National Westminster Bank Plc v Powney
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SLADE |
| Judgment Date | 06 October 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J1006-1 |
| Docket Number | 89/0924 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 October 1989 |
[1989] EWCA Civ J1006-1
Lord Justice Slade
Lord Justice Balcombe
and
Lord Justice Staughton
89/0924
Plaint No. 7706976
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NORWICH COUNTY COURT
(HIS HONOUR JUDGE HEAD)
Royal Courts of Justice
MR. NICHOLAS STEWART Q.C. (instructed by Messrs. Wilde Sapte, Solicitor London, EC4V 3BD) appeared on behalf of the Plaintiff (Appellant).
THE FIRST AND THIRD DEFENDANTS appeared in person.
This is the judgment of the court, to which all its members have contributed, on an appeal by National Westminster Bank PLC ("the Bank") from a judgment of His Honour Judge Head given in a mortgagee's action in the Norwich County Court on 20th October 1988. The learned judge described the case as complicated and long-running. Furthermore, it is by no means without difficulty. On one point which we shall mention, the judge was faced with conflicting decisions of this court and a note in the County Court Practice which may be misleading, the point being (in the light of other conclusions of the judge) essential to the Bank's case if it were to succeed. Since December 1985 it has involved over 13 court days of hearing spread over almost three years and his detailed and careful judgment occupied some 100 pages of transcript.
In reciting the history of the matter, it will be convenient to use certain abbreviations which were those used by the judge. "PGP" refers to the first defendant, Mr. Peter Greville Powney. "GSP" refers to the second defendant, Mr. George Stanley Powney, the father of PGP and now deceased. "PJP" refers to the third defendant, Mrs. Pamela Jane Powney, who is the wife of PGP. "SK 7195" is the registered title number of and refers to a house and several acres of land known as Botesdale Lodge, Suffolk. " 0.S.117" is the Ordnance Survey number of and refers to a field which adjoins SK 7195.
In 1967 SK 7195 was conveyed to GSP and PJP as joint tenants in law and tenants in common in equity. In 1971 PGP became the sole owner of 0.S. 117. Its registered title number is SM 12078.
By a mortgage dated 4th March 1973 PGP charged 0.S.117 in favour of the Bank to secure the repayment of all sums due to the Bank from PGP. By another mortgage also dated 4th March 1973 ("the joint mortgage"), GSP and PGP charged SK 7195 in favour of the Bank to secure the repayment of all such sums. This was a property where PGP and his wife, PJP, lived, as the Bank was aware at the date of the mortgage.
On 23rd September 1975 the Bank made a demand on PGP for payment of £19,358–49 said to represent "the debit balance in our favour after aggegation of the balances of the accounts in our books". This demand was not met. On 17th November 1976 the Bank made a demand on PGP and GSP for the sum of £22,186–13 said to be owed by PGP and secured by the joint mortgage. PGP has made many complaints of the rates of interest which were charged on his account. The judge said (p.12) that "the Bank's claim was in fact wrongly formulated and in fact excessive, if by no means to the degree alleged so that there was…………a proper foundation for a subsequent compromise".
On 5th January 1977 the Bank issued a writ in the Queen's Bench Division (1977 N. No.19) against PGP alone seeking a money jdugment in the sum of £22,493. At a hearing on 17th August 1977 a Queen's Bench Master gave directions providing for the transfer of the action either to the Chancery Division or to the County Court.
On 12th September 1977, the Bank issued proceedings in the Norwich County Court (action 7706976) against PGP alone seeking possession of SK 7195 and payment of all moneys due to the Bank from PGP. The particulars of claim alleged that the amount then owing under the joint mortgage was £24,441–02 and that interest continued to accrue at the rate of £6–08 per day. The action to which GSP was not originally joined as a defendant, provoked a lengthy defence from PGP. His pleading, apparently prepared by him in person, in addition to containing wide-ranging allegations of conspiracy and so forth, challenged the validity of the joint mortgage, the existence of any contractual obligation of PGP to the Bank, and the existence of any agreed rate of interest, or indeed of any indebtedness.
