8 October 2002. It appears from that note that, after setting out the history, the judge went on to say that Mr Crichton had expressed himself prepared to sign a consent order giving the undertakings to which I have referred and that, in those circumstances, the judge was prepared to allow the appeal to that extent. He recorded that Mr Crichton had at first expressed dissatisfaction with the order, but had told the judge that he was willing to sign, though reluctantly. The judge said this:

"If Mr Crichton had not been willing to consent to the proposed Order, I would have refused him permission to appeal the Order made on the 14th February. There is nothing to show that the Judge made a wrong order in principle. The Court can only allow Mr Crichton permission to appeal if principles have been misapplied or if the order was plainly wrong. They were not and it was not. I would have refused permission to appeal forthwith. Mr Crichton has already had one appeal, this is a second. If he goes to the Court of Appeal that will be a third stage and that is just prolonging the inevitable outcome."

12. The judge's comments, recorded in that paragraph, have not deterred Mr Crichton. He now seeks permission to appeal from the order of 24 April 2002.
13. It is clear from the history which I have set out that this is an application to which CPR 52.13 applies - that is to say, it is an application for permission to appeal to this Court from an order made in the High Court on an appeal to the High Court. Permission to appeal to this Court cannot be granted unless this Court considers that the appeal would raise an important point of principle or practice; or that there is some other compelling reason for the Court of Appeal to hear it. That is the statutory test. In his appellant's notice Mr Crichton does not recognise that test or make any attempt to meet it.
14. There are two main points which Mr Crichton seeks to make. The first is that he has been overcharged interest, or has been subjected to fines which the building society was not entitled to levy. The second is that Mrs Ferguson has no claim to the property at all and should not be on the mortgage or in these proceedings.
15. Mr Crichton tells me - and there is no reason to doubt - that he has obtained legal aid to bring proceedings against Mrs Ferguson. But those are not the proceedings that are before me. He also tells me that he has not taken steps to challenge the amount of the debt which the building society claim; or, more pertinently, to challenge the amount of the arrears of interest on which the building society relies - in the context of section 36 of the Administration of Justice Act 1970 - in support of the application for possession. That is the section which enables a court, in mortgagee's possession proceedings, to grant a stay or to suspend a warrant of possession if satisfied that the arrears will be paid off within a reasonable time. A challenge to the amount of arrears - or (more broadly) a challenge to the state of the mortgage account - is a matter which Mr Crichton could have raised in the county court if he thought he had material to support a challenge to the amount of the debt claimed; and if he thought he was in a position to persuade the county court that the arrears or the debt would be paid off within a reasonable time.
16. I express no view whether such a challenge is still open, having regard to the undertakings which Mr Crichton has given, nor whether he would be successful in such a challenge. What I do - and must - say, however, is that that is not a challenge that can be made to the consent order made by Mr Justice Peter Smith in April 2002. If Mr Crichton wishes to be released from the undertakings which he then gave to the court, he should go back to Mr Justice Peter Smith in the High Court and explain why circumstances have changed, so as to justify his release from the undertakings he has given. If he wishes to assert that there has been some change of circumstance which should lead the county court to exercise its power to suspend under section 36 of the 1970 Act, then he should go to the county court for that purpose.
17. The present application for permission to appeal to this Court is misconceived; and must be refused.
Order: application for permission to appeal dismissed.