Catherine Waller-Edwards v One Savings Bank PLC
[2023] EWHC 2386 (Ch)
Bank of Scotland Plc v Peter Lisney Hoskins & Anor
16 February 2023
[2023] EWHC 306 (Ch)
High Court
A bank wanted its house back because the owner owed a lot of money. The owner tried to delay things, but the judge said the bank could have the house. The owner's wife also tried to claim a share, but the judge said she couldn't because of existing mortgage laws.
Key Facts
- •Bank of Scotland (Claimant) sought possession of a property solely owned by Peter Lisney Hoskins (Defendant).
- •The mortgage was granted in 2006, with significant arrears accruing.
- •Jemima Jane Hoskins (Proposed Second Defendant) sought to be added as a defendant, claiming an equitable interest in the property and alleging undue influence by her husband.
- •The Defendant applied for relief from sanctions for late filing of evidence and permission to amend his defence.
- •The property is a large, Grade I listed country property with significant value.
Legal Principles
CPR Part 55 governs possession claims.
CPR Part 55
CPR rule 17.1(2)(b) and 20.4(2)(b) govern amendments to statements of case and counterclaims.
CPR rule 17.1(2)(b), 20.4(2)(b)
Principles for permission to amend are outlined in Quah v Goldman Sachs International [2015] EWHC 759 (Comm) and PJSC Tatneft v Bogolyubov [2020] EWHC 623 (Comm).
Quah v Goldman Sachs International [2015] EWHC 759 (Comm), PJSC Tatneft v Bogolyubov [2020] EWHC 623 (Comm)
CPR rule 19.2(2)(b) governs adding a new party.
CPR rule 19.2(2)(b)
The test for joinder is whether the new party's case would survive a strike-out application under CPR rule 3.4, or even summary judgment under CPR Part 24.
CPR rule 3.4, CPR Part 24
Abbey National Building Society v Cann [1991] 1 AC 56 establishes that a purchaser using an acquisition mortgage only acquires an equity of redemption, subordinate to the mortgage.
Abbey National Building Society v Cann [1991] 1 AC 56
Section 36 of the Administration of Justice Act 1970 allows courts to adjourn proceedings or stay execution of a possession order if the mortgagor is likely to repay within a reasonable period.
Section 36, Administration of Justice Act 1970
CPR rule 3.9 governs relief from sanctions for non-compliance.
CPR rule 3.9
The Denton criteria are used to assess relief from sanctions: seriousness of failure, explanation for failure, and whether justice requires relief.
Denton v TH White Ltd [2014] 1 WLR 3926
Mortgagees are generally entitled to act in their own interests.
Silven Properties Ltd v Royal Bank of Scotland plc [2004] 1 WLR 997
Articles 8 and 1 of Protocol 1 of the ECHR protect the right to respect for home and peaceful enjoyment of possessions, but these rights are not absolute and are subject to limitations.
Article 8 and Protocol 1, Article 1, ECHR
The Brocklesby principle (from Brocklesby v Temperance Permanent BS [1895] AC 17) concerns estoppel where a beneficial owner allows another to represent themselves as the full owner.
Wishart v Credit & Mercantile plc [2015] EWCA Civ 655
In considering section 36 of the Administration of Justice Act 1970, the starting point for a reasonable period is generally the remaining term of the mortgage.
Cheltenham and Gloucester Building Society v Norgan [1996] 1 WLR 143
Outcomes
Defendant's application for relief from sanctions dismissed.
Serious failure to file evidence on time with no good explanation; not in the interests of justice.
Defendant's application to amend his defence refused.
Very late application, no good reason for delay, proposed amendments lacked merit and did not constitute a defence to possession claim.
Mrs. Hoskins' application to be joined as a second defendant dismissed.
Even if she had an equitable interest, it was subordinate to the claimant's mortgage under Cann principles; no constructive notice of undue influence; her claim lacked merit under either strike-out or summary judgment test.
Possession order granted to the claimant.
Defendant's defences under section 36 of the Administration of Justice Act 1970 and the claim of irrational refusal to consent to a partial sale failed.