Ivan Kaye v Amanda Lees
| Jurisdiction | England & Wales |
| Judge | Mr Justice Swift |
| Judgment Date | 21 December 2022 |
| Neutral Citation | [2022] EWHC 3326 (KB) |
| Docket Number | Case No: KB-2022-002296 |
| Court | King's Bench Division |
and
[2022] EWHC 3326 (KB)
Mr Justice Swift
Case No: KB-2022-002296
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Philip Judd (instructed by Perrin Myddelton) for the Applicant
Martin Westgate KC, Daniel Clarke (instructed by TV Edwards LLP) for the Respondent,
Amanda Eilledge (instructed by Penman Sedgwick LLP) for the for the Interested Party
Hearing dates: 13 September 2022 and 26 October 2022
Approved Judgment
A. Introduction
Mr Kaye's application was made on 21 July 2022 by reference to the provisions of the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium)(England and Wales) Regulations 2020 (“the 2020 Regulations”). The context in which the application arises is as follows.
In a judgment handed down on 30 July 2018 at Central London County Court, HHJ Roberts found in favour of Mr Kaye on his claim against Ms Lees in nuisance and under section 3 of the Protection from Harassment Act 1997, and dismissed Ms Lees' counterclaim for damages for nuisance and/or harassment. Those claims arose from the parties' respective residence in flats at 8 Leysfield Road London, W12. Mr Kaye was the leaseholder of the first floor flat; Ms Lees, the leaseholder of the ground floor flat. In this judgment I shall refer to the ground floor flat as “the Leysfield Road flat”. In a further judgment handed down on 18 January 2019, Judge Roberts awarded Mr Kaye £96,963.00 in damages, and ordered Miss Lees to pay £50,000 on account of costs. Both sums were to be paid by 1 February 2019.
The amounts due were not paid and in consequence charging orders were made: an interim order on 4 March 2019; and a final order on 7 June 2019. The orders covered both the judgment debt and the interest accruing on that debt. On 6 March 2020 District Judge Kanwar, sitting at Willesden County Court, made an order for sale and possession. That order (1) required Ms Lees to pay £290,925.88 by 4pm on 3 April 2020 (that amount comprising the judgment debt, interest and costs); and (2) in default of payment provided for the sale of the Leysfield Road flat at a price not lower than £470,000. So far as concerns that sale, the Order included the following.
“2. The Property shall be sold without further reference to the court at a price not less than £470,000 unless that figure is changed by a further order of the court.
3. Perrin Myddelton shall have conduct of the sale.
4. To enable the Claimant to carry out the sale, there be created and vested in the Claimant pursuant to section 90 of the Law of Property Act 1925 a legal term in the property one day less than the remaining period of the term created by the lease under which the Defendant holds the Property.
5. The Defendant must deliver … possession of the Property to the Claimant on or before 3 rd April 2020.
6. The Claimant shall first apply the proceeds of the sale of the Property:
(i) To pay the costs and expenses of effecting the sale; and
(ii) To discharge any charges or other securities over the Property which have priority over the charging order.
7. Out of the remaining proceeds of the sale the Claimant shall:
(i) Retain the amount due to him as stated in paragraph 1; and
(ii) Pay the balance (if any) to the Defendant”.
In June 2021 Mr Kaye obtained a warrant for Ms Lees' eviction. Notice of eviction was given in July 2021, and the eviction was scheduled for 24 August 2021. However, on 30 June 2021, Ms Lees obtained a breathing space moratorium under the 2020 Regulations and the eviction was cancelled. On 28 September 2021 Deputy District Judge Althaus, sitting at Wandsworth County Court, made an order transferring the proceedings to the High Court “for the purposes of enforcement”.
On 12 October 2021 a further notice of eviction was issued, but this was cancelled following a decision on 26 October 2021 to grant Ms Lees a mental health crisis moratorium under the 2020 Regulations.
What happened next is set out in detail in the judgment handed down by HHJ Dight CBE, sitting as a Judge of the High Court on 13 May 2022 ( [2022] EWHC 1151 (QB)). In summary, notwithstanding a further moratorium granted under the 2020 Regulations on 12 January 2022, on 13 January 2022, Ms Lees was evicted from the Leysfield Road flat pursuant to a notice of eviction obtained by Mr Kaye on 5 January 2022. The eviction took place in aid of the order for sale and possession that had been made on 6 March 2020. Ms Lees then issued an application on 24 February 2022 for a declaration that the eviction, and the execution of the 6 March 2020 order, was null and void by reason of regulation 17(2) of the 2020 Regulations. That application was heard by Judge Dight and was the subject of his 13 May 2022 judgment. By the time that application was heard by Judge Dight, Mr Kaye had, on 10 March 2022, sold the Leysfield Road flat to Chelsea Dixon, and dispersed the proceeds of sale, in accordance with paragraph 6 and 7 of the 6 March 2020 Order, including payment of £188,963.90 to Santander to discharge the mortgage taken out by Ms Lees on the Leysfield Road flat.
