Sandra Somers-Lloyd v Southern Pacific Mortgage Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison |
| Judgment Date | 12 March 2013 |
| Neutral Citation | [2013] EWCA Civ 468 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2012/2795 |
| Date | 12 March 2013 |
[2013] EWCA Civ 468
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM CIVIL JUSTICE CENTRE
(HIS HONOUR JUDGE WORSTER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewison
Case No: B5/2012/2795
The Applicant appeared in person
The Respondent did not appear and was not represented
Ms Somers-Lloyd is the registered proprietor of two properties at 1117 and 1119 Kingsbury Road in Birmingham. On 18 June 2007 she granted a mortgage over each property to Southern Pacific Mortgage Limited. Each deed of mortgage was executed by Ms Somers-Lloyd but not by Southern Pacific. Southern Pacific was subsequently registered at Her Majesty's Land Registry as proprietor of each charge and remains so registered. Ms Somers-Lloyd fell into arrears under the mortgages, and Southern Pacific began proceedings for possession against her. Those proceedings came before HHJ Worster in the Birmingham County Court. On 17 June 2011 he made an order for possession against her.
By an Appellant's Notice dated 31 October 2012 Ms Somers-Lloyd seeks permission to appeal. Since the appeal would be a year out of time, cogent grounds for appeal and a good explanation for the delay will be needed before permission to appeal can be given. Ms Somers-Lloyd has done a huge amount of research in support of her appeal, and it is the time taken in carrying out that research which accounts for the long delay in filing the Appellant's Notice. In essence, there are two grounds for the appeal. The first hinges on the fact that Southern Pacific did not execute the mortgage deed. Ms Somers-Lloyd argues that the deed is ineffective as a result of its non-execution by Southern Pacific, because of a failure to comply with section 2 of the Law of Property (Miscellaneous Provisions) Act 1989.
However, there are two answers to that point. The first is that this is not a contract for the disposition of an interest in land but a deed of grant. In those circumstances, it is not necessary for both parties to have executed or signed it. In Eagle Star Insurance Company Limited v Green [2001] EWCA Civ 1389, Mummery LJ explained the difference between a deed and a contract. In paragraph 16 of his judgment, he said:
"In this case, as Mr Green points out, there is no preceding contract for the creation of the mortgage in issue. He draws the conclusion from that that the contract must be in the deed. In my judgment that is a misunderstanding. A deed is a different kind of instrument from an ordinary contract; and it is not a requirement of the execution of a deed that it should comply with the requirements of section 2 of the 1989 Act. That is clear. Section 1 refers throughout to deeds, section 2 refers throughout to contracts, clearly recognising that they are two different legal concepts.
17. In my judgment the case in United Bank of Kuwait v Sahib [1997] Ch at 107 does not help Mr Green, because that was a case where there was no deed, unlike this case. There was in that case a purely informal equitable mortgage by deposit of title deeds. That had no effect because, as a contract, it was required to comply with section 2 and it did not comply. In my judgment His Honour Judge Jones was right to reject the submission that Mr Green made on...
To continue reading
Request your trial