Who got the dogs out?

Moosun, & Ors v HSBC Bank Plc (t/a First Direct) [2015] EWHC 3308 (Ch)

This was a part – surely now the end part – of a long running saga of a mortgage possession and sale. The novel (if unsurprising) point of law concerned the ‘Ors’ in this claim. You will have to read on – or skip to the end of the post, for that.

To cut a very long story relatively short, in 2008 Ms Moosun bought a property for £385,000, with a mortgage from HSBC, described as a cottage. In September 2008, South Bucks District Council issued an enforcement notice against Mrs. Moosun because of unauthorised developments at the property. There had been an unauthorised extension to the cottage. An appeal of the enforcement notice was rejected in 2009 and a judicial review of that decision failed (in 2013). Meanwhile, in 2009 the bank (understandably) got nervous about its security and considered there was a breach of mortgage conditions. The mortgage was an offset mortgage, under the terms of which the bank could, and did, take funds from Ms M’s bank account. Ms M’s dispute of this was rejected by the Financial Ombudsman. The bank then took possession proceedings for arrears.

Then things went all a bit, well, pending civil restraint order. Ms M sought to set aside the possession order and lost. She sought permission to appeal that order, partly alleging a conspiracy by ‘satanic freemasons’, and lost. She tried to judicially review the refusal of permission, and lost – totally without merit.

The bank obtained a warrant in 2013. Ms M applied to stay the warrant and quash previous orders. She lost – totally without merit. Ms M applied for permission to appeal. Dismissed. Ms M then sought again to stay the warrant, in the High Court – held, no jurisdiction. Ms M renewed, orally. claiming breach of Art 6 because she hadn’t attended the original possession hearing. She then didn’t attend the oral hearing. Permission refused – totally without merit.

Ms M then again applied to the High Court to stay the warrant and set aside previous orders. Again alleging an Art 6 breach. Permission was refused in July 2014 by a Judge who had requested and seen the entire court files on previous proceedings. Certified totally without merit.

In October 2014, a District Judge made a limited civil restraint order against Ms M in relation to the possession proceedings. Ms M sought to appeal to the High Court – refused as totally without merit. She then applied again to the High Court to set aside the restraint order and stay the warrant and twice to the County Court to stay the warrant, all dismissed as totally without merit.

Finally, in January 2015, the bank obtained possession. A without notice injunction application to prevent sale by Ms M failed as breach of the limited CRO and totally without merit. The bank arranged a sale by auction in August 2015. Ms M applied to the High Court to stop the sale and set aside the possession order. Dismissed – totally without merit.

As if this wasn’t breathlessly desperate enough, a sale at auction didn’t stop Ms M. She applied to stay the sale on the basis that the price at auction, £285,000, was below the proper price of up to £1.3 million. The trouble was the latter valuation was based upon an assumption that the property was, as described a five bedroom house, whereas it was:

in reality a property against which there was an extant enforcement notice which required a substantial part of the property to be demolished, no doubt at considerable expense

And Ms M had no evidence that she could pay off the debt – application totally with without merit.

Ms M then issued two proceedings against the bank, the bank’s solicitors, and (in separate proceedings) the purchaser’s solicitors. The proceedings against the bank were issued in the name of Ms M, her (underage) children and Goldie, aged 18 months, and Diamond, aged 2 years, for £3.75 million and £5.5 million.

You can no doubt see where this is headed… The bank brought an application to strike out and for a general civil restraint order.

Now the claim by the children was simply disposed of – Ms M was not their litigation friend, so they could not bring a claim. The comes the truly immortal paragraph in relation to Goldie and Diamond, who are Ms M’s dogs:

Miss Wilmot-Smith (for the bank) also makes the obvious point that dogs are not capable of bringing legal proceedings. Among other things, CPR Part 2.3(1) defines “claimant” as a person who makes a claim, and a dog is not a person. I also cannot see how a dog could give instructions for a claim to be brought on its behalf or be liable for any orders made against it. There are a whole host of other reasons why proceedings by dogs must be void, and accordingly I am satisfied that in so far as the claim purports to be made on behalf of the two dogs it should also be struck out.

The rest of the claim was struck out for want of particulars and a General Civil Restraint Order made against Ms M.

In these circumstances it seems to me that Mrs. Moosun is one of those very rare litigants for whom an extended civil restraint order would not be sufficient or appropriate, and that it is necessary to make a general civil restraint order against her. I think it would be impossible to construct an extended civil restraint order in a form which would be clearly capable of catching whatever new proceedings that Mrs. Moosun may dream up. The very fact that she is prepared to make unparticularised and wide-ranging allegations of a conspiracy against her by the judges who have been involved in dealing with her and the professionals involved in the sale of her house indicates to me that, unless a restraint is made in general form, it is likely that she will try to find ways of evading the restraint. I also do not think that she should be given any encouragement to evade the restrictions of an extended civil restraint order in the way that she ignored or evaded the limited civil restraint order previously made against her in the County Court.

So, apart from years of fruitless, meritless proceedings against the bank, Ms M has the merit of having finally established in binding English law that dogs cannot bring a claim. If you ever need a precedent on this point, here it is.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Housing law - All, Mortgage possession and tagged , .

2 Comments

  1. Pingback: Who got the dogs out? – Nearly Legal | Current Awareness

  2. Particularly ruff justice against Goldie and Diamond, I’d say. But I suppose every dog has his day (in court).

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