Wednesday, 17 August 2011

Jayashankar v Lloyds TSB plc [2011] EW Misc 9 (CC): sticking the head back on

The problem with execution is that once it’s done it cannot be undone.  This applies to property as well as people.  Once a bank has re-possessed your house, it’s difficult to put you back.  After all, the bank might have sold it.
This is the problem at the root of this case.  Mr Jayashankar faced an application for possession from Lloyds when he went seriously into the red on his mortgage.  He tried to have it set aside but failed; Lloyds therefore took possession.  Later that day.  They don’t hang about.
21 days later he appealed the decision.  Pointless?  Now he was out?  Or would the appeal put him back?  A real quandary for Lloyds, who would not be able to do anything with re-possessed properties if it feared an appeal.  And a dilemma for the Court, which may face dozens of such applications on a regular, recurring basis…
Section 36 of the Administration of Justice Act 1970 is, astonishingly for an Act, clear.  Ish.  The Court can stay or suspend possession proceedings when making the order for possession, or before the order is executed.   Mr Jayashankar was seeking a stay at his appeal post-execution.  It was too late for Mr Jayashankar to apply for a stay; he should have done so when applying for the order to be set aside. 
It doesn’t mention anything about appeals, though.  Could the Court deal with an appeal post-execution?  It would have the effect of overturning the Act, because the Court could end up ordering the possession to be stayed after execution.  And there was an unreported case in the White Book (the bible for court practice) that suggested a court could do that.
However, the Court decided, ultimately, it couldn’t.  It would be too difficult.  Once someone has an order, they can execute it.  The idea of them having to wait 21 days for an appeal that might never take place would be wrong – it is interfering with someone’s right to justice.  The disappointed party, like Mr Jayashankar, has the opportunity to seek a stay at the hearing date whilst he appealed the order itself; that is sufficient for the defaulter’s human rights to be considered in balance with those owed money.
Nevertheless, we may hear more on this.  The County Court judge dealing with the matter pretty much begged the Court of Appeal to look at the case – he himself could not grant permission, it was already an appeal from a deputy District Judge’s order – as he could see a flood of such cases advancing.  It may well be that the Court of Appeal comes to the same decision, but at least it would provide binding clarity for the DJs dealing with such things on a daily basis.

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