Jameer v Paratus AMC

Under section 36 of the Administration of Justice Act 1970, the court’s discretion to suspend a mortgage possession warrant has a jurisdictional gateway. The evidence must show a likely ability to pay the arrears within a reasonable time. If that gateway is open, the borrower must provide frank, full and current information about income and expenditure on which the court can rely. The court may consider affordability, payment history and the reliability of the proposed plan. An appellate court should not re-weigh those matters. Intervention is justified only where the lower decision was plainly wrong or relevant and irrelevant factors were mishandled.

Ms Jameer mortgaged her home to Paratus AMC. Substantial interest arrears accrued, and a possession order and warrant were made after earlier payment arrangements were not maintained. Deputy District Judge Pithouse refused a further application to suspend the warrant. HHJ Cameron dismissed Ms Jameer’s appeal, considering that the overall mortgage commitments exceeded her means.

Permission for a second appeal was granted on the basis that Ms Jameer had to show that she could comply with the original suspension terms, including payment of the current instalments and £400 per month towards arrears. The central question was whether, on the further information supplied, HHJ Cameron had been wrong to dismiss the appeal.

1. Appeal dismissed. Lord Justice Lewison gave the judgment, with which Lord Justice Rix agreed.
2. The relevant jurisdiction was under section 36 of the Administration of Justice Act 1970. Leaving aside repayment of principal, the issue was whether Ms Jameer was likely to pay the interest arrears within a reasonable time. That requirement was a jurisdictional gateway to the court’s discretion: Zinda v Bank of Scotland [2011] EWCA Civ 706. The court proceeded on the assumption that the gateway might be open.
3. A borrower seeking further time must provide frank, full and up-to-date information about income and expenditure. The information must be sufficiently reliable to enable the court to assess the ability to comply with the proposed terms. Here, there was uncertainty about income, inconsistent tenancy and lodger documentation, material omissions from expenditure statements, arrears owed to other mortgagees and a failure to make payments even when funds were said to be available.
4. Both lower judges were entitled to take account of the poor payment history and the inadequacy of the proposed repayment plan. They had considered the relevant factors and had not relied on irrelevant matters. The weight given to those factors was a matter for the judges exercising the discretion.
5. An appellate court may interfere only if the decision was plainly wrong. The fact that another judge might have granted another opportunity did not meet that threshold. The court added that any further application to suspend the warrant should require permission from a circuit judge and might succeed if supported by a credible plan and proper evidence demonstrating compliance with the original suspension terms.

• Court of Appeal (Civil Division): On 29 October 2012, dismissed the second appeal.
• Dartford County Court: Deputy District Judge Pithouse refused to suspend the warrant again. HHJ Cameron dismissed the appeal against that refusal.