Bank of Scotland Plc v Copeland

Permission to appeal may properly be granted where the available material raises a substantial issue requiring examination on its merits, particularly where the alleged debt itself may be affected by transactions connected with the underlying dispute. A limitation issue concerning a counterclaim does not necessarily determine whether a claimant remains entitled to the sum claimed. The court may need to examine the true state of the parties’ accounts, including transactions across related accounts and the claimant’s authority for payments.

The claimant sought possession of the defendant’s home under a mortgage and alleged that approximately £121,780 remained secured by the mortgage. The defendant’s Defence and Counterclaim were struck out by HH Judge Maloney QC on 2 May 2014. Judgment was entered for the claimant on the counterclaim on limitation grounds, and permission to appeal was refused.

On the defendant’s renewed application for permission, the central issue was whether the material disclosed an arguable case that the claimant was owed anything, having regard to payments received, further payments made in connection with an allegedly fraudulent investment scheme, and the claimant’s alleged knowledge of the fraud.

1. Permission granted. Permission to appeal was granted against the decisions of HH Judge Maloney QC dated 2 May 2014. The appeal would permit examination of the merits with both parties involved and without undue further delay.
2. The limitation issue did not necessarily dispose of the substance of the claimant’s claim. Even if limitation affected a claim by the defendant, the court would still need to consider whether the claimant was owed anything.
3. The available documents raised an arguable issue about the true state of the account. The claimant appeared to have received substantial sums in connection with the investment scheme and from the sale of the defendant’s former home. A further payment of approximately US$190,000 to Mexico might therefore bear on whether any debt remained and whether the claimant was authorised to make that payment in the circumstances alleged.
4. The claimant could not necessarily determine the existence of a remaining debt by considering only the account secured by the mortgage. The relationship between the two accounts and the relevant transactions required examination.
5. Directions were given for a one-day appeal hearing. The claimant was to prepare the bundle if the defendant remained without solicitors. Ms Watson was not permitted to represent the defendant or make applications on her behalf, and the defendant was strongly urged to obtain independent professional advice and representation.

• High Court (Queen’s Bench Division): Permission to appeal granted against the decisions of HH Judge Maloney QC dated 2 May 2014.
• Bury St Edmunds County Court: The Defence and Counterclaim were struck out; judgment was entered for the claimant on the counterclaim on limitation grounds; permission to appeal was refused.