IKeji v Bank of Scotland plc [2021] EWHC 797 (QB) is a cautionary tale for mortgagees as it illustrates quite how difficult it can be to enforce a possession order when faced with an indefatigable and, at times, guileful mortgagor.
Mr Ikeji (the mortgagor) had purchased Torrens, Shenton Gate, Gorse Lane, Cobham, Surrey GU24 8RU (the property) in 2006 with the help of a mortgage from Birmingham Midshires (a trading name of the respondent, the bank). He defaulted in his mortgage payments and the bank obtained a possession order on 13 November 2009.
On 26 September 2018, by consent, the possession order was suspended on terms. In that order (the consent order) it was provided that the bank could issue a warrant forthwith if the mortgagor failed to comply with the terms of the consent order. The mortgagor did fail to comply with the terms of the consent order and on 12 February 2019 the bank issued a warrant for possession.
When the bank attempted to enforce that warrant it was met with multiple applications to stay or suspend it. There were also appeals of refusals and applications to the High Court. By way of example, on 26 March 2019 (being the day that the warrant was due to be executed) the mortgagor’s appeal of a district judge’s refusal to stay the warrant came before Her Honour Judge Raeside. The mortgagor was unrepresented and refused to come into court, asserting to the usher that he was being unfairly treated and that he would seek a judicial review. When the appeal was heard, the mortgagor had left the court and the HHJ Raeside dismissed his appeal at 11.16 am. At that time, two bailiffs were waiting at the property and began changing the five locks.
The mortgagor instructed counsel and (on that same day) went before Stewart J requesting that the warrant for possession be stayed or suspended. It was subsequently suggested (by counsel) that the hearing took place sometime between 11 am and noon but the court file showed that the hearing took place between 4.12 pm and 4.50 pm, with the order purporting to stay or suspend the warrant being made at 4.50 pm.
The reason that the timing of the order was important is that, following the authority of Kingsdale v Mann 6 Mod 27, Salk 321, for a warrant of possession/restitution “it is not complete execution until the sheriff, or his bailiffs, deliver the possession to the party, and are gone away”. Accordingly, had the warrant already been executed then Stewart J’s order would have been of no effect, but had the order been made prior to execution then the eviction would have been improper.
It was ultimately deduced that the warrant for possession had been executed prior to Stewart J’s order. Practitioners will note that this would have been simpler had evidence of when the bailiffs left the property been recorded and been before the court.
In any event, notwithstanding the changing of the locks, on 26 March 2019 the mortgagor re-entered the property. The bank therefore obtained a warrant of restitution. The enforcement of this warrant was also met with repeated applications and appeals. These included urgent applications to the High Court in which the mortgagor failed to appraise the presiding judge of the status of the various applications in the county court.
The same pattern continued when the bank eventually sought to sell the property. The mortgagor alleged that the property was being sold at an undervalue, made fresh applications to the court, sought an injunction and obtained an interim injunction.
Ultimately, following a hearing on 26 March 2021, the mortgagor’s applications were dismissed, the interim injunction discharged and his injunction application found to be wholly without merit. However, the bank had had to go to not insignificant trouble, including obtaining valuation evidence from five individuals.
Elizabeth Haggerty, barrister
