Jonathan Harris Sinclair v Rodney Whiston-Dew & Anor
[2023] EWHC 657 (KB)
Alister Allan Coutts-Lovie v Topaz Finance Limited (t/a Heliodor Mortgages)
9 August 2024
[2024] EWHC 2079 (Ch)
High Court
A homeowner tried to get out of paying his mortgage by claiming he'd been overcharged. The court looked at his evidence and said it wasn't good enough. He'd already tried to make these same arguments before and agreed to a settlement, so the judge wouldn't let him try again. The homeowner's claim was dismissed.
Key Facts
- •Alister Coutts-Lovie (Claimant) brought a Part 8 claim against Topaz Finance Limited (Defendant) for an account, inquiry, declarations, payment of amounts due, and rectification of the Land Register.
- •The claim stemmed from a mortgage granted in 2006, subsequently held by various entities, ending with Topaz.
- •A possession order was made against the Claimant in 2016, and further orders against his wife in 2019, with subsequent appeals dismissed.
- •The Claimant argued that no money was due to Topaz, claiming the mortgage was discharged and money was owed to him due to overcharges and improper costs.
- •Topaz applied to strike out the claim as disclosing no reasonable grounds or as an abuse of process.
- •The Claimant relied on reports from forensic accountants alleging overcharges, but these reports were based on flawed premises.
Legal Principles
A claim for an account is a claim for a discretionary remedy, not a claim of right. There must be good reason for court intervention.
Case Law
The court has flexibility in deciding whether to direct an account, considering whether errors point to the likelihood of further errors or are 'one-off'. Proportionality is key.
Case Law and Nautch Ltd v Mortgage Express [2012] EWHC 4136 (Ch)
A mortgagee is entitled to recover costs incurred in recovering the mortgage debt or in legal proceedings, as per the mortgage agreement.
Case Law and Mortgage Agreement Clause 5.7 and 20
If a mortgage is not repaid on the term date and does not provide for post-term interest, equitable compensation or damages will be awarded.
Case Law
Settlement of prior proceedings can give rise to issue estoppel precluding the same issues from being raised again, even if not technically res judicata.
Case Law and Henderson v Henderson 3 Hare 100
Outcomes
Topaz's application to strike out the claim was granted.
The Claimant's claim that the mortgage was discharged or that he was owed money was unrealistic and lacked reasonable grounds. The evidence of overcharges was insufficient to warrant a full account.
The Claimant's claim for an account was also dismissed.
Even a narrower claim for an account lacked merit given the lack of evidence of significant errors in the account and the estoppel created by the previous settlement. The single admitted error was not sufficient to warrant a full account.