I Group 2 v Chaudhury and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE PUMFREY |
| Judgment Date | 06 April 2005 |
| Neutral Citation | [2005] EWHC 3510 (Ch) |
| Court | Chancery Division |
| Date | 06 April 2005 |
[2005] EWHC 3510 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Pumfrey
MR S BRILLIANT (instructed by Bernard Elliston Sandler) appeared on behalf of the Claimant
MR Q CHAUDHURY appeared in person
This application by I Group 2 Limited by way of appeal from the decision of Judge Cox sitting at the Lambeth County Court as long ago as 3 March 2004 comes before me in very unfortunate circumstances. The appeal is an appeal against a refusal by the judge to extend time for the filing of an appellant's notice in respect of an order of District Judge McConnell who had dismissed an application for possession by I Group 2 Limited against Mr and Mrs Chaudhury in circumstances which are similar to those which were considered by the Court of Appeal in two cases: Foenander v Bond Lewis & Co [2001] EWCA (Civ) 759, [2002] 1 WLR 525, and Southern & District Finance plc v Turner [2003] EWCA (Civ) 1574. The learned county court judge, rather than dealing with an application for permission to appeal on its merits, disposed of the appeal upon the basis that it was out of time. As those cases point out, such a method of dealing with an application for permission to appeal opens up the possibility of a further appeal to the next appellate tier against the refusal to extend time. The result is a waste of litigants' time, emotion and, potentially, money and is in all respects highly unfortunate.
In the present case, the underlying dispute is a straightforward one. The claimant is a secondary lender who lends sums normally intended to be secured by way of second mortgage, and is the successor to the business of a company called Ocwen Ltd, who made a loan (which is a loan regulated by the Consumer Credit Act 1974) to Mr and Mrs Chaudhury of some £15,000. The date of the loan is 16 March 2000. The APR is said to be 15.2 per cent, although it is a variable interest rate mortgage. The repayment period is 60 months.
It is a common experience that the potential interest charges under such a loan come as a shock to the borrower, and this case is no exception. Mr Chaudhury appears to have, with a couple of exceptions, properly to have kept up his repayments. However, in consequence in part of his illness (though this is no part of, as far as I am aware, the considerations that were before the learned county court judge), he fell into arrears of something of the order of one or two months. The result, as to be expected, was an application to the Lambeth County Court on 5 June 2003 for possession under the mortgage, the claim form for possession of property specifying that the arrears of unpaid monthly instalments were £1,186.82. Whether that was, in fact, the sum outstanding is a matter of lively dispute and Mr Chaudhury maintains that his arrears at the date of issue of these proceedings were certainly not that high.
Therefore, when the matter came before the deputy district judge, this was at first sight a not untypical possession application which could confidently have been expected to result in normal circumstances in a suspended order for possession, the terms of the suspension being tailored so as to ensure that there was a reasonable prospect of the debtor complying with them. As it happens, Mr Chaudhury is ahead at the moment on his payments. He has made a number of substantial payments and has substantially diminished the sum outstanding on this loan. He is, so far as the information before me goes, quite the reverse of a careless borrower.
However, by the time the matter came before the deputy district judge, there had been a lively dispute between Mr Chaudhury and the company as to the propriety of the company's insuring the mortgage premises in accordance with its ordinary terms of business. On three separate occasions by the time the possession application came on for hearing, the company had effected an insurance of the premises in accordance with its standard terms and conditions because Mr Chaudhury had not produced, it says, evidence to its satisfaction of a policy of insurance affecting the mortgage premises noting the company's interest. Such of the correspondence as I have seen in relation to this material appears at first sight to show Mr Chaudhury becoming increasingly heated (and understandably so) in relation to the company's failure, as he saw it, to take any account of the insurance which he had effected in respect of the mortgage premises. Happily, it is no part of my function today to decide the merits of that dispute, but it explains in part why Mr Chaudhury's defence filed at the Lambeth County Court contained as the first positive assertion the contention that the claimant was a thief. It also contains the complaint that Mr Chaudhury had been paying £350 a month for 3 1/2 years of a 5-year loan. He had paid in total £12,917 and there was £13,324 still outstanding on the loan. I have not performed the necessary computations; I assume they are correct. Again, this is not an unfamiliar problem. More important is Mr Chaudhury's payments record, which he said at the date showed that if he was in arrears it was to a very minor extent indeed.
No doubt all this could have affected the decision of the deputy district judge.
The deputy district judge appears to have taken the view that the company should not have effected the insurances in question. By subtracting the premiums for those insurances from the arrears figure, the deputy district judge appears to have formed the view that there were no arrears, notwithstanding the...
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