Sun Banking Corporation Plc v John Everest Hooper and Another

Where a warrant of possession has been suspended exceptionally on strict payment terms, a significant failure to comply terminates the suspension in accordance with those terms. The Court of Appeal will not repeatedly adjourn permission applications to continue suspending the warrant, particularly where the applicant has already been given an opportunity to comply and the proposed appeal has no merit. The court must not assume the county court’s function or impose continuing costs and delay on other litigants and the respondent.

John Everest Hooper sought permission to appeal from an order of Birmingham County Court, made by His Honour Judge Coles on 12 January 2001, refusing to suspend a warrant of possession concerning his mortgaged home. The Court of Appeal had previously suspended the warrant in exceptional circumstances, subject to strict monthly payment terms. Those terms were not met. The central issue was whether the court should nevertheless adjourn the application and grant a further suspension because of the applicant’s explanations and asserted future ability to pay.

1. Disposition. The application for permission to appeal was refused. The application to suspend the warrant was also refused, and the extension of time was not allowed. The Court confirmed that the earlier suspension had terminated by reason of default.
2. The earlier suspension had been granted only in exceptional circumstances and on strict terms. The applicant was required to pay £2,743.53 to the bank on the third day of each month. The order expressly provided that, if the obligation was not met on any occasion, the suspension would terminate.
3. The applicant accepted that the payment obligation had not been met. The mortgage account confirmed significant defaults during the latter part of 2000. These were not merely technical failures. The applicant’s explanations, including alleged banking failures and misunderstandings, did not justify treating the defaults lightly.
4. There were no merits in the proposed appeal. The applicant accepted that, in view of his previously very poor payment record, he had no ground for appealing the county court’s order. The exceptional indulgence granted in April had given him an opportunity to make the required payments, but he had not done so.
5. The Court of Appeal could not periodically hear further persuasive applications from a litigant seeking continuation of the suspension. That would risk taking over a function properly belonging to the county court, be unfair to other litigants awaiting hearings, and impose further costs on the respondents. The court therefore declined to adjourn the matter or order any further suspension.

• Court of Appeal (Civil Division): Refused permission to appeal from the Birmingham County Court order of 12 January 2001 and declined to continue suspending the warrant of possession.
• Birmingham County Court: His Honour Judge Coles refused the application to suspend the warrant of possession and suspended the order for seven days to permit an application to the Court of Appeal.