Wilson v Halifax Plc

A mortgagee in possession does not breach its duty merely because valuers employed by it are not independent. The relevant question is whether the valuers approached the valuation properly, considered only relevant matters, and acted competently and professionally. There is no general legal requirement to advertise an accepted offer for 21 days or to use a five-day notice procedure. Provided the mortgagee obtains a proper price, the duty owed to the mortgagor is satisfied. An appellate court will not ordinarily receive fresh evidence or interfere with factual findings supported by evidence, particularly where the trial judge saw and heard the witnesses.

The claimant owned a property secured by mortgages granted to the Halifax. After possession proceedings, the Halifax sold the property for £80,000. The claimant alleged that the property had been substantially undervalued and that the sale involved collusion, defective marketing, inadequate documentation, and breach of the mortgagee’s duty to obtain the best price reasonably obtainable.

A Deputy High Court Judge dismissed the claim with costs on 20 December 2001 and refused permission to appeal. The claimant applied to the Court of Appeal for permission, challenging factual findings and raising points concerning valuation, marketing, documentary evidence, and alleged human rights issues.

Application refused.

1. The proposed appeal substantially challenged findings of fact. The Court of Appeal would not normally receive fresh evidence and would not interfere with findings supported by evidence or justified by the evidence. It also had to bear in mind that the trial judge had seen and heard the witnesses and observed their demeanour.
2. The mortgagee in possession was required to obtain the market value or the best price reasonably obtainable at the time of sale. The fact that the valuers were employed by the Halifax did not, by itself, establish a breach. The relevant question was whether they approached the task on a proper basis, had regard only to relevant matters, and acted competently, properly, and professionally. The judge had been entitled to accept the Halifax’s valuations and to find that the open market value was about £80,000.
3. The request for transcripts concerning alleged admissions was refused. The evidence was uncertain, the point was not included in the grounds of appeal, and the judge had stated that his conclusion would have been unchanged without the relevant expert evidence.
4. Complaints about offer notifications, document handling, and marketing procedures did not establish that the judge’s valuation finding was wrong. Advertising an accepted offer by a five-day notice was permissible but was not legally required. There was likewise no legal basis for requiring an accepted offer to be advertised for 21 days before completion.
5. Since the mortgagee had obtained a proper price, no breach of duty was shown. No viable human rights issue or other compelling ground was identified. The application for permission to appeal was refused.

• Court of Appeal (Civil Division): refused the claimant’s application for permission to appeal.
• Chancery Division: on 20 December 2001, a Deputy High Court Judge dismissed the claim with costs and refused permission to appeal.