Frederick Charles (Properties) Ltd v Cross Fire Co Ltd & Ors

Permission to appeal should be refused where the proposed appeal has no real chance of success. A person who owns or controls a company is not thereby the chargor under a charge granted by that company. Personal claims against a mortgagee or chargee do not, without more, create an interest in registered land capable of supporting cautions or notices on the register. An alleged overriding interest rejected in the underlying possession proceedings cannot provide such a basis. A notice challenge also provides no ground of appeal where the evidence establishes that sufficient notice was given.

The claimant held a registered first charge securing a loan made to Cross Fire Co Ltd in 1981. After substantial arrears arose, possession proceedings were brought. The charge was upheld, a possession order was made, and its priority over later transfers and charges was declared.

Subsequent orders removed cautions and notices from the register, vacated a priority search entry, and struck out Mr Gopee’s Defence and Counterclaim. Mr Gopee sought permission to appeal against those orders and sought to rely on further evidence. The central issues were whether the proposed appeals had any realistic prospect of success and whether the underlying claims could support entries on the register or survive the strike-out application.

1. First application. The proposed appeal against the order removing cautions and notices had no real chance of success. Mr Gopee’s claims against the claimant as chargee were, at most, personal claims. They were not interests capable of justifying cautions or notices on the register and did not establish an overriding interest. The finding in the possession proceedings made the alleged overriding-interest argument unarguable.
2. There was no good reason to pierce the corporate veil or to treat Mr Gopee as the chargor merely because he owned or controlled Cross Fire Co Ltd. The deputy judge had also dealt with the additional arguments, including the alleged risk concerning the sale proceeds, and had reached the right conclusions. Permission to appeal was refused.
3. Second application. The proposed appeal against the order vacating the priority search entry had no basis. The attendance note established that sufficient notice of the hearing had been given to Mr Gopee. There was therefore no basis to interfere with Hart J’s decision to proceed. The judge had considered rule 23.74 of the Criminal Procedure Rules. Permission to appeal was refused.
4. Third application. The proposed appeal against the strike-out order had no prospect of success. Claims relating to the original 1981 transaction were bound to fail. Claims seeking rescission or setting aside of the charge were hopeless after it had remained undisturbed for about 16 years. The other claims were statute-barred and had not been effectively assigned to Mr Gopee. Claims concerning the mortgagee’s financial account could not be pursued by him. The application to rely on further evidence therefore fell away.
5. All three applications were dismissed. There was no order for costs.

• Court of Appeal (Civil Division): In [2001] EWCA Civ 1463, Lord Justice Jonathan Parker dismissed all three applications for permission to appeal and the application to rely on further evidence.
• Court of Appeal (Civil Division): On 7 December 2000, Robert Walker LJ dismissed applications for permission to appeal against orders made by Lightman J and Judge Rich, holding that they had no reasonable prospect of success.
• Chancery Division: Judge Rich upheld the claimant’s legal charge, made a possession order and declared its priority over later transfers and charges. Hart J dismissed an application to set aside the possession order and later ordered removal of the cautions and notices and vacation of the priority search entry. Pumfrey J struck out the Defence and Counterclaim.