Ashcroft v Bradford & Bingley Plc
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Jacob,Lord Justice Patten |
| Judgment Date | 10 March 2010 |
| Neutral Citation | [2010] EWCA Civ 223 |
| Docket Number | Case No: B2/2009/1757 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 March 2010 |
[2010] EWCA Civ 223
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHEFFIELD COUNTY COURT
Mr Recorder Oldham
Before: Lord Justice Sedley
Lord Justice Jacob
and
Lord Justice Patten
Case No: B2/2009/1757
8HG05971
Mr Paul Lakin (instructed by hlw Commercial Lawyers) for the Appellant
Ms Naomi Candlin (instructed by Optima Legal) for the Respondent
Hearing date: Friday 19 February 2010
Lord Justice Sedley:
In 1990 the appellant bought a house in Sheffield for £95,000. In order to buy it he borrowed £85,500 from the respondent building society, secured by a mortgage on the property, which the building society had had valued at £90,000.
The appellant failed to repay a penny of interest or capital. The respondent consequently in April 1991 obtained a possession order, suspended on terms which the appellant once more failed to meet. So the building society in July 1992 sold the house, realising £57,500, which it set off against the outstanding debt.
It was not for another 3 years, however, that any attempt was made to enforce the debt, which – after set-off – stood at £48,340. The building society in October 1995 wrote to the appellant asking for his proposals for payment. The appellant responded with expressions of indignation at the time it had taken the building society to make the demand, but finally, after further angry correspondence, agreed and actually began in October 2000 to make regular payments of £10 a month. These petered out in 2004, with the debt reduced by £530.
In dilatoriness, however, the Bradford and Bingley proved Mr Ashcroft's equal. They failed to issue the present proceedings until August 2008. Mr Ashcroft then gratefully took the point that they were statute-barred. In the Sheffield County Court on 15 July 2009 Mr Recorder Oldham held that they were not, but gave Mr Ashcroft permission to appeal.
By s.20, the Limitation Act 1980 sets a time limit of 12 years on actions to recover mortgage loans, reckoned from “the date on which the right to receive the money accrued”. In the present case nothing turns on the choice of possible starting dates, since the claim was issued more than 12 years after the last of these, which was July 1992. By s.29(5), however, time starts running again from the date, if any, on which the debtor “acknowledges the claim or makes any payment in respect of it”. An effective acknowledgment is required by s.30 to be in writing and signed by the debtor.
Let me now go back to the point at which the appellant responded to the building society's demand that he start paying them what he owed them. He had an entirely understandable concern at the shortfall between the building society's own valuation in 1990 and the price they secured for the property only two years later, a shortfall of £32,500, well over one third. But on any possible view he still owed the building society money.
The recorder in his judgment ran in detail through the correspondence which had passed between the parties. By 1995 the appellant was represented by solicitors. The building society got him to complete an income and expenditure form and then went on writing to him as if he had not done so. He completed another one, and in August 1996 the correspondence went to sleep. It awoke in April 1999 with yet another demand for Mr Ashcroft to complete an income and expenditure form. Mr Ashcroft replied that he did not “under any circumstances identify with the said indebtedness”, which I take to mean that he still had no intention of paying.
Then in July 2000 new solicitors for the building society came on the scene. They demanded the completion of yet another income and expenditure form. On 20 July 2000 Mr Ashcroft completed and returned the form, indicating in the box marked “Offer of repayment” that he had no offer to make. But the building society's solicitors did not give up. By a letter of 11 September they offered to accept £10 a month, subject to review after 6 months. They repeated the offer by a letter of 3 November, threatening proceedings in lieu, and in December 2000 the appellant began making payments. He had already written in August to offer such payments, but reserving his rights and “without prejudice to my position”. Following further correspondence, in April 2001 Mr Ashcroft completed yet another income and expenditure form which this time affirmatively offered to repay at the rate I have mentioned. The building society's solicitors accepted, and for a little while, as I have recounted, payments continued to be made.
The correspondence continued thereafter, but its content matters only to the extent that it made clear the appellant's continuing concern at the very large shortfall on sale which was responsible for much of the debt, raising his game as time went on by alleging that it involved fraud.
So the question is whether in the latter part of 2000 – that is, less than...
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