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Enforcement

Warrants of possession and restitution

Exclusive jurisdiction of the county court – whether mortgage had to satisfy s 2 of the 1989 Act

Platform Funding Limited v Easeman (unrep)
Briggs J, Chancery Division, Liverpool District Registry
26 February 2012

Summary

A lender is entitled to bring a trespass claim in the High Court against persons unknown who have re-entered the mortgaged property following execution of a warrant of possession. There was no merit in an appeal against an order refusing to set aside the order for possession on the ground that the lender did not have a contract of mortgage sufficient to satisfy s 2 Law of Property (Miscellaneous Provisions) Act 1989. The High Court did not have jurisdiction to transfer county court possession proceedings to the High Court.

Facts

The borrower defaulted in repayment of his residential home loan mortgage. The lender commenced possession proceedings in the county court, and obtained an order for possession that it executed with a warrant of possession. The borrower and others re-entered the property on several occasions and the lender had to obtain warrants of restitution, which it executed with the bailiffs and police, meeting considerable resistance on each occasion. The borrower and others re-entered again.

The lender then commenced proceedings for possession in the High Court against the others, relying on CPR PD 55A para 1.3(3) (claim against trespassers where there is a substantial risk of public disturbance or of serious harm to persons or property), and applied to transfer the county court possession proceedings to the High Court to be consolidated in one claim with a view to obtaining one further order for possession which it could execute using High Court enforcement officers.

The borrower in the meantime lodged numerous applications and appeals, each of which had been dismissed as being totally without merit, and which had led to the making of a limited civil restraint order. One of the main points he pursued was that there was no contract of mortgage in writing signed by both lender and borrower sufficient to satisfy the requirements of s2 Law of Property (Miscellaneous Provisions) Act 1989, so that the mortgage was void and the order for possession should be set aside. This had been dismissed by the designated civil judge and the borrower sought to appeal.

The claim for possession and the application to transfer the county court possession proceedings was listed before Briggs J (who had jurisdiction in both the High Court and county court). The borrower applied in the face of the court for a stay of proceedings pending his appeal on the s 2 point.

Held

1. Application for stay dismissed. There was no merit in the s 2 point. The lender had the benefit of a completed mortgage deed which only had to satisfy the requirements of s 53(1)(a) Law of Property Act 1925 (signed by the mortgagee). There were three Court of Appeal authorities on point: Eagle Star Insurance Co v Green [2001] EWCA Civ 1389; McLaughlin v Duffill [2010] Ch 1; Helden v Strathmore Ltd [2011] EWCA Civ 542.

2. On the facts, the lender was entitled to bring a claim for possession against trespassers in the High Court. The court gave directions.

3. However, there was no jurisdiction to transfer the county court possession proceedings to the High Court. The county court had exclusive jurisdiction under s 21(3) County Courts Act 1984. There was authority that the county court had no jurisdiction to transfer to the High Court under s 42 County Courts Act 1984 (Yorkshire Bank Plc v Hall [1999] 1 WLR 1713) and the judge considered that the High Court did not have power either, under s 41 County Courts Act 1984. The county court had exclusive jurisdiction to “hear and determine” any action for the recovery of land. Although it was argued that this did not extend to subsequent enforcement action, the judge noted that the High Court only had power to transfer proceedings so that they could be “heard and determined” in the High Court under s 42 County Courts Act 1984.


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