Bluestone Mortgages Limited v Emma Louise Stoute & Anor [2025] EWHC 755 (Ch)

[2025] EWHC 755 (Ch)Case No CH-2024-000099IN THE HIGH COURT OF JUSTICEBUSINESS AND PROPERTY COURTS OF ENGLAND AND WALESCHANCERY APPEALSVenue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 31/03/2025
Before
THE HON MR JUSTICE MELLOR
Between
BLUESTONE MORTGAGES LIMITEDAppellant/EMMA LOUISE STOUTERespondents/ANDREW MICHAEL STOUTEDefendantsRETHINK MENTAL ILLNESS(a charitable company limited by guarantee operating asMENTAL HEALTH AND MONEY ADVICE MHMA (ENGLAND))Third Party
Roger Laville (instructed by TLT LLP) for Appellant for The Respondents and the Third Party did not appear and were not representedHearing Hearing date: 19 March 2025
APPROVED JUDGMENTThis judgment was handed down remotely by circulation to the parties’ representatives by email. It will also be released for publication on the National Archives and other websites. The date and time for hand-down is deemed to be Monday 31 st March 2025 at 2pm.THE HON MR JUSTICE MELLOR

Introduction

[1]This Appeal raises short but important issues of construction of the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020/1311 (the “Regulations”) in circumstances where a judgment or order relates only in part to a moratorium debt (what I will call a ‘mixed judgment’) or the security sought to be enforced secures both moratorium debt and other debt (i.e. ‘mixed security’).[2]The Appeal is from the Order of HHJ Parker, sitting in the County Court at Medway, dated 26 March 2024 which followed the hand down of his reserved judgment on 4 March 2024 (‘the Judgment’), following a hearing on 18 December 2023. In his very careful and clear Judgment, the learned Judge had to decide a number of issues and this Appeal concerns only one of those.[3]Before I can address the issue, I must set out a good deal of the background and the pertinent parts of the Regulations.[4]Shortly before the Appeal hearing I became aware of the Judgment of Sir Anthony Mann in Seculink Ltd v Forbes [2025] EWHC 524 (Ch), in which Sir Anthony reached the same conclusion as the Judge on an issue which provides the foundation for the issue in this case. Background[5]The Claimant/Appellant (‘C’) is a mortgage lender which made a loan of circa £300k to Mrs Stoute (D1) and Mr Stoute (D2) (together ‘the Ds’) under a loan agreement dated March 2018 (the “Loan Agreement”), drawn down in June 2018, secured by a first legal charge over their family home in Chatham (the “Property”). The Ds defaulted in August 2018, following which they have been consistently in arrears.[6]Having made demand on the Ds on 30 November 2018 under clause 7.13 of its general terms and conditions applicable to the Loan Agreement, C issued a possession claim in January 2019 and obtained a possession order in March 2019 (the “Possession Order”, as amended in April 2019) as well as a judgment debt in the sum of £315,923.68 (the “Debt”).[7]The Ds did not give possession of the Property to C and accordingly C had to obtain a series of warrants for possession and arranged eviction appointments. Those warrants were suspended on various grounds, including that the Ds intended to sell the Property, although the sale did not proceed.[8]Subsequently, on 25 August 2021, D2 entered a mental health crisis moratorium (a “MHC Moratorium”) under regulation 29 of the Regulations. D2 entered into new MHC moratoria on 17 November 2021, 18 June 2022, 13 October 2022, 29 July 2023 and 26 September 2023 after the previous moratoria lapsed.[9]D2 obtained these moratoria through the Third Party as “debt-adviser” under the Regulations.