Royal Bank of Scotland Plc v Miller
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KENNEDY,Lord Justice Dyson,LORD JUSTICE DYSON |
| Judgment Date | 27 February 2001 |
| Neutral Citation | [2001] EWCA Civ 344 |
| Docket Number | B3/2000/5911/6412 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 February 2001 |
[2001] EWCA Civ 344
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
SITTING IN THE MANCHESTER DISTRICT REGISTRY
ON APPEAL FROM THE ACCRINGTON COUNTY COURT
(HIS HONOUR JUDGE APPLETON)
Crown Square,
Manchester M3
Lord Justice Kennedy
Lord Justice Dyson
B3/2000/5911/6412
The Applicant appeared in person.
MR S COGLEY (Instructed by Messrs Cobbetts, Manchester M2 4WB) appeared on behalf of the Respondent
Lord Justice Dyson will give the first judgment.
This is an application for permission to appeal against the decision of His Honour Judge Appleton, made on 14 July 1999 in the Preston County Court, whereby he dismissed the applicant's appeal from a possession order made by District Judge Geddes on 15 March 1999 in respect of premises at 98a Blackburn Road, Accrington. The notice of appeal was issued on 28 March 2000. Accordingly the applicant not only needs permission to appeal but an extension of time for appealing.
It seems to me that this is a case in which permission should be granted since issues of some importance have been raised. Moreover, although the applicant requires a considerable extension of time, she has at all material times been acting in person and has given an explanation for the delay in issuing her notice of appeal, sufficient, in my judgment, to entitle her to the appropriate extension of time.
The applicant is the freehold owner of the premises which consist of a night club now known as Afrikas. There is substantial living accommodation above the night club which comprise a 3-bedroom flat. It seems that the bank does not dispute that the upper part of that accommodation has at all material times been a flat and has been in occupation, certainly since 1993; in occupation sometimes by the appellant herself and sometimes by a manager or manageress of the night club pursuant to that person's employment.
A legal charge was granted over the property by the applicant on 6 October 1993 to the respondent bank to secure her obligations to the bank. Those obligations were stated in the legal charge as being:
"All the Mortgagor's liabilities to the Bank of any kind (whether present or future actual or contingent and whether incurred alone or jointly with another) including banking charges and commission."
At that time the applicant had two accounts with the respondent. The first was a loan account in respect of a loan of £115,000 which was made at the same time as the legal charge for the purposes of refurbishing the night club. Clause 5(c) of that loan agreement provided that the loan would be repayable:
"From the maturity proceeds of personal equity plans in 10 years time."
Clause 5(b) provided that interest would be charged quarterly. Clause 15 provided that:
"If the Bank so decides, the Loan shall become immediately due and payable by the Customer with interest in so far as then remaining unpaid, if any of the following events occurs: -
(a) non-payment of any of the Payments within 14 days from the date on which it is due to be paid;
.
(f) a default arises under any other liability of the Customer to the Bank."
The second account was an existing business current account which at that time had an overdraft facility of up to £2,500. This was to be used to pay the interest on the loan.
All seemed to go according to plan until 1997 when no funds were transferred into the current account to meet the June and September quarterly interest on the loan. The bank wrote to the applicant asking for proposals. She made certain offers which were unacceptable, and eventually the bank brought proceedings. On 12 February 1998, after a formal demand had been made in respect of the current account, which at that time was overdrawn by more than £9,000, the bank also made a formal demand for repayment of the whole of the loan. Possession proceedings were commenced on 19 May 1998. The bank claimed that arrears amounting to some £119,000 odd and £10,000 odd respectively were owing on the two accounts.
The appellant was unrepresented at that time. She served a defence. She did not deny any of the facts alleged by the bank, but she made a proposal for the consideration of the court that she be allowed 12 months grace to sell the club as a going concern. Meanwhile she offered to pay £300 per week to the bank. She mentioned in her defence that she had a "live in flat" above the premises and "I am a one parent family with two children". In March 1999 the appellant served two affidavits in which she made a number of complaints about the way in which the bank had behaved. I do not find it necessary to examine those complaints.
The case was adjourned by the district judge several times in 1998 but it eventually came on for hearing on 15 March 1999. The district judge made an order granting possession on 26 April 1999. He adjourned the claim for a money judgment generally.
Ms Miller appealed and the appeal was heard by Judge Appleton on 14 July. He took the view that this was an all monies charge and therefore the legal charge over the property secured not only the loan account but also the current account. He held that, in those circumstances, he had no power to postpone possession. He referred to Birmingham Citizens Permanent Building Society v Caunt [1962] 2 WLR 233. He rejected the appellant's argument that the property included a dwelling on the grounds that, when she executed the legal charge, she was living at a different address which was her then matrimonial home.
The judge took the view that the long delay during the proceedings meant that the arrears had built up to a position where there was no chance that they, together with the principal sum, could be repaid in a short time. He said:
"The sad fact is that the business climate which Mrs Miller took a business view on, the market went into reverse and she was unable to sustain trading that would have sustained the loan."
In her grounds of appeal Ms Miller seeks to raise a number of points. The principal ground is that the bank had wrongly asserted that the premises were not a dwelling.
The facts relating to the occupation of the upper part of the premises are to some extent shrouded in mystery. This is because, having decided that the relevant date for determining whether the land consisted of or included a dwellinghouse was the date of the grant of the charge, the judge did not go on to determine whether the premises consisted of or included a dwelling at any later date.
We have been told by Ms Miller that she occupied the flat herself from time to time during the currency of the mortgage. As to the state of affairs in May 1998 when proceedings were started, she was unable to say whether she was in occupation of the flat, or whether Mrs Heather Steele, her then manageress, was in occupation. She does say, however, that at that time the premises were occupied.
The first question that arises turns on the true construction of section 36(1) of the Administration of Justice Act 1970...
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