Order irregular but appeal had no real prospect of success

Where a defendant seeks to appeal a decision on the basis that it is unjust because of a serious procedural or other irregularity in the proceedings, the defendant must usually still show that they have a real prospect of success. In July 2018, Mortgage Express (the mortgagee) had obtained a possession order of 5 Rubin Place, Enfield EN3 6XG. There then followed various stays and adjournments, and in Mortgage Express v Ramsay [2023] EWHC 566 (KB), Mr Justice Freedman considered the mortgagor’s applications (the applications) for permission for an extension of time to file an appeal notice and for permission to appeal out of time in respect of an order of the county court made on 8 December 2021 (the order). The order had been made at a hearing conducted via Microsoft Teams which the mortgagor had not attended. It dismissed the mortgagor’s application for a stay pending eviction (the stay application), granted the mortgagee’s application for permission to transfer enforcement of possession to the High Court (the transfer application) and further made a declaration that the stay application was totally without merit. The mortgagor had wanted the hearing listed for 8 December 2021 to be adjourned. It had not come to his attention that the court had directed that it would in fact take place using Teams. Accordingly, on 8 December he actually attended Central London County Court, only to be told by a court employee that no hearing was taking place and consequently assumed that the matters would be heard on another day. A sealed copy of the order was not received by the mortgagee until 9 September 2022 and the court accepted that it did not come to the mortgagor’s attention until 26 November 2022, with him then promptly making the applications under consideration. In such circumstances, the appellate court was satisfied that an extension of time for filing the appeal notice should be granted. However, the mortgagor failed to obtain permission to appeal the order under CPR 52.21 (3), which allows permission to be given where an order was unjust because of a “serious procedural or other irregularity”. Although it might be different in a case of an irregularity involving bad faith (such as actual conflict on the part of the judge or misfeasance on the part of the tribunal), in the present case the mortgagor had to establish not just the irregularity but also a real prospect of success. There was no such prospect – the stay application was based on an argument that bailiffs had previously used the wrong form or that there was a breach of the Equality Act 2010 or European Convention on Human Rights, but any wrong form had not led to an eviction and was no longer being relied upon and there was no discrimination or breach of human rights. The transfer application was prompted by the mortgagee’s belief that the High Court would provide a more robust method of enforcement and had been an application properly granted. The only part of the order which there was a real prospect of successfully challenging was the declaration that the stay application had been totally without merit. The mortgagee was prepared to forego that part of the order, with the remaining of it standing. In light of the court’s powers to set aside orders made in the absence of a party, the judge expressed some concern that an appeal of the order had not been the appropriate way to challenge it. However, in the circumstances of this case, it made no practical difference. Elizabeth Haggerty is a barrister