Santander PLC v Harris (2024) EWHC 351 (KB)
A quick note on a sad case. This was an application by Mr Harris for an extension of time to appeal a mortgage possession order of his flat made in favour of Santander, his lender, with a money judgment for £195,308.64 in mortgage arrears. The possession order was in December 2021 so Mr Harris was seeking an extension of time of some 14 months.
It is apparent that Mr Harris had been in substantial dispute with his freeholder over service charges, administration charges and ground rent for quite some time, but very unsuccessfully. The freeholder had obtained a series of money judgments and followed each up with a section 146 notice, in 2015, 2016 and 2017.
Santander, threatened with the loss of its security had paid the sums demanded and added them to the mortgage debt. The payments were made without prejudice to Mr Harris right to dispute the validity of the charges. There were also increasing arrears on the mortgage payments.
In 2017, Santander brought the possession proceedings, which came to trial in 2020. The covid stay intervened and the judgment and possession order were in December 2021.
Mr Harris had disputed the arrears on the basis that Santander was neither entitled nor obligated to pay the freeholder/management company any money to preserve its security, and that the section 146 notices weren’t an actual threat to the security
This, unsurprisingly, did not go well. Not only were such payments authorised under the mortgage terms, but Santander could not be expected to carry out its own investigation and assessment of the supposed validity of the charges when there were money judgments and s.146 notices. Possession order made.
Mr Harris application for an extension of time to appeal was initially centred on what he said was new evidence that raised fraud on the part of the freeholder/management company. But he admitted that he had had this ‘new evidence’ in late 2021, before the judgment and possession order in this case.
In effect, the High Court found, he had simply prioritised other litigation (against the freeholder/management company, it appears) and not done anything about the Santander possession order until he received a warrant of eviction. This was no basis for an extension of time.
Comment
A further illustration, if one were needed, why the usual advice on disputing service charges is ‘pay them, then challenge them’. Being the defendant to a money claim is not a good position and can, as here, have deeply unpleasant consequences. It does not appear that Mr Harris had taken the payability or reasonableness of the disputed charges to the First Tier Tribunal. Payment by itself is not an admission that the charge is correct.
But also, deadlines for appeals are there to be taken seriously.