After various interlocutory skirmishes, which do not require mention, an order was made on 17th March 1978 by the County Court Registrar allowing an application by the Bank to join GSP as a defendant to the County Court action. PGP appealed from this order, but on 4th May 1978 His Honour Judge Moylan confirmed it on appeal. An appeal by PGP from that order was dismissed by the Court of Appeal on 5th February 1979. In or about April 1979 the Bank's High Court action was discontinued.
In or about August 1980 part of 0.S. 117 was sold for about £11,000: (see J.22). By that time negotiations were on foot between the Bank and PGP for settlement of the County Court proceedings. On 7th August 1980 solicitors writing on behalf of PJP informed the Bank's solicitors that they had been instructed to intervene in the matter. On 8th August 1980, the Bank's solicitor wrote to PJP's solicitors setting out the draft of a proposed consent order containing terms of settlement between the Bank and PGP. They stated that the agreement was conditional upon PJP consenting to it and enclosed the draft of a letter of consent for her signature. Shortly afterwards PJP signed this letter. It bore the date 12.8.80. It was addressed to the Bank and read as follows:
" P.G. Powney and Botesdale Lodge
I am the wife of Peter Granville Powney. I have seen a copy of the proposed Order settling the proceedings between yourselves and my husband in the Norwich County Court. The contents and the implications of the draft Order have been explained to me by my solicitors and Counsel. I have no objection to the terms of settlement that have been agreed between the Bank and my husband. If it becomes necessary for the Bank to take steps in 1981 to enforce the Order, I shall not in any way oppose the enforcement of that Order, and, without prejudice to the generality of the foregoing, will not seek to rely on any overriding interest that I may have by virtue of the Land Registration Act 1925."
The first draft of the proposed consent order was sent to the Registrar of the County Court by PGP's solicitors in August 1980. It began with a recital referring to GSP, as well as the Bank and PGP. The Registrar intimated that he was not prepared to make a sealed order without a specific written consent from GSP or certain assurances to be given by the Bank's and PGP's respective solicitors On 3rd September 1980 the Bank's solicitors wrote to the Registrar informing him that GSP was not legally represented and that it had not yet proved possible to obtain his consent. In view of this, the Bank's solicitors and PGP's solicitors, who appended their written consent to the letter, asked that the proposed order be varied so that the recital would read "UPON HEARING the solicitors for the plaintiffs and the First Defendant AND BY CONSENT…….." They commented: "If the Order is varied in this manner it will stand purely as an Order binding [the Bank] and [PGP] and will not bind the position of [GSP]".
On 25th September 1980 the Registrar, as requested, sealed a consent order which read as follows:
"AND BY CONSENT
AND UPON THE PLAINTIFFS UNDERTAKING BY THEIR SOLICITORS
(a) not to sell or seek to sell the whole or any part of Botesdale Lodge without the written consent of the First Defendant first being sought, and if such consent be not forthcoming within fourteen days
(b) to instruct a surveyor to be agreed between the Plaintiffs and the First Defendant, or in default of agreement nominated by the President of the Royal Institute of Chartered Surveyors, to advise on what part of Botesdale Lodge, saving the Lodge itself, if at all possible, should be sold to satisfy the judgment debt and on receipt of such advice will serve a copy thereof on the First Defendant's solicitors and shall
(c) take such steps to sell such part of the Lodge as the said surveyor shall deem necessary
IT IS ORDERED that Judgment be entered for the Plaintiffs against the First Defendant for £20,000
2. the First Defendant do give up possession to the Plaintiffs on 31st December, 1980 of all that property known as The Lodge, Botesdale Green in the County of Suffolk, registered udner Title Numbers SK7195 and SM12078.
3. the Plaintiffs accept the sum of £15,000 in satisfaction of their Judgment against the First Defendant, provided the said £15,000 be paid on or before 31st December, 1980."
It has been common ground in the court below and in this court that the wording of this order ("the 1980 order") purported to place an obligation on PGP to give up possession to the Bank not only of SK 7195, but also of 0.S. 117, possession of which had not been sought in the County Court proceedings. The legal effect of the order has given rise to much dispute and will require consideration later in this judgment. We will anticipate later events by saying that pursuant to the 1980 order a warrant for possession was issued in 1985 and it is the order made by Judge Head on an application to set that warrant aside which is challenged on this appeal.
It seems clear that, following the 1980 order, the Bank for a time contemplated that PGP would set about selling one or both of the properties for the purpose of paying off his debt. By...
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