Santander UK Plc v Wells & Anor

An application in extant proceedings should be made within a reasonable time after the applicant becomes aware, or should have become aware, of the need to apply. It should also be made sufficiently before any relevant hearing to allow the matter to be dealt with efficiently under the overriding objective.

Where a party has had a proper opportunity to raise a complaint, deliberately or negligently fails to do so, and provides no adequate explanation for the delay, pursuing the complaint later may constitute an abuse of process. A statutory provision permitting a determination after a relationship has ended is a factor in the exercise of discretion; it does not remove the need to consider delay and procedural justice.

Santander had sold property jointly owned by the defendants after enforcing its charge and had paid surplus sale proceeds into court. Hertford Solutions LLP claimed priority to those funds under a second charge. Philip Chave also intervened, but his claim was struck out because he had no locus to challenge the Hertford loan agreement.

Graham Wells then sought permission to file an application, witness statement and Points in Answer out of time, intending to pursue relief under sections 140 A-C of the Consumer Credit Act 1974. He had known of the proceedings for a substantial period, had previously supported Mr Chave, and had not raised his own complaints when Hertford enforced its charge or during the earlier proceedings. The central issues were whether the application was timely, whether it constituted an abuse of process, and whether intervention should be permitted.

1. Application out of time. In the absence of a specific time requirement in the CPR, an application in extant proceedings should be made within a reasonable time after the applicant becomes aware, or should have become aware, of the need to make it. It should be made sufficiently far in advance of any relevant hearing to permit the hearing to proceed efficiently. These principles accord with the overriding objective.
2. Delay and evidential responsibility. Mr Wells had prepared a witness statement for use in the proceedings by August 2016 and was plainly interested in the destination of the sale proceeds. His silence about when he became aware of the proceedings justified an inference that he had known of them well before making the application. The court was not required to place the evidential burden on Hertford to prove his state of knowledge.
3. Abuse of process. Mr Wells had ample opportunity to raise his complaints about the 2014 loan agreement when Hertford sought to enforce its charge and during the proceedings concerning the funds in court. He had instead supported Mr Chave while allowing the dispute between Mr Chave and Hertford to proceed. In the circumstances, pursuing the complaints at that stage was an abuse of process, and the application to intervene was refused.
4. Consumer Credit Act 1974. Section 140 A(4) was relevant because a determination could be made despite the relationship having ended, but it was only a factor in deciding the appropriate order. Section 140 B(9) and the allegation of unfairness did not, by themselves, justify intervention. The Points in Answer were not a suitable substitute for proper pleadings.
5. Alternative case-management conclusion. Even if the application had not been too late, intervention in the High Court would not have been permitted. The existing proceedings had effectively ended after Mr Chave’s claim was struck out. Any fresh claim under sections 140 A-C should have been brought in the County Court, which was the more suitable forum.