[10]When D2 entered into the Latest Moratorium on 29 September 2023, C’s solicitors (“TLT”) wrote to the Third Party requesting a review of that moratorium under regulation 17 on the following three grounds: i) The Debt was not a qualifying debt, because it was a secured debt under regulation 2. Accordingly, treating the Debt as a moratorium debt was a material irregularity under regulation 17 of the Regulations. ii) D2 was not receiving mental health crisis treatment within the meaning of regulation 28. Accordingly, D2 did not meet the relevant eligibility criteria when his application for a moratorium was made and the entire moratorium resulted from a material irregularity. Additionally, for the same reason the Latest Moratorium unfairly prejudiced the interests of C. iii) Even if D2 were suffering from a mental health crisis, the Latest Moratorium in any event unfairly prejudiced the interests of C.[11]The Third Party rejected C’s request by email dated 26 October 2023.[12]Accordingly, on 14 November 2023, C issued an application for, among other things,(a) a declaration that the Debt was not a qualifying debt with regard to the Latest Moratorium(b) an order cancelling the Latest Moratorium and(c) an order providing that C could enforce the Possession Order.[13]That application came before His Honour Judge Parker on 18 December 2024 and he handed down judgment on 4 March 2024, his order being finalised at a hearing on 26 March 2024. In the Judgment, HHJ Parker decided that: i) The Debt, to the extent that it does not amount to arrears, is not a qualifying debt, and therefore not a moratorium debt, in relation to the Latest Moratorium. ii) To the extent that it does amount to arrears, the Debt is a qualifying debt and a moratorium debt in relation to the Latest Moratorium. iii) The effect of those two points was the same conclusion as Sir Anthony Mann reached in his recent judgment in Seculink v Forbes [2025] EWHC 524 (Ch). iv) Nonetheless, despite the finding that the majority of the Debt is not a moratorium debt, C is precluded by regulation 7(7) of the Regulations from enforcing the Possession Order, for the reasons that the Judge gave at paragraphs 94 to 115 of his judgment. v) In summary, the Judge decided that when a debt consists of both moratorium debt and non-moratorium debt, and where security secures both moratorium debt and non-moratorium debt, the wording of regulation 7(7) of the Regulations compels the conclusion that enforcement of the non-moratorium debt would constitute “enforcement action in respect of a moratorium debt” for the purpose of regulation 7(6) and would therefore be prohibited under regulation 7(2) without permission from the court.[14]C agrees with the finding that the Debt consists of moratorium debt only to the extent that it is arrears. As at 21 February 2024, the arrears came to £108,395.78 out of a total of £415,309.15 (plus costs). However, C disputes, and sought to challenge on this appeal, the Judge’s conclusion that regulation 7 means that C can only enforce the Possession Order with permission of the court under regulation 7(2)(b).[15]I should add that since this appeal was first issued, in his order and judgment dated 14 November 2024, HHJ Parker held that the Latest Moratorium was materially irregular and unfairly prejudiced C and cancelled it.[16]A further point to note is that, in that latest judgment, HHJ Parker recorded that he received an email from D2 on the morning of the hearing which the Judge treated as an application by D2 for the possession order of 11 March 2019 to be suspended and/or for any related possession warrant to be suspended on the terms D2 proposed in that email for paying off the arrears in instalments. For that reason, the Judge made an order for that application to be listed before a District Judge on or after 6 January 2025. Mr Laville told me that that hearing took place, but was adjourned to 1 April 2025 so that it could be ascertained whether D2 would adhere to the payment plan he outlined. He also told me that D2 has not made any payments in accordance with the plan. I record that simply by way of background. It will be reconsidered by the District Judge at the forthcoming hearing. Preliminary points[17]Before I can turn to the Appeal, I must address two preliminary points.

