Scottish Equitable Plc v John Thompson and Susan Pearson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,LORD JUSTICE MUMMERY,LORD JUSTICE LATHAM,Lord Justice Mummery |
| Judgment Date | 06 February 2003 |
| Neutral Citation | [2003] EWCA Civ 211,[2003] EWCA Civ 225 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B2/02/1639 |
| Date | 06 February 2003 |
[2003] EWCA Civ 211
Lord Justice Pill
Lord Justice Mummery
Lord Justice Latham
B2/02/1639
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
WEST CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE COWELL)
MR DAVID GILCHRIST (instructed by Messrs Addleshaw Booth & Co, Leeds, LS1 1HQ) appeared on behalf of the Appellant
The Respondent did not appear and was not represented
This is an appeal by Scottish Equitable Plc against decisions of His Honour Judge Cowell who gave judgment in favour of Mr John Anthony Thompson and Susan Joan Pearson in a money claim made against them by Scottish Equitable Plc ("the appellants).
The case has been listed for the whole day. The appellants appear by counsel. Mr Thompson has appeared in person and has addressed the court. He has applied for an adjournment of the case and it is with that application we now deal.
Mr Thompson has informed us that he is no longer represented. It is clear that his former solicitors have come off the record. This only came to the knowledge of the appellants' solicitors within the last couple of days. In doing justice, the court must bear in mind the interests of the parties and the public interest. Mr Thompson seeks the adjournment in order that he may obtain other legal representation. However, in relation to the time factor, members of the court were aware late last week that Mr Thompson was not likely to be represented. I am not able to say from where that information originated.
In accordance with their usual practice, the members of the court, having received a skeleton argument from the appellants, enquired of the office about skeletons from the respondent. It was as a result of such inquiries that the information came to the court.
That is a matter of history. The court has to consider what is the just outcome of this application. A legal point is involved in the appeal. Mr Thompson says he is not in a position to argue it. Asked about the length of the adjournment he seeks, he asks for "some months". He has frankly told the court that he owes his former solicitors in the region of £5,000-£6,000. He has told the court he is not now in full-time employment; he is in part-time employment. He accepts that he is unable to instruct other solicitors at present so the adjournment would have to be for a substantial period of time.
I conclude that he must have been aware that he was not going to be represented today. He has not sought fit to notify the court of that. The case has been listed for the day. If it is adjourned, other litigants will suffer because, if this case is relisted, the cases which would have been heard on that day could not be heard. That is a factor which the court must bear in mind.
The court must also bear in mind the position of the appellants and the fact that the present proceedings were commenced in 1999, although Mr Thompson points out that the dispute has been going on for some years before that. It is time that these matters were finally resolved. The application is opposed by the appellants. In their submission justice must be done to them as well and the long adjournment contemplated would be unfair to them.
We are not able to accede to Mr Thompson's applications, which he has told us he has also made on behalf of the other co-respondent who is now his wife. Clearly, the court does that only having considered the precise situation carefully. If the case proceeds, it will do so on the basis of legal argument and he is not legally qualified. He makes the point that he cannot argue legal points. At present it appears to us that the appellants have a strong case. That is because of the recent decision of this court, delivered on 31 July 2002, in the case of Bristol and West v Bartlett. We shall, as we propose to refuse the adjournment, in due course hear argument on the point. A factor we are entitled to take into consideration is the strength of the case. The value to anyone, especially Mr Thompson, in granting an adjournment which would involve him in further, perhaps unnecessary, costs is a factor we have in mind.
We refuse this adjournment on the basis that it would not be in the interests of justice that the case is adjourned. The interests of justice require that the matter be resolved today.
Accordingly the application to adjourn is refused.
I agree.
I also agree.
Order: Application to adjourn dismissed.
[2003] EWCA Civ 225
Lord Justice Pill
Lord Justice Mummery
Lord Justice Latham
B2/02/1639
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
(CENTRAL LONDON COUNTY COURT)
(HIS HONOUR JUDGE COWELL)
MR DAVID GILCHRIST (instructed by Messrs Addleshaw Booth & Co, Leeds, LS1 1HQ) appeared on behalf of the Appellant
The Respondent appeared in person
I will ask Lord Justice Mummery to give the first judgment.
This is an appeal from two decisions of His Honour Judge Cowell on 10 January and 19 July 2002. His decisions resulted in the making of orders in the Central London County Court dated 11 January and 6 August 2002 respectively.
The judge's decisions arose out of an action by Scottish Equitable Plc to recover from Mr John Thompson and his wife, Susan the principal sum of £15,000 lent by Scottish Equitable to Mr and Mrs Thompson and secured by a second mortgage on a property, Flat 6, Browning House, 19–21 Formosa Street, London W9 ("the property").
The property was already subject to a first mortgage in favour of the Halifax Building Society. The second mortgage, dated 23 November 1988, was for a principal sum of £15,000 together with interest and other money payable, or to become payable. The mortgage stated:
"In consideration of the Principal Sum paid by the Society to the Borrower (the receipt of which is hereby acknowledged) the Borrow as beneficial owner hereby charges the property by way of legal mortgage with the payment to the Society of the Principal Sum interest and other money payable or to become payable to the Society by the Borrower hereunder subject nevertheless to the First Legal Charge and to the Principal Moneys and interest thereby secured and it is hereby agreed that this Second Legal Charge incorporates the Mortgage Conditions printed overleaf."
Clause 2 stated:
"This Mortgage shall be security to the Society for the Principal Sum and also for further advances."
The mortgage conditions set out in the following three pages contained various standard clauses, including in clause 2 a covenant by the borrowers with the society to pay interest at the interest rate, which is defined—
"…from the date hereof on the Principal Sum or such part thereof as such shall from time to time remain unpaid.
(ii) from the date such payment is due on any interest or other money here by secured which remains unpaid after the date payment is due."
The mortgage conditions do not contain any express covenant by the borrowers for repayment of the principal sum, nor do they specify any particular event for repayment by reference to a date, or to some act or omission, such as default, in paying interest. The absence of such provisions is no doubt explained by the fact that, at the same time as the second mortgage, a life policy was assigned to Scottish Equitable, as evidenced by the Notice of Assignment dated 23 November 1988. According to that Notice of Assignment, the solicitors for Standard Property Investments Plc gave notice that:
"…by an Assignment dated as undernoted the Policy or Policies undermentioned with all bonuses and additions which may have or which may become due thereon have been assigned to SCOTTISH EQUITABLE LIFE ASSURANCE SOCIETY…by the Assignor undernoted as security for monies owing to them."
The lives assured under the specified Scottish Equitable policy are those of Mr and Mrs Thompson.
It appears from a letter of 10 April 1989 that the premiums had not been paid on the policy from 28 November 1988. A letter to Mr and Mrs Thompson informed them that the policy had been cancelled. A letter was written on 21 April 1989 about the loan made by Scottish Equitable referring to the non-payment of the premiums and the cancellation of the endowment policy. The letter said:
"It is a condition of the loan that this policy remain in force at all times and we therefore have to insist that you contact the Scottish Equitable direct with a view to reinstating the policy if at all possible for taking out a further policy."
At that time there were obviously grounds for possession proceedings, which were issued in the Westminster County Court on 25 September 1990. They were served in October 1990. From the records produced, it is clear that the last date on which Mr and Mrs Thompson made a payment under the mortgage was 7 March 1991, when the sum of £228.13 was paid.
An agreement was reached between the parties for the payment of the arrears, as a result of which a letter was sent to the Westminster County Court on 11 December 1990 asking...
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