Owen Morgan v Business Mortgage Finance 5 PLC

A High Court should not be used to obtain urgent relief which substantially duplicates or cuts across proceedings already before a county court. A without-notice application seeking immediate interference with enforcement requires cogent evidence of proper and timely steps to notify the affected party and give it an opportunity to be heard. The court must also identify a viable claim properly before it and assess the balance of justice and convenience. Where the underlying issues have been, or could have been, raised in existing proceedings, the ordinary rights of challenge and appeal should be used instead of a satellite application to another court.

The claimant sought an emergency without-notice injunction on the afternoon before execution of a warrant of possession relating to the parties’ mortgage dispute. He asked the High Court to order pre-action disclosure under CPR 31.16, treat the county court claim as void, and suspend the warrant until the defendant’s entitlement to enforce the mortgage and recover arrears had been established.

The mortgage enforcement proceedings had been considered at several stages in the Walsall County Court, including a December 2023 hearing at which the claimant was represented by counsel. The central issue was whether the High Court should intervene immediately in that county court enforcement process without notice to the defendant.

1. Application refused. The court refused the urgent without-notice application made by Form N244.
2. A court hearing an immediate without-notice application must examine what has been done, could have been done, and should have been done to notify the other party. The claimant had received the warrant on 25 January 2024, knew the execution date, had solicitors and counsel, and had ample opportunity to prepare and serve the application. The evidence did not establish a proper attempt to ensure that the defendant could be heard.
3. The proposed High Court relief was a satellite application arising from county court proceedings. The same questions concerning the defendant’s identity, entitlement to enforce the mortgage, and recovery of arrears had been capable of being raised, and had been raised, in the county court. It was wrong in principle to use the High Court to adjudicate issues currently being ventilated there. Rights of challenge and appeal supplied the appropriate procedural and substantive safeguards.
4. Applying the key questions for an urgent interim order, the court could identify no viable claim properly brought before the High Court and no arguable basis for treating a county court order as contrary to law. The balance of justice and convenience strongly and decisively favoured refusing any order interfering with execution of the county court warrant.