Time is on my side (except in mortgage possession proceedings)*

Jayashankar v Lloyds TSB, Romford County Court, June 29, 2011.

A short – and important – point on mortgage possession proceedings. It appears that Mr Jayashankar had a mortgage over his property in favour of Lloyds TSB. He fell into arrears (about £14K at the time of the hearing), a possession order was made and, in due course, Lloyds issued a warrant. Mr Jayashankar applied to suspend the warrant (see ss 36 and 8, Administration of Justice Act 1970 and 1973), but the DDJ dismissed the application on the basis that he was not satisfied that Mr Jayashankar could pay the arrears within a reasonable period of time.

The warrant was executed and, after execution, Mr Jayashankar applied for permission to appeal on the basis that he now had additional evidence which, he said, showed he could pay the arrears within a reasonable period.

HHJ Platt noted that Cheltenham & Gloucester BS v Obi (1996) 28 HLR 22 was authority for the proposition that no power existed to stay or suspend under ss.36 and 8 once the warrant had been executed. On the face of it, this is a significant hurdle. However, Mr Jayashankar had a cunning argument to get around this. CPR 52.10 provides that the appeal court has all the powers of the lower court. So, since the lower court could have suspended the warrant, it must follow that the appeal court could.

HHJ Platt was not persuaded. Legal certainty favoured following the approach in Obi. In any event, CPR 52.10 was expressed to be subject to any other enactment (CPR 52.1). Sections 36 and 8 were such enactments. Permission to appeal granted, but appeal dismissed.

The Judge noted that this was not an entirely straight-foward question and (politely) suggested that the Court of Appeal might want to have a look at it at some stage. He also left open whether he might have come to a different view if the appeal had been lodged before the warrant was executed.

*as the Rolling Stones didn’t say.

 

About J

J is a barrister in London. He loves service charges and all things leasehold law related. He also likes beating rogue landlords and mortgage companies.
Posted in Housing law - All, Mortgage possession.

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