Bradford and Bingley Plc v Crichton & Anor

Permission for a further appeal from a High Court decision made on appeal is governed by Civil Procedure Rules r 52.13. It requires an important point of principle or practice, or another compelling reason. A challenge to mortgage arrears or the state of a mortgage account belongs in the possession proceedings and, where relevant, under s 36 of the Administration of Justice Act 1970. It cannot be used to attack a consent order in a further appeal. A party seeking release from undertakings should apply to the court that accepted them, while a changed-circumstances application to suspend possession should be made to the county court.

The building society sought possession as mortgagee of 95 Lambs Lane. A possession order made by Romford County Court in 1995 was later enforced after more than six years, but execution was repeatedly suspended on conditions intended to facilitate a sale.

On 24 April 2002, Mr Justice Peter Smith allowed Mr Crichton’s appeal to a limited extent by recording undertakings not to obstruct the sale, to sign sale documents, to vacate on exchange of contracts, and to preserve the property. The warrant was suspended until immediately before exchange, and permission for a further appeal was refused.

Mr Crichton applied to the Court of Appeal for permission, alleging excessive interest or unauthorised fines and disputing Mrs Ferguson’s entitlement to the property. The central issue was whether the application satisfied CPR 52.13 and whether those matters could properly be raised in this appeal.

Lord Justice Chadwick dismissed the application for permission to appeal.

1. Under Civil Procedure Rules r 52.13, permission to appeal to the Court of Appeal from an order made by the High Court on an appeal could be granted only if the proposed appeal raised an important point of principle or practice, or there was some other compelling reason for the Court of Appeal to hear it. The applicant’s notice did not address that statutory test.
2. The complaints about excessive interest, unauthorised fines, and the amount of the mortgage debt or arrears did not provide a proper basis for challenging the High Court’s consent order. A challenge to the mortgage account could have been raised in the county court during the possession proceedings, if supported by evidence and relevant to whether the arrears or debt could be paid within a reasonable time under s 36 of the Administration of Justice Act 1970.
3. The Court expressed no view on whether such a challenge remained open or would succeed. If the applicant sought release from the undertakings given to the High Court, he had to return to Mr Justice Peter Smith and demonstrate a change of circumstances justifying that relief. If he sought a fresh suspension of the warrant under s 36, he had to apply to the county court.
4. The effect of s 55(1) of the Administration of Justice Act 1999 was that the High Court judge could not grant permission for what would have been a second, or possibly third, appeal to the Court of Appeal. The present application was misconceived and was refused.

Order: application for permission to appeal dismissed.

1. Court of Appeal (Civil Division): On 4 November 2002, dismissed the application for permission to appeal under CPR 52.13.
2. High Court, Chancery Division: On 24 April 2002, allowed the appeal from the county court order to the limited extent of recording undertakings and suspending the warrant until immediately before exchange of contracts. Permission for a further appeal was refused.
3. Romford County Court: The deputy district judge granted permission to enforce the possession order on 9 October 2001. On 28 November 2001, the county court judge dismissed the appeal, subject to conditions facilitating sale of the property.
4. Romford County Court: A possession order was made on 22 February 1995.