Mentmore Golf Investments Limited v Michael Gaymer

For relief from forfeiture under section 146 of the Law of Property Act 1925, the relevant time is when proceedings seeking relief are issued. Later execution of a possession order does not retrospectively remove jurisdiction, although it remains relevant to the discretionary relief sought.

A mortgagee may bring its claim in separate proceedings. However, a claim may be struck out as an abuse of process where it forms part of a connected scheme to prolong oppressive litigation rather than protect an independent security interest.

Mentmore Golf Investments Ltd, mortgagee of a lease of a golf course, appealed against HHJ Murch’s decision in the County Court at Luton. The judge had struck out its claim for relief from forfeiture, alternatively granting summary judgment to the freeholder and lessor, Mr Michael Gaymer.

The leaseholder, Mentmore Greenland Ltd, had separately sought relief from forfeiture, but that claim was not appealed. The mortgagee’s proceedings were issued after a possession order had been made against Greenland but before it was executed. The appeal concerned the effect of execution under section 146 of the Law of Property Act 1925, the proper forum for the claim, and abuse of process.

1. Timing and jurisdiction. The appeal succeeded on the statutory timing issue. Sections 146(2) and 146(4) of the Law of Property Act 1925 have the same effect. It is sufficient that the lessor is proceeding to enforce forfeiture when the relief proceedings are issued. Later execution of a possession order does not itself deprive the court of jurisdiction.
2. Effect of execution. Execution remains relevant to the exercise of discretion. The mortgagee must obtain the possession order and possession set aside before relief can operate effectively, but a separate successful set-aside application is not a prior jurisdictional requirement.
3. Forum. The word “may” permits a mortgagee to apply in the landlord’s action or in separate proceedings. The statute imposes no mandatory requirement to proceed in the landlord’s action.
4. Abuse of process. The court applied the broad, merits-based approach in Johnson v Gore-Wood & Co. Identical parties, collateral attack and dishonesty are not essential prerequisites. The question is whether, in all the circumstances, the process is being misused, with unjust harassment or oppression being significant considerations. The mortgagee’s close connection with the tenant companies, knowledge of the forfeiture proceedings, unexplained inactivity and use of the late claim as a reserve means of prolonging the dispute made the claim oppressive and abusive.
5. The appeal was dismissed overall. The decision below was correct in striking out the mortgagee’s claim for abuse of process, although the reasoning differed.

• High Court (Business and Property Courts): Appeal from HHJ Murch’s County Court at Luton decision, which struck out the mortgagee’s relief claim or granted summary judgment. Appeal dismissed overall; the statutory timing ground succeeded, but the abuse-of-process ground failed.