West Bromwich Building Society v Wilkinson and another
| Jurisdiction | UK Non-devolved |
| Judge | BARONESS HALE OF RICHMOND,LORD CARSWELL,LORD WALKER OF GESTINGTHORPE,LORD HOFFMANN,LORD SCOTT OF FOSCOTE |
| Judgment Date | 30 June 2005 |
| Neutral Citation | [2005] UKHL 44 |
| Court | House of Lords |
| Date | 30 June 2005 |
and another
[2005] UKHL 44
Appellate Committee
Lord Hoffmann
Lord Scott of Foscote
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
Lord Carswell
HOUSE OF LORDS
Appellants:
John Jarvis QC
Stephanie Tozer
(instructed by Rosling King)
Respondents:
Derek Wood QC
Nigel Meares
(instructed by Staple Inn Partnership, London agents for Peter H Rollin)
My Lords,
In October 1988 Mark and Lynne Wilkinson bought a house near Diss in Norfolk. We do not know how much they paid, but £35,895 of the purchase price was provided by a loan from the West Bromwich Building Society, secured by a charge on the house. The loan with interest was repayable by monthly instalments of about £484.
Disaster struck almost at once. The Wilkinsons appear to have paid only two instalments, in February and July 1989. On 25 July 1989 the building society obtained an order for possession which was executed on 9 October 1989. The property market was at that time in decline and it was some time before the building society negotiated a sale. More than a year later, on 14 November 1990, it sold the house for £34,000. That left, with arrears of interest, a shortfall of £23,921.92.
After giving up possession, the Wilkinsons moved into other accommodation. At some time they ceased living together and now have separate addresses. For over 12 years they heard nothing from the building society. But in November 2002 they were served with a claim for £46,865.99 and costs. That represented the shortfall on the sale in 1990 with interest.
The Wilkinsons say that the building society's claim is barred by section 20(1) of the Limitation Act 1980:
"No action shall be brought to recover…any principal sum of money secured by a mortgage or other charge on property (whether real or personal)…after the expiration of twelve years from the date on which the right to receive the money accrued."
They say that the right to receive the money accrued when they defaulted and the building society became entitled to take steps to recover its advance.
The building society says that section 20 has no application because, at the date when the action was brought, the money was not secured by a mortgage. The house had been sold long before and the building society had only a personal claim. As the mortgage was a deed, the relevant period of limitation was that prescribed by section 8:
"An action upon a speciality shall not be brought after the expiration of twelve years from the date on which the cause of action accrued."
It might appear to make little difference whether the appropriate limitation period is that prescribed by section 20 or section 8, because in both cases the period is 12 years. There is however a question, which I shall briefly touch upon at the end of my speech, as to whether the "date on which the right to receive the money accrued" is necessarily the same as that upon which the "cause of action accrued". But the main point taken by the building society is that in either case, the mortgage upon its true construction did not provide that in the event of default the whole balance of the advance should become repayable. Default gave it neither a cause of action nor a right to receive the money. Such a right arose only when the property was sold and the shortfall quantified. And that was just within the 12 year period.
The appeal therefore gives rise to two questions. One is a general question of law. Does section 20 apply in a case in which an advance is originally secured by a mortgage but the security is realised (or released) before proceedings are commenced? The second turns upon the construction of this particular and rather unusual mortgage deed, namely whether upon default the building society had a "cause of action" (section 8) or a "right to receive the money" (section 20) in respect of the outstanding capital.
The Court of Appeal, following its own previous decision in Bristol and West plc v Bartlett [2002] EWCA Civ 1181; [2003] 1 WLR 284, decided that section 20 applied. The reasoning of Longmore LJ (who gave the judgment of the court in the latter case) was succinct. He said (at p 297, para 30):
"Since the subsection refers to 'the date on which the right to receive the money accrued" it is much more natural to read the subsection as applying to mortgages existing on the date on which such right accrued."
This decision was followed by a differently constituted Court of Appeal in Scottish Equitable plc v Thompson [2003] EWCA Civ 225 ( 6 February 2003, unreported) without adding to the reasoning. In the present case counsel for the building society accepted in the Court of Appeal that the earlier decisions were binding on the court but Mr Jarvis QC submitted to your Lordships that they were wrongly decided. He said that as the Limitation Act bars the exercise of the remedy of action but does not destroy the underlying obligation, the right moment to ask whether the principal sum was "secured by a mortgage" was when the claimant wished to bring an action. That is the more natural meaning of the words. At the time when the action was brought, it was no more than a personal claim upon a specialty debt, governed by section 8. There could be no reason to apply a different provision of the Act because it had at some earlier time been secured by a mortgage. He referred to dicta by Auld LJ in Hopkinson v Tupper ( 30 January 1997, unreported) and by Mr Robert Englehart QC sitting as a deputy High Court judge in Global Financial Recoveries Ltd v Jones [2000] BPIR 1029 which lent some support to his submission. But these observations, although entitled to respect, were fairly casual. Auld LJ said no more than that the point was arguable and in the second case it was mentioned in passing without having to be decided.
