Ropaigealach v Barclays Bank Plc

Section 36 of the Administration of Justice Act 1970 is procedural. It applies only where a mortgagee brings possession proceedings and permits the court to adjourn, stay, suspend or postpone possession. It does not make extra-judicial possession of a dwelling house unlawful or require a prior court order. A legal mortgagee’s common-law right to immediate possession remains unless the mortgage restricts it. Purposive interpretation cannot supply a restriction which Parliament did not enact. Words may be implied only where Parliamentary intention is plain and the insertion is not too substantial or at variance with the statutory language. Wider protection against mortgagee self-help is a matter for Parliament.

Seoirse and Melini Ropaigealach charged their dwelling house to Barclays Bank plc. Following a valid demand for repayment, the bank sold the property by auction without obtaining an order for possession. The appellant sought a determination that the bank had not been entitled to take possession without a court order.

The District Judge dismissed the originating summons summarily, and Mr Justice Longmore dismissed the appeal. In the Court of Appeal, the sale issue was not pursued. The central question was whether, assuming that the bank had taken possession, section 36 of the Administration of Justice Act 1970 prevented possession by peaceful entry without a court order.

Appeal dismissed unanimously. The factual question whether Barclays had entered into possession had not been tried. It could not properly have been disposed of summarily if it required discovery and cross-examination. The Court nevertheless decided the legal issue on the hypothesis that entry had occurred, since the issue was not wholly academic and a potential trespass claim could have followed.

1. Section 36 of the Administration of Justice Act 1970 is expressed to operate where a mortgagee brings an action claiming possession. Its powers of adjournment, stay, suspension and postponement are procedural powers exercised within existing possession proceedings. The statutory history showed that Parliament was addressing the problem arising from Birmingham Citizens Permanent Building Society v Caunt [1962] Ch 883, not the separate question of extra-judicial entry.
2. Under sections 85 and 87(1) of the Law of Property Act 1925, and section 27(1) of the Land Registration Act 1925, a legal mortgagee ordinarily acquires an immediate right to possession by virtue of the estate created by the mortgage. Section 36 did not abrogate that common-law property right.
3. Remon v City of London Real Property Co [1921] 1 KB 49 and Cruise v Terrell [1922] 1 KB 664 concerned statutory tenancies and the continuation of contractual quiet-enjoyment obligations under section 15(1) of the Increase of Rent and Mortgage Interest (Restrictions) Act 1920. They did not justify inserting a court-order requirement into section 36. Western Bank Ltd v Schindler [1977] Ch 1 confirmed that purposive interpretation cannot amount to judicial legislation: implied words require a plain statutory intention and an insertion not too large or at variance with the enacted language.
4. Clarke LJ added that the resulting anomaly and any wider restrictions on mortgagee self-help or sale raised policy questions for Parliament. Section 126 of the Consumer Credit Act 1974 did not assist because the mortgage did not secure a regulated consumer credit agreement within section 8(2). Henry LJ agreed with Chadwick LJ’s reasons. The appeal was dismissed, costs were ordered against the Legal Aid Board in the stated postponed form, and leave to appeal to the House of Lords was refused.

• Court of Appeal: dismissed the appeal and refused leave to appeal to the House of Lords.
• High Court: Mr Justice Longmore dismissed the appeal from the District Judge and refused leave to appeal.
• Cardiff District Registry: the District Judge dismissed the originating summons and ordered costs against the appellant.