Mortgage Express v Christopher Ramsay
| Jurisdiction | England & Wales |
| Judge | Mr Justice Freedman |
| Judgment Date | 15 March 2023 |
| Neutral Citation | [2023] EWHC 566 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: KA-2022-000236 |
[2023] EWHC 566 (KB)
Mr Justice Freedman
Case No: KA-2022-000236
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ON APPEAL FROM HHJ RICHARD ROBERTS
IN THE CENTRAL LONDON COUNTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Christopher Ramsay appeared in person
Mr William Birch (instructed by Walker Morris LLP) for the Claimant/Respondent
Hearing date: 14 December 2022
Transcript provided of hearing before HH Judge Richard Roberts: 17 January 2023
Draft judgment handed down: 10 March 2023
Approved Judgment
This judgment was handed down remotely at 12noon on Wednesday 15 March 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives
This is an application for an extension of time to file an appeal notice and for permission to appeal out of time against an order of HH Judge Roberts (“the Judge”) made on 8 December 2021. By an order of 2 December 2022, Mr Justice Goose directed that the application and, if appropriate, the appeal itself, be heard orally on 14 December 2022.
On 17 July 2018, the Claimant obtained a possession order in respect to the Claimant's property at 5 Ruben Place Enfield EN36 XG (“the Property”). The matter arises out of a hearing which took place on 8 December 2021, where the hearing was by Microsoft Teams in the absence of the Defendant.
II Background
The chronology is long and complicated. The possession order was obtained on 9th July 2018. At a hearing dated 22nd February 2019, arrears were determined of £70,000.38. Between May 2019 and July 2021, there was a history of stays and adjournments. In large part due to illness and COVID. no payments were made, and the arrears increased.
At the hearing of 8 December 2021, two applications were heard in the absence of the Defendant but upon attendance of the Claimant by Counsel Mr Christopher Greenwood, namely:
(1) the Defendant's application of 6 June 2019 for a stay pending an eviction or for the eviction to be aborted (“the Stay Application”);
(2) the Claimant's application dated 9 August 2019 for permission to transfer enforcement of possession order to the High Court pursuant to the County Courts Act 1984 s.42(2) (“the Transfer Application”).
The first application was dismissed. The second application was granted. It was also ordered that there be a declaration that the Defendant's application was totally without merit. It was further ordered that the Defendant must copy the Claimant into correspondence with the court.
In addition to the two applications, the Court also heard an application on the part of the Claimant that the Defendant to do attend or be represented at any future hearings. The Court refused to make an order about this on the basis that it was not satisfied that it had the power to make it: see paras. 1–10 of the judgment.
The reasons for the absence of the Defendant at the hearing of 8 December 2021 is an important aspect of the application for permission to appeal. The Defendant says that he did not know about the Microsoft Teams hearing. On the contrary, the Defendant attended court where he says that he was told by a court employee that the hearing was not taking place. The first that he knew about it was on a return from a period of 11 days away on 26 November 2022. He promptly issued a notice of application for permission to appeal.
The Defendant submits that the order made on 8 December 2021 should be set aside. In the course of a hearing on 14 December 2022, he said more than this, namely that the order that was made was a forgery in the sense that there was no hearing on that date. I was told that the Defendant had ordered a transcript to prove that there was no hearing. At the time that the matter was before me, there was no transcript. The question was whether I should await the transcript which would involve the judgement being deferred into the New Year. I agreed to await the transcript before giving judgment. I received the transcript on 17 January 2023.
It is apparent from the transcript that there was a hearing on 8 December 2021. I reject the suggestion that there was no hearing or that the order was a forgery. The evidence of the transcript shows that there was a hearing. There is an explanation, albeit not an excuse, as to how the order came to be prepared and entered so late. This is unsatisfactory, but the allegation of forgery is based on speculation falling short of any substantial evidence of a forgery.
