Chantal Weldon v Godiva Mortgages Limited & Anor

On a return date for an injunction obtained without notice, the court may continue interim protection for a short, proportionate period where there is a serious issue to be tried and the balance of justice and convenience favours preserving the position. The court may allow time for a realistic refinancing proposal to be completed where repayment would discharge the secured lender’s legitimate interests and end the receivers’ function. A return-date hearing is not the proper occasion to determine a substantive dispute about the lawfulness, reasonableness or recoverability of receivers’ costs where that dispute was not raised in the application or hearing notice. Procedural delay in serving documents should be given no weight where it does not materially affect fairness.

The claimant, an executor of her late father’s will, sought continuation of an interim injunction preventing a mortgage lender and its appointed receivers from selling or contracting to sell the deceased’s property. The injunction had been obtained without notice. The defendants opposed continuation, arguing that there was no serious issue to be tried, that the claim was premature, and that any loss could be compensated financially.

The claimant relied on a proposed remortgage of her mother’s property to raise sufficient funds to discharge the mortgage arrears. At the return-date hearing she also sought to reduce the arrears by the amount of receivers’ costs and expenses. The central issues were whether the injunction should continue for a short period and whether the court should determine the costs dispute at that hearing.

1. Continuation of injunction. The interim injunction was continued for a further six weeks. The court was entirely satisfied that there was a serious issue to be tried. The substance of the case concerned whether the family home should be sold at all, rather than merely whether it might be sold below market value.
2. The balance of justice and convenience decisively favoured allowing a short further period for the proposed remortgage to produce funds sufficient to discharge the arrears. Repayment would address the lender’s legitimate interests and bring the receivers’ function to an end. The court directed a further hearing and did not make directions for steps such as service of a defence.
3. The claimant was given an opportunity, rather than being required, to file and serve within 14 days a short statement from her mother confirming her intentions concerning the remortgage and payment of the arrears. The defendants were given liberty to apply if that opportunity was not taken and an earlier hearing was considered necessary.
4. The court declined to rule that approximately £2,042 of receivers’ costs and expenses should be removed from the arrears. The issue concerned the lawfulness, reasonableness and recoverability of charges and had not been raised in the application notices or hearing notice. It was not appropriate to determine that substantive dispute at the return-date hearing, even if it had been formally raised. The possible application of Civil Procedure Rules 1998, CPR44PD §7.3, and any reservation of a later remedy were left open.
5. A two-hour delay in serving documents was noted but given no weight. The court made no determination on the co-executor’s position or the substantive costs dispute.

The judgment concerns a return-date hearing following an interim injunction made without notice on 7 February 2024. No appellate decision is stated.