Birmingham Midshires Mortgage Services Ltd v Sabherwal

A stay pending an application for permission to appeal to the House of Lords requires very exceptional circumstances. Such circumstances may exist where execution would destroy the subject matter of the proceedings or make the proposed appeal pointless. Where the asserted right concerns occupation of a particular property, alternative accommodation does not necessarily provide an adequate substitute. A possible negative equity and continuing interest accrual do not automatically outweigh the applicant’s need to preserve the property until the further appeal process is determined.

Birmingham Midshires Mortgage Services Ltd obtained a possession order against Sudesh Sabherwal in the Central London County Court. The order concerned her home, which was charged to the claimant by her sons. The Recorder set aside her consent to the charges for undue influence but held that her equitable interest had been overreached under section 70(1)(g) of the Land Registration Act 1925.

Her appeal to the Court of Appeal was dismissed on 17 December 1999. Permission to appeal to the House of Lords was refused, but a petition for permission remained pending. A writ of possession was due to be executed before that petition could be considered. The issue was whether the circumstances were sufficiently exceptional to justify a stay.

1. The application for a stay was granted. The court applied the established principle that a stay pending an appeal to the House of Lords is granted only in very exceptional circumstances, including circumstances in which execution would destroy the subject matter of the action or deprive the applicant of the means of prosecuting the appeal.

2. Execution of the writ would require Mrs Sabherwal to leave her home and the property would then be sold. Her case was that she had a right to reside in that particular property, arising from proprietary estoppel. The asserted promise related specifically to that property.

3. The possibility that her sons might provide alternative accommodation did not answer the claim. Accommodation elsewhere would not match the specific proprietary right which she sought to establish.

4. The possible negative equity in the property and the continuing accrual of interest did not outweigh the need to preserve the subject matter until the House of Lords had an opportunity to consider the petition and, if permission were granted, the substantive appeal.

5. The claimant was ordered to pay Mrs Sabherwal’s costs of the application, subject to legal aid assessment. The claimant was permitted to set those costs off against costs already ordered by the Court of Appeal, if necessary.

• Central London County Court: Mr Recorder Isaacs QC made a possession order on 21 May 1999, requiring Mrs Sabherwal to give up possession of the property.
• Court of Appeal (Civil Division): On 17 December 1999, the appeal was dismissed. The stay was lifted and permission to appeal to the House of Lords was refused.
• Court of Appeal (Civil Division): On 28 February 2000, Mr Justice Jonathan Parker granted a stay pending determination of the petition for permission to appeal and, if permission were granted, the appeal to the House of Lords.