Santander (UK) Plc v Carlin & Anor [2013] NICh 14
We have seen Santander having trouble in mortgage possession proceedings in Northern Ireland recently. Here is another example which could perhaps, indeed maybe should, have been avoided, if the lender had actually taken proceedings sufficiently seriously.
Mr Carlin was appealing a possession order obtained by Santander on arrears on the mortgage on his property. Mr Carlin sought to appeal on the basis that Santander had assigned the equitable interest in the charge and so could not enforce it. This is, as the NI High Court makes clear here, both a popular challenge for litigants in person and on the whole, a completely hopeless one.
It is clear law, as has been recently reaffirmed by the Court of Appeal in England in Paragon Finance v Pender and Another [2005] 1 W. L. R. 3412 that a legal owner of a charge can part with the equitable interest in it without losing their right to enforce the charge. Therefore, this point in many cases is likely to prove a short-term gain for any borrower because it is simply a matter of the right person establishing that they are entitled to assert what had been agreed between the parties under the mortgage would happen in default of the payments agreed. Nevertheless, it is essential that the court is making an order in favour of the correct party who has the right to enforce a legal charge, as much as any other contract between parties.
However, in the first instance court, Santander had filed an affidavit made by their solicitor, reporting what she had been told about the mortgage, specifically that it had not been assigned. Mr C tried to take a point about hearsay evidence of debts, but was relying on a Dublin judgment where there was no Civil Evidence Order on hearsay evidence, so that went nowhere.
The trouble was that the mortgage had been assigned. This part of the affidavit was simply wrong. The order in the Court below had been “improperly obtained by a misrepresentation to the Court”. There was no suggestion that the solicitor had lied, but Mr C asserted and indeed the High Court wondered whether someone, who passed information to the solicitor had done so.
So, faced with this situation, an appeal and a clear misrepresentation in their affidavit in the Court below, what did Santander do?
Well, they started by ignoring directions on filing evidence, only filing a rejoinder affidavit 2 days before the hearing.
As if that wasn’t bad enough, Santander didn’t actually bother to get the person who had actually passed the information to the solicitor to file that affidavit. They got the solicitor to file another one.
Referring to Swift Advances plc v James and Maureen McCourt [2012] NI Ch. 33, the Court found:
The judge, and as I have already previously said in this court, wisely in my view, commended the course that the solicitor acting for the financial institution should expressly warn the proposed deponent on behalf of the financial institution of the serious consequences he or she bears personally and the consequences for his or her employer if he or she swears an affidavit that is false in any respect. Next, their solicitor should confirm to the court that the deponent has been so advised before the affidavit is sworn. Thirdly, the deponent on behalf of the financial institution should then swear the affidavit dealing with the plaintiff’s title to seek an order for possession. It is only if some uncertainty is left then that one should go on to deal with applications for specific discovery. So it can be seen here that Santander have further disregarded the decisions of this court because they have not deigned to swear the affidavit themselves but have required Miss Gibson to do it. Now the matter that is set out therein may or may not be right but it seems to me as it contradicts the earlier information on affidavit as it was given to the Master that Mr Carlin is entitled to cross-examine this lady as to whether it is true and perhaps is entitled to further discovery.
And to cap it all, the rejoinder affidavit didn’t actually deal with the circumstances of the earlier ‘error’. So:
Now the court of course recognises that everybody makes errors. They should not make them on affidavits, but at this point I do not know whether this was an honest error, I do not know whether somebody was playing fast and loose with the truth. No explanation of the earlier misstatement is given in the new affidavit. What is certainly the case is that Santander have been in breach of the directions of the court, they have been in breach of the judgment of Swift v McCourt and they obtained an order by at least, as I said earlier, misrepresenting the facts to the Master.
Appeal succeeded and possession order set aside.