It is wrong in principle to invite one court to adjudicate on issues currently before another and an application to the high court should not operate to cut across county court proceedings.
In Morgan v Business Mortgage Finance plc [2024] EWHC 309 (KB), the High Court rejected a mortgagor’s without notice application to suspend the execution of a county court warrant for possession due to take place the next day.
In county court proceedings the defendant had sought possession of the claimant’s longstanding Staffordshire family home. The original mortgage dated from September 2006 but it was in 2018 that the defendant appeared on the Land Register. The claimant’s position was that he wished to have clarity and confidence that the defendant was the entity that can legitimately collect the arrears and enforce the mortgage. As a result of the county court proceedings, a warrant for possession was due for execution in October 2022 but was suspended following the hearing of the claimant’s on notice application. A possession order was made on 21 June 2023. The defendant made an emergency application to set the possession order aside but despite being represented by counsel he was ultimately unsuccessful and a warrant was obtained by the defendant on 7 December 2023. That warrant was served on 25 January 2024 and was due to be executed at 11am on 15 February 2024. The claimant did not apply to the court to suspend the warrant, as he had done previously, but at 12.38pm on 14 February 2024, he sent an e-mail to King’s Bench Listing seeking an emergency injunction to suspend the eviction, pre-action disclosure seeking information relation to the mortgage loan and requested that the county court procedure be “voided”.
There was no evidence that the defendant had been advised of the application. The court was concerned that the defendant was not before the court and that the lack of notice and late stage of the application was procedurally unfair. Although the claimant expressed that he had lost confidence in the county court, it was the county court proceedings that were the proper forum to raise all his concerns regarding the propriety of the defendant’s entitlement to enforce the mortgage.
The claimant’s application was designed to cut across the county court proceedings but rights of challenge, including rights of appeal, are carefully designed to provide appropriate layers of procedural and substantive protection. There was no viable claim brought before the High Court arising out of the county court matters. None of the county court orders appeared to have been made contrary to law. Further the balance of justice and convenience was strongly and decisively against interfering with the execution process arising out of the county court proceedings. The claimant’s application was dismissed.
Elizabeth Haggerty is a barrister