D2’s application to adjourn

[18]The first is that D2 sent an email to the Court on 17 March 2025, the material parts of which read as follows:
‘I am writing to formally request an adjournment of the appeal case currently scheduled for March 19th. We have just received communication from TLT(16.10) today indicating that the relevant documentation will only be sent via first-class post tomorrow, leaving us with insufficient time to review the materials adequately. Given that we have not yet received the necessary documentation, it is impossible for us to prepare a comprehensive skeleton argument. As you are aware, the right to a fair hearing, as enshrined in Article 6 of the European Convention on Human Rights, necessitates that all parties have the opportunity to review all relevant materials and prepare their arguments accordingly.’
[19]I considered this informal application to adjourn at the start of the hearing and decided to continue with the hearing for the following reasons.[20]First, D2’s email materially misstates the facts. I was satisfied (from various documents including certificates of service either in the Appeal Bundle or on CE-file) that D2 and D1 were served with the following documents on the dates specified: i) Appellant’s Notice and Grounds of Appeal on 19 April 2024. ii) An Order of Marcus Smith J, the Appeal Bundle (which included Counsel’s Skeleton Argument) and the Bundle of Authorities on 31 October 2024. iii) The Notice of the listing of this hearing by letter dated 27 November 2024.[21]I acknowledge that, for this hearing, I was provided with the Appeal Bundle and the Authorities Bundle which had been updated to incorporate developments since the original versions were filed. Counsel’s Skeleton Argument had also been updated to reflect those developments but they did not impact on the issue raised in the Appeal. The main development was the outcome of the hearing before HHJ Parker on 22 October 2024 which led to his Judgment and Order dated 14 November 2024. It is reasonable to assume that the Ds were well aware of those long before this hearing came around. Two additional authorities were added, the principal one being the recent decision of Sir Anthony Mann in Seculink Ltd v Forbes. Although that judgment concerns the Regulations, it does not involve the issue raised in this Appeal.[22]So the documents referred to in D2’s email were the updated versions of the Appeal Bundle, Authorities Bundle and Counsel’s Skeleton Argument, and the Ds had received the materials central to this Appeal months ago.[23]The second reason for refusing an adjournment was because it is apparent from the judgments of HHJ Parker that D2 has a practice of making last minute informal requests for adjournments, which have consistently been rejected. See in the Judgment [3]-[4] and in the judgment dated 14 November 2024 [8]-[13].[24]Furthermore, the issue raised on this Appeal is a short question of law.[25]In all the circumstances, I reached the conclusion that D2’s application to adjourn was not made for any genuine reason but in an attempt simply to cause delay (which would also entail additional unnecessary expense).

Is this Appeal academic?

[26]In light of the development I summarised in [15] above, the second preliminary issue I raised was whether the Appeal was academic.[27]Mr Laville had anticipated this point. He made it clear that C nonetheless wished to pursue this appeal because i) there is a risk that D2 will seek to enter into a further moratorium based on different symptoms of mental crisis, and the Claimant does not wish to have to incur the cost of challenging such a moratorium afresh and ii) at a hearing on 20 January 2025, the county court at Chatham stayed enforcement of the possession order until 2 April 2025 so that the outcome of this appeal could be known.[28]In view of the very protracted history of this case, I accept that the risk referred to above is a real one and cannot be brushed aside. Furthermore, it is apparent that the issue raised in this Appeal is not peculiar to these particular litigants. As Mr Laville submitted, it is likely to arise in every situation involving a mortgage in arrears secured on real property where the debtor has entered into a moratorium, and particularly those involving mental health crisis treatment. As will be seen and as Sir Anthony Mann indicated in Seculink at [21], the drafting of the Regulations leaves a lot to be desired, so guidance from Court decisions is in demand.[29]In these circumstances I considered it right to address the issue raised by this Appeal. If I was wrong to do that, then the Court of Appeal has the power to set this judgment aside. Relevant provisions[30]Although regulation 7 must be read in the context of the Regulations as a whole, it is unnecessary for the purposes of this Judgment to cite more than the relevant parts of Regulation 7, which provide as follows (with emphasis added):
“7 — Effect of a moratorium (1) A moratorium has the effect specified in this regulation in relation to moratorium debt during a moratorium period. (2) Subject to paragraph (3), during a moratorium period a creditor may not, in relation to any moratorium debt, take any of the steps specified in paragraph (6) in respect of the debt unless— (a) these Regulations specify otherwise, or (b) the county court or any other court or tribunal where legal proceedings concerning the debt have been or could be issued or started has given permission for the creditor to take the step. (3) A court or tribunal may not give permission for a creditor or agent to take any of the steps specified in paragraph (6)(a) or (b). (4) Subject to paragraph (5), for the purposes of paragraph (2)(b), a court or tribunal may— (a) determine an application for permission to take a step specified in paragraph (6)(c) or (d) in any way that it thinks fit, (b) give permission subject to such conditions as it thinks fit, and (c) make such orders as may be necessary to give effect to the determination of the application. (5) A court or tribunal may only grant permission under paragraph 2(b) for a creditor or agent to take a step specified in paragraph (6)(c) … where the court considers that— (a) it is reasonable to allow the creditor or their agent to take the step, and (b) the step will not— (i) be detrimental to the debtor to whom the moratorium relates, or (ii) significantly undermine the protections of the moratorium. (6) The steps mentioned in paragraph (2) that a creditor is prevented from taking are any steps to— … (c) take any enforcement action in respect of a moratorium debt (whether the right to take such action arises under a contract, by virtue of an enactment or otherwise) … (7) A creditor or agent takes enforcement action if they take any of the following steps in relation to a moratorium debt— (a) take a step to collect a moratorium debt from a debtor, (b) take a step to enforce a judgment or order issued by a court or tribunal before or during a moratorium period regarding a moratorium debt, (c) enforce security held in respect of a moratorium debt, (d) obtain a warrant …” (a) these Regulations specify otherwise, or (b) the county court or any other court or tribunal where legal proceedings concerning the debt have been or could be issued or started has given permission for the creditor to take the step. (a) determine an application for permission to take a step specified in paragraph (6)(c) or (d) in any way that it thinks fit, (b) give permission subject to such conditions as it thinks fit, and (c) make such orders as may be necessary to give effect to the determination of the application. (a) it is reasonable to allow the creditor or their agent to take the step, and (b) the step will not— (i) be detrimental to the debtor to whom the moratorium relates, or (ii) significantly undermine the protections of the moratorium.

