Mortgage Express v Christopher Ramsay

On an appeal against orders made in a party’s absence, a serious procedural irregularity does not by itself make the decision unjust. The appellant will ordinarily need to show a real prospect that the substantive decision would have been different. The court may instead re-list or set aside an application under CPR 23.11, and the power may be exercised after an order has been perfected. Delay may justify an extension of time where the party did not know of the order and acted promptly after discovering it. A transfer of enforcement to the High Court may be justified where repeated attempts to enforce possession have failed. Human rights and equality arguments require a realistic evidential and legal foundation.

Mortgage Express obtained possession orders concerning residential property and later applied to transfer enforcement to the High Court. The defendant also sought a stay of eviction. On 8 December 2021, the Central London County Court heard both applications in the defendant’s absence, dismissed the stay application, granted the transfer application, and declared the stay application totally without merit.

The defendant applied out of time for permission to appeal, alleging that the hearing had not occurred, that the applications had not been served, and that serious procedural irregularities and human rights violations had occurred. The High Court considered the extension of time, the merits of the proposed appeal, and whether the order made without the defendant’s attendance should be set aside.

1. Extension of time and appeal test. The application was brought promptly after the defendant became aware of the order. The delay was serious and significant, but there was a good reason for it. Time was extended. Under CPR 52.6, permission required a real prospect of success or another compelling reason.
2. Procedural irregularity. Under CPR 52.21(3)(b), the appeal court may intervene only where a serious procedural or other irregularity caused an unjust decision. In the circumstances of this case, the defendant ordinarily still had to show a real prospect that the substantive decision would have been different. A more exceptional case, such as bad faith or an absence of any genuine hearing, might justify a different approach.
3. Alternative procedure. CPR 23.11 provides a route to re-list an application heard in a party’s absence, and the power may be exercised after an order has been perfected. The court proceeded with the appeal, but the outcome would have been the same if the defendant had applied under CPR 23.11.
4. Transfer application. Any technical failure to serve the transfer application did not cause the necessary injustice because the defendant knew of the application and had been able to address its substance. Repeated unsuccessful eviction attempts justified transfer to the High Court. Under the Courts Act 2003, s 99 and Sch 7, para 5, a High Court Enforcement Officer may use reasonable minimal force and the police must assist.
5. Stay application. The use of form N54A did not establish a sustainable ground for a stay. The form was not restricted to organised protests, had not resulted in eviction, and would not be used in the proposed High Court enforcement. The equality, Article 8 and Article 6 arguments had no real prospect of success.
6. Disposition. The orders dismissing the stay application and granting transfer to the High Court remained in force. The order declaring the stay application totally without merit was set aside. Permission to appeal was otherwise dismissed.

• High Court (King’s Bench Division): Appeal from orders made by HH Judge Richard Roberts in the Central London County Court on 8 December 2021. The High Court extended time, set aside the totally-without-merit order, and otherwise dismissed the application for permission to appeal.