I think that Bartlett's case [2003] 1 WLR 284 was rightly decided. Putting aside actions for the recovery of land, where questions of title are involved, English law attributes periods of limitation by reference to the cause of action which the claimant seeks to enforce. Thus there are periods of limitation for personal injury actions, defamation actions, other actions in tort, actions founded on simple contract, actions on a specialty and so on. This method of classification suggests that ordinarily time will run from the moment when the cause of action designated by the appropriate rule has arisen. It would be strange if the lender could then stop time running by his own act in exercising the power of sale. If, therefore, the cause of action when it arose was a claim to a debt secured on a mortgage, I do not think section 20 ceases to apply when the security is subsequently realised.
The second question is when the right to receive the moneys secured by the mortgage accrued to the building society. That turns upon the construction of certain provisions of the mortgage deed. It contains a legal charge with a proviso for redemption in conventional form. The borrower covenants in clause 4(a) to repay the advance by "the repayment", which are defined as the monthly sums specified. But the relevant clauses are 5(c) and (d):
"(c) The moneys hereby secured shall be deemed to become due within the meaning of section 101 of the Law of Property Act 1925 and all powers conferred on the mortgagee by the said Act or by this Legal Charge shall in favour of a purchaser be deemed to be conferred on and exercisable by the lender at the expiration of one calendar month from the date hereof.
(d) After the expiration of such period of one calendar month as between the lender and the borrower the lender may exercise such powers on the happening of any of the following events:
(i) on the giving to the borrower by the lender of a notice in writing requiring payment forthwith of the moneys hereby secured
(ii) if default shall have been made for one calendar month in the payment of some repayment… hereby secured…
(iii) if the borrower shall fail to observe or perform any of the rules and regulations of the lender or any of the covenants and conditions herein contained
(iv) if the borrower shall commit any act of bankruptcy or shall abscond or being a body corporate shall have a petition for winding up whether voluntary or compulsory presented by or against it or shall have a receiver appointed
(v) if the borrower shall pull down waste destroy or in any manner impair or lessen the value of the security or any part thereof
(vi) if the borrower shall fail to pay any chief ground rent or other sum charged upon the security or shall commit or suffer any breach of any covenant affecting the security."
Clause 5(c) has to be read against the background of section 101 of the Law of Property Act 1925, to which it refers:
"(1) A mortgagee, where the mortgage is made by deed, shall, by virtue of this Act, have the following powers, to the like extent as if they had been in terms conferred by the mortgage deed, but not further (namely):
(i) A power, when the mortgage money has become due, to sell…the mortgaged property …
(iii) A power, when the mortgage money has become due, to appoint a receiver of the income of the mortgaged property…"
These powers arise when the mortgage money has become due but their exercise is restricted by section 103, which provides that the powers may not be exercised save in certain specified circumstances. But section 101(3) provides that the provisions of the Act regulating the exercise of the statutory powers may be varied by the terms of the mortgage. In the present case, the conditions in section 103 have been replaced by those in clause 5(d).
There is no dispute that when the Wilkinsons defaulted, the power of sale became...
To continue reading
Request your trial
-
Allied Irish Banks Plc v Norton
...to established authority. Reliance is placed by the plaintiff on the unanimous House of Lords decision in West Bromwich BS v. Wilkinson [2005] 4 All ER 97. 31 It is also submitted on the part of the plaintiff that even if it could be said that the three facilities were governed by s. 11 of ......
-
McAteer & Bank of Ireland Mortgage Bank v Sheahan
...OF THE DEPARTMENT OF EDUCATION & ORS 2011 1 IR 362 2011 ILRM 389 2010/4/923 2010 IESC 57 WEST BROMICH BUILDING SOCIETY v WILKINSON 2005 1 WLR 2303 2005 4 AER 97 MERROW LTD v BANK OF SCOTLAND PLC & O'CONNOR UNREP GILLIGAN 22.3.2013 2013 IEHC 130 CONVEYANCING & LAW OF PROPERTY ACT 1881 S2 LAN......
-
Gotham v Doodes
...AC 584, [1980] 3 WLR 457, CA; affd [1981] 2 All ER 449, [1982] AC 584, [1981] 2 WLR 893, HL. West Bromwich Building Society v Wilkinson[2005] UKHL 44, [2005] 4 All ER 97, [2005] 1 WLR 2303; affg[2004] EWCA Civ 1063, [2004] All ER (D) 585 AppealPeter John Gotham, the trustee in bankruptcy of......
-
MBNA Europe Bank Ltd v HM Revenue and Customs
...to the relevant matrix of background facts known to the parties of the type classically explained by Lord Hoffmann in West Bromwich [2005] UKHL 44. Where the transaction under review forms part of a preordained chain or scheme of transactions, the other transactions in the chain and their o......
-
MAC Clauses Post August 2007 - What Do They Mean In The Current Financial Markets?
...Partners 85 F Supp 2d 69 (D. Mass. 2000) 3 Paragraph 3381 4 [1998] All ER (D) 321 5 [2006] EWHC 63 6 The Times 28 January 1998 7 [2005] 1 WLR 2303 8 [2002] EWCA Civ 1181 9 Paragraph 10 10 [2005] EWHC 2208 (Comm) 11 Paragraph 50 12 John M Reiss et al "Private Equity: the new world" http://ww......