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Wrong in principle


Morgan v Business Mortgage Finance 5 Plc (2024) EWHC 309 (KB)

Another one for the ‘don’t do this’ pile.

This was a High Court hearing of an ex parte application for an ’emergency injunction’ to stay an eviction (amongst other things).

Mr Morgan was defending possession proceedings in the County Court by BMF 5 Plc, who held a mortgage on his home. There had apparently been an application to stay a warrant  of possession in October 2022. There was then a possession order made in June 2023 (no, I don’t understand either, and suspect we will never know), followed by Mr Morgan’s application to set aside the possession order in September 2023. That was heard in December 2023, when Mr Morgan was represented by counsel. Mr Morgan lost, and a warrant of possession was served on 25 January 2024, with an eviction date for 15 February. Mr Morgan had solicitors acting for him throughout.

Now, assuming that there were any grounds at all, there is really only one option to challenge the possession order and warrant, which would be an appeal of the December 2023 order. However, that is not the route Mr Morgan selected.

Instead, there was this ex parte injunction application to the High Court by Mr Morgan acting in person. He sought, variously:

  • ‘Pre-action disclosure’ relating to events in 2018 that saw BMF 5 get an entry on title for the property, and for any documents relating to Mr Morgan’s contractual or legal liability to pay the mortgage sums to BMF 5.
  • An order that the county court claim was ‘voided’, and
  • A stay on the warrant “until such time as the source of funds has been proven and BMF 5’s claim proven”

As the High Court found, on the limited papers before it, there were a number of difficulties with this,

The ‘pre-action’ disclosure amounted to the same materials that Mr Morgan had sought in his September 2023 application, which had been refused. He had also raised the issues in 2022 in the county court proceedings, as he admitted.

There was precisely zero evidence of any attempt to bring this application to the attention of BMF 5 or their solicitors. Mr M stil had solicitors on the record in the County Court proceedings who could have done this.

Courts will always be concerned, when they hear “without notice” applications, about what has been done, what could have been done and what should have been done to notify the other party. Especially when the Order that is being sought is one taking immediate effect. I am unable to be satisfied that this application has been approached in a procedurally fair way.

And then there was the fundamental problem that the High Court was being asked to intervene in live county court proceedings.

The county court proceedings provided the forum for all of those matters to be raised. I have no doubt that they could be, and were, raised including in the December hearing where Counsel appeared on behalf of Mr Morgan. I have already referred to the fact that the September 2023 witness statement, prepared with the assistance of lawyers, raised the very points that have been raised with me today. I have no doubt that Mr Morgan’s solicitors and barrister were a position to assist him to understand the rights that he had to challenge matters in the county court. What in the event has happened as Mr Morgan candidly told me at today’s hearing is that he has “lost confidence in” the county court; and that, rather than make an application to seek to suspend again a warrant for possession, he has sought to come to this Court as ‘the highest court in the land’, as he put it.

Whatever Mr Morgan meant in his application about his “understanding” that it would be “wrong in principle” to invite “one court to adjudicate on issues currently before another”, having been denied full disclosure by that court, I am quite satisfied that that is an apt description of what I am today being asked to do; and that it is indeed wrong in principle to seek to use the High Court in that way. Rights of challenge, including rights of appeal, are carefully designed to provide appropriate layers of procedural and substantive protection. This application, designed as “pre-claim disclosure” together with other orders, in my judgment, clearly operates to cut across the county court proceedings.

Application unsurprisingly dismissed.


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.


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