Ikeji v Bank of Scotland Plc

A party cannot make a second application for permission to appeal to the same court, on the same grounds and evidence, immediately after permission has been refused. Such an application is an impermissible collateral attack and an abuse of process.

An interim injunction restraining a mortgagee’s sale will ordinarily be refused where damages provide an adequate remedy, there is no serious issue to be tried, or the balance of convenience favours the mortgagee. A mortgagee must take reasonable care to obtain the best price reasonably available, but is not required to achieve a perfect or market valuation.

The Bank obtained possession of the applicant’s mortgaged property and later obtained permission to issue a warrant of restitution. On 5 August 2019, HHJ Evans-Gordon refused permission to appeal against the relevant county court orders, including after rejecting the argument that the possession warrant had been unlawfully executed.

Two days later, the applicant filed a second, materially identical application for permission to appeal before the same judge. It was struck out as an abuse of process. The applicant then sought permission from the High Court to appeal that strike-out order and also sought an injunction restraining the Bank’s sale of the property.

The central issues were whether the second permission application had properly been struck out and whether an interim injunction should restrain the mortgagee’s proposed sale.

1. Permission to appeal. The application was refused. The second application for permission to appeal was made to the same judge, on the same grounds and evidence, only two days after the first application had been finally determined. It was therefore an impermissible collateral attack and an abuse of process. The applicant could not use the second application to reopen the earlier refusal, and had not pursued judicial review: [2003] EWCA Civ 183.
2. The applicant’s grounds wrongly challenged the earlier possession and restitution orders, rather than demonstrating that the later strike-out order was wrong or unjust because of a serious procedural or other irregularity. The court was entitled to determine the application on paper under CPR rule 52.4(1). The fresh evidence was irrelevant to the strike-out issue and did not satisfy the Ladd v Marshall criteria.
3. The application for relief from sanctions was refused. The breach of the case-management order was serious and significant, there was no good reason for it, and the application was made only two clear days before the hearing.
4. Injunction. The existing interim injunction was discharged and the Injunction Application dismissed. The ordinary interim-injunction questions were whether there was a serious issue to be tried, whether damages were an adequate remedy, and where the balance of convenience lay. Damages would adequately compensate the applicant for any proven undervalue, and the Bank could satisfy any judgment.
5. A mortgagee must take reasonable care to obtain the best price reasonably available at the time. The duty is not an absolute obligation to realise true value or obtain the highest possible price. The Bank had obtained several independent valuations, tested the market, and was not plainly on the wrong side of the line. There was consequently no serious issue to be tried and the balance of convenience firmly favoured the Bank.
6. Both applications were certified as totally without merit. No claim form had been issued, so there was no action to strike out.

• County Court at Guildford: HHJ Evans-Gordon refused permission to appeal on 5 August 2019 and struck out the materially identical second Appellant’s Notice as an abuse of process on 7 August 2019.
• High Court (Queen’s Bench Division): permission to appeal against the strike-out order was refused, and the interim injunction application was dismissed.