First Plus Financial Group Plc v Pithers [2013] EWCA Civ 59

Case No B5/2012/1154[2013] EWCA Civ 59
IN THE COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM LEEDS COUNTY COURT
(DISTRICT JUDGE WOODHEAD)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 16 th January 2013
Before
LORD JUSTICE MUMMERY
Between
First Plus Financial Group PlcRespondentPithersApplicant
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
for The Applicant did not appear and was not represented for The Respondent did not appear and was not represented
Judgment
[1]This is a renewed application by Mr Malcolm Pithers for permission to appeal. The decision which he wishes to appeal is that of HHJ Gosnell in the Leeds County Court dated 16 January 2012. The judge heard and dismissed an appeal that Mr Pithers had brought against the earlier order of District Judge Woodhead on 1 June 2011. That was an order for possession on the grounds of mortgage arrears. The appeal notice asks that the judge's order below be set aside on grounds that are explained by Mr Pithers in his skeleton argument.[2]In order to appeal to this court, Mr Pithers appreciates that he needs permission, which he did not obtain from the court below and which he then had to apply to this court for. There were particular difficulties in him obtaining permission because this is a second appeal. The first appeal against the order of the District Judge was to HHJ Gosnell and that was unsuccessful. The appeal to this court is a second one, and permission for a second appeal cannot be given by this court unless it is satisfied that the appeal would raise an important point of principle or practice or that there is some other compelling reason for the Court of Appeal to hear it. So it is a more difficult hurdle to surmount in order to obtain permission for a second appeal.[3]I should mention before I go more into the history of the matter that earlier this week an application was put before me by the Civil Appeals Office. It had been received from Mr Pithers. He was seeking an adjournment of today's hearing on the ground of illness, that he was not going to be well enough to attend the hearing. I refused that application in the light of the earlier history of this matter. An earlier hearing of the renewed application had been adjourned on a direction by Stanley Burnton LJ, who said, in giving reasons for granting it, that it would be extremely unlikely that any further adjournment would be granted. That adjournment had been granted on the same grounds that Mr Pithers now seeks a further adjournment. The position (as was made clear to Mr Pithers) is that if, unfortunately, he is not well enough to attend and is unable to obtain representation on his behalf, then the court has little choice but to deal with the matter on the basis of the papers, and fortunately there is in the papers a quite detailed account by Mr Pithers of the reasons why he challenges the possession order.[4]The position today is that this matter was listed for hearing not before 10.30. Mr Pithers has not turned up, and therefore I propose to deal with it on the basis of the written submissions which he has made in the papers.[5]On that, the submissions were first considered on paper by Lewison LJ when he considered the application and refused it on 25 September 2012. He refused a stay of execution unless within a 14-day period he had sought to renew his application. As he has done that, the stay was to continue until this application was disposed of. The reasons given by Lewison LJ for refusing the application are very helpfully set out in six short paragraphs. I will read them and then comment on them. The reasons he gave were:
"1. A mortgagee has a right to possession from the inception of the mortgage, although the court has a discretion not to order possession if any arrears can be paid within a reasonable time. 2. It is admitted that there are arrears outstanding under the mortgage. Instalments are accruing at the rate of £789 [per] month, with the consequence that a monthly payment of £100 (even if it had been agreed with the mortgagee) would not ever keep up with the current payments let alone reduce the arrears. 3. In those circumstances the judge was entitled to find on the facts that the arrears could not be discharged within a reasonable time. 4. The judge directed himself correctly, and his conclusion was one that he was entitled to reach on the facts. 5. The proposed appeal raises no important point of principle or practice nor is there any compelling reason why the appeal should [be] heard by the Court of Appeal. 6. However, since this proposed appeal concerns the family home I am prepared to stay execution until any renewed application is heard."
[6]In my view, the comprehensive reasons set out by Lewison LJ for refusing the application are unanswerable. In particular, I rely on his fifth point, that this is a second appeal and it is not apparent from anything that is said in his written submissions by Mr Pithers that there is any general or important point of principle or practice raised by this case. It was decided on its own facts in relation to his mortgage with this mortgagee, and the state of arrears and the problems there were in keeping up current payments, let alone reducing the arrears. As Lewison LJ says, the fact that the appeal concerns a family home makes it no doubt something of considerable importance to the people who are involved, but that by itself does not amount to a compelling reason why the appeal should be heard by this court. There is no point of law raised by the appeal that has not already been settled by earlier authorities, and there is nothing special about the facts in this case which would constitute a compelling reason for the appeal being allowed to proceed.[7]For those reasons the application is refused.

Order

Application refused

Cited in 1 later judgment