Bank of Scotland Plc v John Thomas Waugh and Others
| Jurisdiction | England & Wales |
| Judge | Judge Behrens |
| Judgment Date | 21 July 2014 |
| Neutral Citation | [2014] EWHC 2835 (Ch) |
| Date | 21 July 2014 |
| Court | Chancery Division |
| Docket Number | Case No: 3NE30105 |
[2014] EWHC 2835 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
LEEDS COMBINED COURT CENTRE
The Courthouse
1 Oxford Row
Leeds
LS1 3BG
His Honour Judge Behrens sitting as a Judge of the High Court
Case No: 3NE30105
Mr Ian Wilson (instructed by Shepherd and Wedderburn LLP) appeared on behalf of the Applicant
Mr Waugh appeared as a Litigant in Person
Approved Judgment (No 2)
Introduction
There are before me two applications. One is an application by Mr Waugh, which in effect invites me to revisit various parts of the judgment I have handed down earlier this morning. The other is an application by the Bank for orders
(a) for permission to amend the Particulars of Claim to plead that Mr and Mrs Waugh are obliged under the terms of the Charge to perfect the instrument by executing it as a deed,
(b) for an order (by way of specific performance) requiring them to do so, and
(c) in default, for an order under section 39 of the Senior Courts Act 1981 that the Charge be validly executed as a deed by a District Judge of the Chancery Division
Mr Waugh's application
There may be a technical point in that I formally handed down the judgment earlier this morning and it may be arguable, that that formal handing down makes it too late for me to reconsider it. However, Mr Waugh's application was before me prior to my handing down the judgment. In those circumstances it would be unfair to Mr Waugh simply to dismiss his application on the grounds that I have formally handed down the judgment earlier this morning. I have to confess that I had not appreciated the extent to which Mr Waugh was wishing to invite me to reconsider the matters that were in my judgment. If I had appreciated that I certainly would have dealt with it before formally handing down the judgment. Therefore, as I say, I think it right to consider whether I ought to reconsider any aspects of my judgment.
The Power to reconsider
There is an acknowledged power of the court to reconsider a judgment at any time before it is handed down. It is a power which is to be exercised extremely sparingly, but it exists. The reason it is to be exercised sparingly is to prevent matters that have already been argued being argued again or to prevent parties who have afterthoughts from raising them, but on the other hand there are circumstances where it is appropriate and the judge always has a discretion to consider the points that have been raised.
Thus in Robinson v Fernsby [2003] EWCA Civ 1820 May LJ said at paragraphs 91 and 94:
If a judgment has not been handed down or delivered, it has not been given. Until it is given, it is of no effect. Granted that there are obvious reasons why it would be unfortunate, as it has been in this case, for a judge to alter a draft judgment which has been handed to the parties, it remains a draft judgment which, in my view, the judge is at liberty to alter. The jurisdiction to do so is not in doubt. The question is whether "exceptional circumstances" or something less rigorous will enable him to do so in a particular case.
Parties should understand that this procedure is not an invitation to pick holes in the substance of the draft judgment nor to invite the court to reopen or add to contentious matters. The court will only exceptionally make material alterations to a draft judgment provided in this way. So perhaps the uninformative label "exceptional circumstances" needs to be appended to the exercise of the jurisdiction. I personally prefer Rix LJ's "strong reasons", but that again is only a label. The question whether to exercise the jurisdiction can only depend on the circumstances of the particular case.
In this case the bank is seeking an additional remedy, which I had expressly indicated would be dealt with when the judgment was handed down. In those circumstances I do think it appropriate that I should at least consider the points raised by Mr Waugh.
The Facility Letter
Mr Waugh has drawn to my attention various authorities on s.2 of the Law of Property Act ( Miscellaneous Provisions) 1989 and has repeated submissions, firstly that the facility letter was within s.2 and secondly, that the legal charge was not enforceable as a contract to create a legal charge or as an equitable mortgage.
The authorities relied on by Mr Waugh do not, with respect, assist him. For reasons that are set out in my judgment, the facility letter is not an agreement within s.2. That has been established by Lloyd LJ's judgment in the Court of Appeal and for those reasons, as I set out in my judgment, it is not open to Mr Waugh to go behind that decision. I explain this in paragraphs 37 and 46 of my judgment.
The Legal Charge
Mr Waugh referred me to a number of authorities including United Bank of Kuwait v Sahib [1995] 2 AER 973 and Murray v Guinness [1998] NPC 79. However these authorities are all authorities where there is no compliance with s.2.
In this case the legal charge was signed by both parties and insofar as it incorporated the conditions they are expressly referred to in the legal charge. Thus, the legal charge did comply with s.2. It follows that Lightman J's observations in Murray v. Guinness about the effect of non-compliance with s.2 do not assist Mr Waugh.
For the reasons that I gave in paragraphs 83 – 85 of my judgment that the legal charge creates an equitable charge and/or an agreement to create a legal charge incorporating the conditions.
Mr Waugh also referred me to Herbert v Doyle [2010] EWCA Civ 1095, where Arden LJ refused to allow an estoppel to override s2 of the 1989 Act. It is not necessary for me to go into the detail of that case, because it will be recalled that I ruled in paragraph 81 of my judgment that there is no estoppel, which prevents the Trustees from alleging that the legal charge did not comply with s.1.3 of the 1989 Act. However, as I pointed out in paragraph 60 of my judgment this does not mean that the conveyance is void for all purposes, it is only void for the purpose of conveying or creating a legal estate.
Amount of debt
The next matter that Mr Waugh raised related to the financial figures and he asserted that the actual monies that had been paid back came to more than the monies that had been lent by a figure of approximately £49,000. This was, of course, to ignore all the terms in relation to interest and the like, which were contained in the facility letter. Furthermore, as Mr Wilson reminded me, there was no real documentary basis for the assertions which were being made by Mr Waugh. No documentary evidence was exhibited to any of his witness statements and therefore, of course, Mr Wilson was not in a position to deal with the minutiae of the figures.
In paragraph 32 of my judgment I drew...
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Sean Lindsay v Jared Michael O'Loughnane
...on the basis that the defendant had shown by his conduct that he would refuse to execute: paragraph 17) and Bank of Scotland v Waugh [2014] EWHC 2835 (Ch) (see paragraphs 29–30). It does not appear that this point was raised with the Deputy Judge in the Blight case, which does not record e......