Mortgage Express v Butcher & Anor

In deciding whether to extend time for appealing, the court must have regard to Civil Procedure Rules CPR 3.9 and the Overriding Objective. A prompt assurance that the applicant will not appeal, followed by a change of position after the deadline, may weigh strongly against an extension where the respondent has reasonably relied on finality. The court should assess the prejudice on each side. Serious personal consequences for the respondent may outweigh the applicant’s interest where refusal does not destroy its security but merely postpones enforcement until a future event. A conditional appeal dependent on unrelated litigation, without a clear timetable, may also be unfair and inconsistent with procedural finality.

Mortgage Express sought possession of a property charged as security for its lending. The first respondent had purchased the property from the second respondent after promising that the second respondent could remain there for life, but had not disclosed that promise to Mortgage Express. The Bournemouth County Court held that the second respondent had an equitable right to occupy the property and that the right took priority over the mortgage charge.

Mortgage Express initially stated that it would not appeal. After the time for appealing had expired, it changed position and made any appeal conditional on the outcome of unrelated proceedings. It then applied for an extension of time and permission to appeal. The central issue was whether the extension should be granted under Civil Procedure Rules CPR 3.9 and the Overriding Objective.

Disposition

The Court of Appeal dismissed Mortgage Express’s application for an extension of time for appealing and for permission to appeal. The reasons were given after the application had been dismissed on 19 December 2011.

1. The court exercised its discretion having regard to CPR 3.9 and the Overriding Objective. The relevant circumstances included the respondent’s modest means, the considerable uncertainty and mental anguish caused by the threatened loss of his home, and the absence of any default on his part.
2. Mortgage Express had promptly informed the respondent that it did not intend to appeal. The respondent was therefore entitled to rely on the expiry of the appeal period and to arrange his affairs on the expectation that his right to occupy would have priority. Changing that decision more than two months after the deadline, and making the new intention conditional on unrelated litigation, sought to impose an uncertain timetable inconsistent with the procedural rules and the respondent’s reasonable expectations.
3. The relative prejudice also favoured refusal. A successful appeal would have had a devastating effect on the respondent. Refusing an extension would not deprive Mortgage Express of its security, but would merely defer its realisation until the respondent’s death or earlier permanent departure from the property.
4. The undertaking requiring the respondent to make a will and notify Mortgage Express of his death provided additional, although limited, support for refusing the extension. The application was accordingly refused.

• Court of Appeal (Civil Division): [2012] EWCA Civ 18. Application for an extension of time for appealing and permission to appeal dismissed.
• Bournemouth County Court: District Judge Mildred made an order on 22 July 2010 declaring that the second respondent had an equitable right to occupy the property for life or until permanently ceasing to reside there, with priority over Mortgage Express’s charge. Permission to appeal was refused.