National Westminster Bank v Smillie

A court may require an appellant who has failed to file a defence, despite having an opportunity to do so, to serve a full defence by an unless deadline and direct that the appeal be dismissed on default. Failure to comply may justify striking out the appeal. Relief from the resulting debarring order and permission to amend may be refused where the default was intentional and personal, the proposed case raises new and far-reaching matters, and the litigation has already been prolonged. A party who has lost the right to defend cannot revive the proceedings by advancing a new defence, such as non est factum, which was absent from the original contest.

National Westminster Bank Plc brought possession proceedings concerning properties charged as security for loans made to Mrs Smillie. A possession order was made by District Judge Mitchell on 26 November 1998. On 20 January 1999, His Honour Judge Rice adjourned Mrs Smillie’s appeal and required her to file a full defence within 14 days, directing that the appeal would be dismissed if she failed to do so. No defence was filed.

On 28 March 2001, His Honour Judge Yelton refused relief from the resulting debarring order and refused permission to amend the grounds of appeal. Mrs Smillie applied to the Court of Appeal for permission to appeal against both orders, together with related applications for an extension of time and stays of execution. The central issue was whether the procedural orders and refusal of relief had been properly made.

Lord Justice Mummery held that the applications had no real prospect of success.

1. Judge Rice was entitled to require Mrs Smillie to serve a full defence within 14 days. Given the history of the dispute and her previous failure to file a defence despite having an opportunity to do so, he was also entitled to make an unless order providing that the appeal would be dismissed if she failed to comply.
2. Because no defence was filed, the appeal against the possession order was correctly struck out. The subsequent setting aside of the consent order relating to the debt did not remove the effect of the unless order.
3. Judge Yelton was entitled to refuse relief from the order debarring Mrs Smillie from defending the possession proceedings and pursuing the appeal. His decision properly took account of the conclusion that the failure was intentional and personal, the attempt to raise new and far-reaching matters concerning events in 1982, dealings with the properties which were viewed as attempts to avoid execution, and the excessive duration of the dispute.
4. The proposed new case amounted to a late defence of non est factum in relation to the legal charges. That issue had been absent from the original contest. Mrs Smillie no longer had any right to advance such a defence, and Judge Yelton was entitled to refuse permission to amend the grounds of appeal.
5. Permission to appeal was therefore refused. The applications were refused.

• Court of Appeal (Civil Division): On 9 October 2001, Lord Justice Mummery refused permission to appeal against the orders of His Honour Judge Rice and His Honour Judge Yelton. The related applications were also refused.
• Southend County Court: District Judge Mitchell made a possession order on 26 November 1998. On 20 January 1999, Judge Rice made an unless order requiring a full defence to be filed within 14 days, after which Mrs Smillie’s appeal was dismissed for default. On 28 March 2001, Judge Yelton refused relief from the debarring order and refused permission to amend the grounds of appeal.
• High Court: A consent order and judgment for £280,000 were set aside by Mr David Foskett QC on 4 February 1999. Master Ungley later gave summary judgment for the bank in the sum of £280,000 and interest in April 2000.