There were a number of unusual features which had led the Defendant to make his assertions, namely:
(1) There was a procedural mishap surrounding the hearing of 8 December 2021. The Defendant sought an adjournment of the hearing because of illness. That led to a requirement that the Defendant provide an unredacted isolation notice and also provided for the Claimant to respond. In the meantime, on 7 December 2021, the Court ruled that the hearing for 8 December 2021 would occur by Microsoft Teams. This ruling did not come to his attention.
(2) In the event, the Defendant felt compelled to attend Court on 8 December 2021 in the belief that the hearing was to be in person. He was told at court that there was to be no hearing. That was true in the sense that there was to be no court hearing in person, but he was not told about the hearing by Microsoft Teams.
(3) There was then a delay about the processing of the order of many months. The sealed order did not come to the Claimant from the Court until 9 September 2022, and this contained no provision for service on the Defendant. As noted above, the Defendant says that the order only came to his notice on 26 November 2022. In his Grounds of Appeal (Ground 1), the Defendant challenges the validity of the order because it does not state the date and time of the hearing. This does not affect the validity of the order: if it did, it could be corrected without the need for an appeal.
The Defendant has put together each of these features and has arrived at a conclusion that he must have been misled to such an extent that the hearing of 8 December 2021 must not have occurred. He has now been provided with the transcript and had the opportunity to make submissions about this. He now relies upon a witness statement of 20 January 2023. In that witness statement, he no longer contends that the hearing did not take place, but alleges that there were grave improprieties which occurred, namely:
(1) The application of the Claimant for a transfer to the High Court dated 9 August 2019 was not heard or dealt with, contrary to the order made by the Judge. The Defendant draws attention to the transcript of the hearing of 8 December 2021 where the Judge asked whether the application dated 9 August 2019 was listed, and Mr Greenwood answered by saying that it was unclear: see p. 13–14. The Defendant says that contrary to evidence of the Claimant, he did not receive the application. He says that this was a tactical measure of the Claimant: see paras. 36–39. In connection with his application for an adjournment, he said that the application had not been listed and has not been served on him: see the Defendant's witness statement dated 20 January 2023 at paras. 4–9.
(2) The Claimant failed to process the order despite the Judge saying that if the order had been emailed to him, he would approve it today. The Defendant's case is that the Claimant has given an impression by its communications to the Court chasing the order that the matter was urgent. He says that the Claimant's actions in not following the instruction of the Judge to have the order sent to the Judge on the day when the order was made was deliberate to exclude and prevent him from appealing the order and “to keep me in the dark regarding the content of the proceedings and to prevent me from obtaining the Order for several months, so as to scupper and prevent an appeal”: see the Defendant's witness statement dated 20 January 2023 at paras. 10–14.
(3) The documents of the Claimant and in particular submissions made to the Court on 7 December 2021 were not passed on to the Judge by the Judge's clerk in breach of his article 6 rights. He accuses the Court of having suppressed these documents and the Claimant of failing to inform the Court of these documents despite knowing about the same: see the Defendant's witness statement dated 20 January 2023 at paras. 16–22.
As regards the first of the above points about whether the application for a transfer to the High Court was served on him, it is apparent from the transcript that the Judge did hear that: see p. 6 of the transcript at lines 15–19 and para. 13 of his judgment. The application was mentioned in the Claimant's skeleton argument dated 6 December 2021 at paras. 1(d) and 47–49. The point made by the Defendant is that he was not served with this application and that it was not listed to be heard. The Claimant's evidence is that the application was initially made without notice, but it was included in a bundle of documents sent by the Claimant to the Defendant by email on 28 April 2020 in anticipation of a telephone hearing of 29 April 2020: see the witness statement of Calum Ross Davies dated 12 December 2022 at para. 26 and exhibit CRD2 at pages 94–96. However, the Defendant's position is that he did not know about this, and insofar as it was served as part of a bundle, it was buried in it.
The Claimant's Counsel submitted that the N54A procedure was used correctly when it was inapplicable to the case because there had been no obstruction. On the contrary, he suffered from illness: see the Defendant's witness statement at paras. 23–28.
This judgment will first consider the relevant law and then apply it first to the Transfer Application and second to...
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