Judge Dight granted Ms Lees' application. By an order sealed 16 May 2022 he granted a declaration that
“Both the execution of the writ of possession on 13 January 2022 and the purported sale of the property to [Chelsea Dixon], said to have occurred on 10 March 2022 are null and void.”
The application now before me is an attempt to address the consequences of Judge Dight's order. Section 3 of the Form N244 filed by Mr Kaye on 21 July 2022 states that the following order is sought.
“A declaration that Mr Kaye (“the Applicant”) is a subrogated debt holder following the order of HHJ Dight CBE on 13 May 2022, and that the subrogated debt is a qualifying debt for the purposes of Regulation 15 of the [2022 Regulations] …
Further, for an order pursuant to Regulation 19 of the [2020 Regulations] that the Respondent's mental health crisis moratorium dated 13 January 2022 (“the Moratorium”) be cancelled in respect of the Subrogated Debt because the Moratorium unfairly prejudices Mr Kaye's interests as a creditor.
Further or alternatively, that the Moratorium be cancelled in respect of the judgment debt owed to Mr Kaye following the order of HHJ Roberts on 2 January 2019 (“the Judgment Debt”) because the Moratorium unfairly prejudices Mr Kaye's interests as a creditor.
Further or alternatively, for an order pursuant to Regulation 7(2)(b) that Mr Kaye be permitted to take enforcement action pursuant to Regulation 7(6)(c) in respect of the Subrogated and/or Judgment Debts, namely the possession and sale of the Respondent's interest in the property at 8 Leysfield Road, W12, London …”
The submissions made to me have concerned the following. (1) Whether the consequence of the payment Mr Kaye made to Santander is that he is subrogated to Santander's rights to collect the amount outstanding on the mortgage on the Leysfield Road flat, and if so, the significance of this for the purposes of regulations 13 and 15 of the 2020 Regulations. (2) Whether Mr Kaye can pursue an application under regulation 19 of the 2020 Regulations to cancel the moratorium granted on 12 January 2022 and/or a successor moratorium granted on 15 February 2022. (3) Mr Kaye's application under regulation (7)(2)(b) of the 2020 Regulations to take enforcement action in respect either of the subrogated mortgage debt, or the debt the arising from the judgment of HHJ Roberts of 18 January 2019 (i.e., the debt subsequently described in the 6 March 2020 Order).
B. Decision
(1) The 2020 Regulations
A mental health crisis moratorium is (by regulation 28(1)) a moratorium in respect of a debtor who is receiving mental health crisis treatment. Such treatment is defined at regulation 28(2). For present purposes regulation 28(2)(e) is material and is that the debtor
“(e) is receiving any other crisis, emergency or acute care or treatment in hospital or in the community from a specialist mental health service in relation to a mental disorder of a serious nature.”
Regulation 28(3) defines “specialist mental health service” as
“(3) In this regulation “specialist mental health service” means a mental health service provided by a crisis home treatment team, a liaison mental health team, a community mental health team or any other specialist mental health crisis service.”
An application for a mental health crisis moratorium can be made by any of the persons listed in regulation 29(1). The list includes the debtor, and a range of persons who might provide medical care for persons receiving mental health crisis treatment. The application is made to a “debt advice provider” defined in regulation 3(1) as
“(1) In these Regulations a “debt advice provider” is—
(a) an authorised person who has Part 4A permission to carry on any regulated activity of the kind specified in article 39E (debt-counselling) of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001, or
(b) a local authority.”
Regulation 30 explains the position on consideration of the application as follows
“(2) Having considered an application for a mental health crisis moratorium, a debt advice provider must initiate a mental health crisis moratorium on behalf of a debtor if the debt advice provider considers that—
(a) the debtor meets the eligibility criteria in paragraph (3),
(b) the conditions in paragraph (4) are met, and
(c) the debts to be included in the moratorium are qualifying debts.
(3) The eligibility criteria referred to in paragraph (2)(a) are that the debtor—
(a) is an individual,
(b) owes a qualifying debt to a creditor,
(c) is domiciled or ordinarily resident in England or Wales,
(d) is not subject to a debt relief order,
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Ivan Kaye v Amanda Lees
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Ivan Kaye v Amanda Lees
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