Mortgagor unsuccessful in his attempt to prevent a possession order being made but secured longer than the usual 28-day possession order.
Bank of Scotland plc v Hoskins [2023] EWHC 306 was a possession claim (with related applications) concerning a large Grade I listed country property near Tavistock, set in land of more than 240 acres. The property had been purchased in the defendant’s sole name in 2006. In September 2018 the defendant realised that he could not afford the circa £13,000 monthly mortgage repayments and agreed a payment holiday. At the end of that holiday the possession claim was issued and as of January 2023 the arrears were said to be in excess of £689,000 with the total amount required to pay in full being more than £3.4m.
The defendant had failed to file evidence as ordered. The judge was unimpressed. The principles set out in Denton v TH White Ltd [2014]1 WLR 3926 were applied and relief from sanctions was not given. The argument advanced that the refusal was impeded by Article 8 and Article 1 Protocol 1 of the European Convention on Human Rights was unsupported by authority.
A very late application to amend the defence was dismissed. The proposed amendment included a claim alleging an unfair relationship and seeking an order under section 140B of the Consumer Credit Act 1974 whereby the court could reduce or discharge sums payable. Although the assertion of unfair relationship reverses the evidential burden of proof this would only occur if permission to amend was given and the defence amended – until that point the burden of showing merit in the proposed defence rested with the defendant. The principles were set out in Quah v Goldman Sachs [2015]EWHC 759 (Comm). The application to amend was very late and without good excuse. The court was not satisfied that CCA would even apply in the circumstances of this case as at the time the mortgage was entered it appeared it was a regulated mortgage contract. In any event, the proposed amendment sought was not a defence to the possession but would sound in damages and could be commenced in a fresh action if the defendant wished to bring such a claim.
The defendant’s wife’s application to be added as a defendant was also given short shrift. The court was of the view that Mrs Hoskins had to demonstrate not just that her case was at least good enough to pass the threshold for a strike-out but would in fact resist an application for summary judgment. It failed to pass either test. The mortgage was an acquisition mortgage, and her rights were secondary to it. She had signed a postponement and there was nothing to put the lender on notice of any duress.
It had not been irrational for the mortgagee to refuse to allow the defendant to sell part of the land – subject to legislation, mortgagees are permitted to act in their own self-interest. The refusal would (in any event) at most sound in damages rather than being a defence to possession. There was no likelihood that the defendant would be able to pay the sums due within a reasonable time and accordingly there was no basis for adjourning the proceedings. A possession order was made but possession would not have to be given up until the Tuesday after Easter (54 days). In most cases of an ordinary house or flat 28 days would be appropriate but this was a large and complicated property which would take longer than usual to pack up and move.
Elizabeth Haggerty is a barrister
