Deutsche Bank Suisse SA v Khan & Ors (2013)
The court discharged an order restoring possession of properties to their mortgagors pending their appeal against the refusal of their application for postponement of a possession order, where the original order had been made without the mortgagors providing full and frank disclosure.
The court reconsidered its order that possession of certain properties be restored to the mortgagors (K), the defendants in the main proceedings, pending their appeal against the refusal of their application for postponement of a possession order in favour of the mortgagee bank (D), the claimant in the main proceedings.
D had stated that it would not stay execution of the possession order, dated July 12, 2013, pending K's proposed appeal. The writs of possession were executed on July 23. K contacted the court that day, seeking that the appeal be considered immediately and that appropriate orders be made for the restoration of the status quo ante. They stated that violence was used in the execution of the writ, that various occupiers were turned out on to the street in their nightclothes and that they were refused permission to take personal possessions. On July 24 the court granted K permission to appeal against the possession order and made the order under reconsideration.
(1) When the court made the orders on July 24 it did so having noted that K stated that possession had been taken without notice, which had to be read as meaning that D had failed to give notice under the Mortgage Repossessions (Protection of Tenants etc) Act 2010 s.2. That founded the court's conclusion that there appeared to have been a breach of the rules governing the execution of possession orders and led it to believe that the execution of the writ had been carried out to forestall the applications for permission to appeal and a stay. However, K's solicitor had not stated that he possessed copies of notices which D said had been served, and he must have known that if it were alleged that the notices had not been served, D would have disputed that. Further, K did not inform the court that D had stated that it would not stay its application pending their appeal. Those were serious breaches of the duty of full and frank disclosure and, had the court known what it knew at the instant hearing, it would not have made the order that it did. Indeed, it might well not have had jurisdiction to make it since the execution of a possession order brought an end to the court's jurisdiction to suspend or postpone it under the Administration of Justice Act 1970 s.36 (see para.5 of judgment). (2) The question then was whether there had been a failure to serve notice under s.2 of the 2010 Act. Since service was disputed, the court was not in a position to determine that. However, the evidence that it had not been served was not particularly convincing and, had there been a dispute about proper service under s.2, it would not have been appropriate simply to make a mandatory order restoring possession to K (para.5). (3) In relation to the manner of the execution of the writs, remedies for malpractice in their execution would lie elsewhere and it was not a ground on which execution of writs should or should be set aside (para.6).
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26 Jul 2013
Court of Appeal
LTL 30/9/2013 :  EWCA Civ 1149