(d) obtain a warrant …”

The issue on this Appeal[31]To recap, this appeal proceeds on the basis that the Judge was correct to find that, whilst the arrears (of some £108k odd) were a moratorium debt, the non-arrears portion of the secured debt (amounting to around £300k) was a non-qualifying debt and cannot be a moratorium debt. It also proceeds on the basis that a debtor is in mental health crisis treatment such that a moratorium is valid.[32]It is not controversial that where the judgment or order which a creditor is wishing to enforce relates wholly to a moratorium debt, taking such a step would be enforcement action under regulation 7(7)(b). Likewise, where security is held solely in respect of a moratorium debt, enforcement of that security would be enforcement action under regulation 7(7)(c).[33]What, though, is the position where the judgment or order relates only in part to a moratorium debt (a “mixed judgment”), or the security secures both moratorium debt and other debt (“mixed security”)?[34]The conclusion of the Judge at paragraphs 109 and 114 of his judgment was that, although not all of the Debt is a qualifying debt, C nonetheless requires the court’s permission under regulation 7(4) in order to enforce the Possession Order. The approach of the Judge in more detail[35]The Judge considered the provisions of regulation 7(7)(b) and (c) in turn and I will do the same. The central issue on each provision turns on similar wording – in reg. 7(7)(b) whether a step is ‘regarding a moratorium debt’ and in reg. 7(7)(c) whether the security is held ‘in respect of a moratorium debt’ and whether those key words should be read narrowly or more broadly.[36]Since many of the points made on appeal were also made to and considered by the Judge, I consider it is necessary to set out his reasoning.[37]On reg.7(7)(b):
‘101 Regulation 7(7)(b) refers to "tak[ing] a step to enforce a judgment or order issued by a court or tribunal before or during a moratorium period regarding a moratorium debt”. 102 As Mr Laville pointed out, nothing forbids any step being taken in relation to a debt which is a non-eligible debt (and thus not a moratorium debt). He submitted that if a judgment for a non-eligible debt is contained in the same order as a judgment for a moratorium debt, there is nothing in the Regulations to prevent the enforcement of the former. He submitted that the ability to enforce cannot depend on the chance of whether the two judgments happen to be set out in a single document: what matters is the substantive nature of the obligation concerned. 103 The order of 11 March 2019 contained three paragraphs, awarding (1) possession of 16 Glamis Close, (2) £12,061.56 for mortgage arrears and (3) £315,923.68 mortgage debt. As I understand his argument, Mr Laville would say that regulation 7(7)(b) does not interfere with enforcement of the judgment for £315,923.68 set out at paragraph 3, but only with the judgment for £12,061.56 "mortgage arrears" in paragraph 2. 104 That seems correct so far as the money judgments are concerned (and assuming that the arrears are not included in the larger amount), but it does not address the enforcement of paragraph 1 of the order, which requires the Defendants to give possession of 16 Glamis Close. Either that paragraph is a "judgment or order...regarding a moratorium debt" or it is not. 105 Regulation 7(7)(b) could have been limited to refer to judgments and orders "for" a moratorium debt, but instead refers to judgments and orders "regarding" those debts. It seems to me that therefore it is not targeted only at money judgments; it goes wider. The possession order in this case was obtained on the grounds of arrears of instalments of £12,061.56. It could not have been obtained if those arrears did not exist. I believe it follows as a matter of ordinary language that it is an order regarding those arrears, just as an order for possession made against a tenant on grounds of anti-social behaviour would be an order "regarding" anti-social behaviour. 106 When considering whether that view of regulation 7(7)(b) is correct, I have looked at the other parts of regulation 7(7), which describe other types of enforcement action. It seems to me that regulation 7(7)(f) tends to support the view I have come to. Regulation 7(7)(f) refers to "start[ing] any action or legal proceedings against a debtor relating to or as a consequence of non-payment of a moratorium debt’
