|
|
Key Rules: CPR Parts 55 and 73 and the PDs supplementing them
|
| 21.1 |
Under Part 55 mortgage possession claims commenced since 15 October 2001, whether in respect of residential or commercial property, are generally heard in the county courts. The only exceptions to this are (a) a relatively small number of cases where either the county court has no jurisdiction or where the claimant can certify, verified by a statement of truth, the reasons for bringing the claim in the High Court and (b) any remaining transitional cases, i.e. mortgage possession claims commenced before 15 October 2001, and proceedings to enforce charging orders commenced prior to 25 March 2002, as to which directions should be sought from the assigned Master.
|
| 21.2 |
PD 55 emphasises that High Court claims are to be regarded as exceptional and that while the value of the property and the size of the claim may well be relevant circumstances they will not, taken alone, normally justify the issue of proceedings in the High Court. High Court proceedings may, however, be justified where there are complicated disputes of fact or where a claim gives rise to points of law of general importance. Where a mortgage possession claim is issued in the High Court it is assigned to the Chancery Division. The provisions of Part 55 will apply to it.
|
| 21.3 |
The most common instance where, notwithstanding Part 55, the Chancery Division will retain jurisdiction in a mortgage possession case is where proceedings are brought seeking an order for sale under an equitable charge, ordinarily that created by a charging order, but where part of the relief claimed ancillary to the order for sale is an order for possession. Although rule 73.10 now provides that proceedings to enforce charging orders by sale should be made in the court in which the charging order was made, that provision is expressly subject to that court having jurisdiction. The jurisdiction of a county court to enforce a charge is confined to those cases where the amount secured by the charge falls within the relevant county court limit (currently £30,000) and it follows that in many cases where judgments have been obtained in county courts and charging orders made enforcement will nonetheless require proceedings in the High Court.
|
| 21.4 |
Such proceedings, as well as proceedings to enforce charging orders made in other divisions of the High Court, are assigned to the Chancery Division. The evidence required in support of such proceedings is that set out in paragraph 4.3 of PD 73.
|
| 21.5 |
There remains in the Chancery Division a number of mortgage possession proceedings issued prior to Part 55 coming into force (on 15 October 2001). Of those proceedings, some may never have been adjudicated upon and many will have given rise to suspended possession orders, in respect of which applications to issue execution may arise in reducing numbers.
|
| 21.6 |
Practitioners should also have regard to the fact that 'old' proceedings which have not been adjudicated upon and which were issued prior to 26 April 1999 will fall within the 'automatic stay' provisions of paragraph 19 of PD 51 so that a claimant wishing to proceed with such a claim will have to apply to lift the stay. Such an application may be made at the same time as the application for possession but the court will require sufficient evidence to allow it to determine properly whether it is appropriate to lift the stay. The application to lift the automatic stay should form one of the heads of relief in the Application Notice seeking possession. If the evidence in support exhibits a mortgage account sufficient to show what has happened on the account since the last time the claim was before the court (ex hypothesi from before 26 April 1999) no additional evidence will be likely to be necessary in support of the stay application.
|
| 21.7 |
The Chancery Division retains its jurisdiction in respect of redemption and foreclosure of mortgages and kindred matters.
|
| 21.8 |
Rule 48.3 and paragraph 50 of the Costs PDpdp-48 (Amount of costs where costs are payable under a contract) are of particular relevance to mortgage claims.
|
| 21.9 |
In summary, where under a mortgage a mortgagee has a contractual right to his or her costs, the court's discretion in respect of costs under Section 51 of the Supreme Court Act 1981ActsActs should be exercised so as to reflect that contractual right. The power of the court to disallow a mortgagee's costs sought to be added to the security stems not from section 51 but from the power of the courts of equity to fix the terms upon which redemption will be allowed. A decision by the court to refuse costs to a mortgagee litigant may be a decision in the exercise of the court's discretion under section 51, or pursuant to its power to fix the terms upon which redemption will be allowed, or a decision as to the extent of the mortgagee's contractual right, in a given case, to add costs to his or her security, or any combination of these three things. A mortgagee is not to be deprived of a contractual or equitable right to add costs to his or her security without reference to the mortgagee's contractual or equitable rights to such costs and without a proper adjudication as to whether or not the mortgagee should be deprived of his or her costs.
|