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By J
14/11/2009

Stick, twist or fo(u)ld?

Abbey National v Miller [2006] EWCA Civ 1520; [2007] EWCA Civ 138

Miller-Foulds v Secretary of State for Constitutional Affairs [2008] EWHC 3443 (Ch); [2009] EWCA Civ 1132

You’d be forgiven for not having noticed any of this (long running) litigation over the last 3 years (if only because you need both Casetrack and Lawtel in order to find all four judgments, none of which seem to be on Bailii). On one view, this is just another mortgage possession case but – at least to me – there is quite a bit more in here.

Mrs Miller-Foulds was (and may still be for all I know) the freehold owner of a residential property in Middlesex. She purchased the same in 1986 with the benefit of a mortgage from Abbey National. By 1991 it appears that she had fallen into arrears on her mortgage. In November 1991, the bank obtained an SPO and – apparently – it recorded that the arrears were just over £7,000. I say “apparently” because Mrs Miller-Foulds disputed that such a sum was ever recorded as being the arrears. The original possession order had been lost/destroyed due to the passage of time. All that remained was a record-card of the hearing.

The bank applied – unsuccessfully – to lift the suspension on the possession order in 1995, 2002 and 2003. It sought to rely on the arrears figure allegedly stated on the 1991 order. Mrs Miller-Foulds denied that any such figure had been stated (so far as we can tell, it appears that both parties argued that the other was estopped from asserting/denying [delete as appropriate] the existence and level of the arrears).

In December 2005, HHJ Edwards sought to resolve this conundrum and declared that the arrears were c.£13,000. Mrs Miller-Foulds appealed to Langley J where she raised a new argument to the effect that the record card retained by the county court was insufficient to prove that a possession order had been made and that any arrears figure had been specified in that it did not meet the requirements of  s.12, County Courts Act 1984 and the SI made thereunder. These impose an obligation on the DJ to inter alia keep a minute of the order made.

Rix LJ ([2006] EWCA Civ 1520) granted permission to bring a second appeal on whether the record card complied with the requirements of s.12 and, if it did not, what effect that had on the ability of the bank to prove the 1991 order.

The Court of Appeal dismissed the appeal ([2007] EWCA Civ 138). The parties had proceeded for some 16 years on the basis that an order had been made and it was only in the appeal to Langley J that any argument to the contrary had been raised. It was far too late to raise such matters now.

Mrs Miller-Foulds then issued proceedings against the Secretary of State for Constitutional Affairs ([2008] EWHC 3443 (Ch)). She sought various declarations to the effect that the 1991 order could not be proved to exist or have any effect. The Secretary of State was said to be at fault for not ensuring that proper records were kept.

HHJ Pelling QC was not impressed by these proceedings. He was surprised (to put it mildly) that Abbey National were not named as a party to the proceedings, since that would have been the only way of ensuring that any declaration was binding on them. The Judge heard evidence about the practice in Brentford county court as to the practice in 1991 and concluded that there had been no breach of s.12, County Courts Act 1984. Even if that were wrong, there was no reason in law why the existence and terms of of an order could not be proved by secondary evidence if, as here, the original order had been lost.

Mrs Miller-Foulds sought permission to appeal to the Court of Appeal ([2009] EWCA Civ 1132). Permission was refused on the papers by Rimer LJ and an oral application was refused by Lloyd LJ. The proceedings were misconceived. At the least, the bank needed to have been named as a defendant and the failure to do so made it difficult to see the purpose of the proceedings. In any event, HHJ Pelling QC had been correct in his earlier judgment.

Phew. And thus ends this case. It isn’t uncommon in possession cases for orders to have been made many years ago and for the original order to have been lost / destroyed. Although the facts and history are odd, there is some useful material in HHJ Pelling QC’s judgment which may be of wider relevance in such cases.

J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.

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