Property – Mortgage – Defendant defaulting on repayments – Claimant obtaining and executing warrant for possession – County court setting aside execution of warrant – Whether execution capable of amounting to oppression or manifest unfairness – Appeal allowed
In 2003, the respondent purchased a flat with the assistance of a mortgage. He fell into arrears and the appellant mortgage provider launched possession proceedings. On 6 December 2004, the district judge ordered possession of the property within 28 days, suspended on payment of the current monthly instalment together with £10 per month towards the arrears. The first payment was due on 30 December 2004 and £65 a month was to be paid towards the arrears from 30 June 2005. A money judgment for the arrears was also made, suspended on the same terms.
The respondent again fell into arrears and the appellant applied for a warrant for possession. There followed a series of promises, bounced cheques, further warrants and applications to suspend. These culminated in a warrant for possession dated 16 November 2005, when a bailiff’s appointment was set for 12.20pm on 30 January 2006. Three days before the appointment, on a Friday, the respondent applied to suspend the execution of the warrant. However, the matter was not heard until approximately one-and-a-half hours before the bailiff’s appointment. A district judge dismissed the application but observed that the appellant would not enforce the warrant if the respondent could show that he had paid the sums due.
The respondent tried to arrange for moneys to be transferred into his bank account and was assured by the bank manager that the funds would be cleared in time. However, they were not and the warrant for possession was executed. The respondent applied successfully to set aside the execution. The appellant was then granted permission to appeal solely on the question of whether the circumstances could amount to oppression or manifest unfairness sufficient to justify setting aside the eviction.
Held: The appeal was allowed.
The court would not set aside an execution in the absence of abuse of process or oppression, as defined in terms of manifest unfairness, namely unfairness that was obvious or not concealed. Oppression could not arise without the unfair use of the court’s process, and something more than the mere use of the eviction process was required to qualify as abuse. Moreover, a possession warrant obtained and executed without fault on anyone’s part could not properly be set aside as oppressive: Jephson Homes Housing Association v Moisejev [2001] 3 EGLR 14; [2001] 41 EG 186 and Southwark London Borough Council v Sarfo (1999) 32 HLR 602 considered.
In the present case, it would be unfair to say that the appellant had misled or obstructed the respondent in the exercise of any rights. It had been made clear to him and everyone had proceeded on the basis that he had to get the cleared funds to the appellant by 12.20pm, to ensure that the eviction would not proceed.
Furthermore, it was unrealistic to exclude the history of the matter in judging whether it would have been reasonable to accept a bare promise of funds, in the absence of cleared funds. Accordingly, considering the entire background, it was unfair to describe the position as an abuse of the eviction process or as oppression or unfairness.
Steven Woolf and Michael Wheater (instructed by Optima Legal, of Bradford) appeared for the appellant; Ian Mason (instructed by M Olubi) appeared for the respondent.
Eileen O’Grady, barrister