. A possession claim brought on grounds of mortgage arrears would surely be proceedings "relating to or in consequence" of those arrears. If the mortgage arrears were a moratorium debt, bringing such a claim would be enforcement action. It would then be unsurprising that enforcing a judgment for possession obtained on the same grounds would also be enforcement action. 107 Mr Laville sought to resist this view by submitting that if it would mean that every mortgage possession order based on arrears would be affected by a moratorium. I agree that is so, but it has not been demonstrated that this was not the intention of the legislation. 108 Mr Laville raised the further objection that if regulation 7(7)(b) did-have that effect, regulation 5(4)(a) would serve no purpose by its classification of some secured debts as non-eligible debt. I do not accept that: at the very least, it would mean that a creditor could claim fees, penalties and charges accruing during a moratorium period despite the terms of regulation 7(6)(b). 109 It is therefore my view that although not all of the debt owed to the Claimant is a qualifying debt, enforcement of the possession order requires the court's permission.’[38]On reg.7(7)(c):
‘111 Mr Laville submitted that security is a legal right, and is not just the instrument which creates it or the asset in relation to which it is given. He argued that there may be a single instrument creating a charge on a single asset, but nevertheless two different rights which exist independently of each other: a right in relation to the moratorium debt and a right in relation to the non-eligible debt. Regulation 7(7)(c) does not, he submitted, prevent the enforcement of the latter. 112 That does not persuade me. If I go back to the words of the legislation, I cannot avoid the conclusion that a single asset charged to the creditor in respect of both types of debt is “security held in respect of a moratorium debt”, albeit that it is security held in respect of a non-eligible debt as well. The regulation does not say, as it could have done, that it applies only to security held solely in respect of the moratorium debt. 113 The practical reality is that the security is indivisible. Either a secured creditor takes possession and sells, or it does not. If the sale takes place during the moratorium period, Mr Laville submitted that a creditor in the Claimant's position would have to apply the proceeds of sale towards discharging the non-eligible debt and to pay a further part of the proceeds, sufficient to discharge the moratorium debt, into a suspense account. If that happened, it would appear to me that the creditor had enforced the security it held in relation to the moratorium debt: the fact that the money realized was in a suspense account rather than the creditor's account would not change that.

(c) ’

C’s arguments[39]With that overlong introduction, I can now focus on the issue in this Appeal.[40]In his oral submissions (which were founded on his very useful and clear Skeleton Argument), Mr Laville made four points, plus a fifth point directed to a point the Judge made regarding s.36 of the Administration of Justice Act 1970.

The first point – ordinary language

[41]Mr Laville submitted that as a matter of ordinary language, a creditor is not taking a step to “enforce a judgment or order … regarding a moratorium debt” where it enforces only the non-moratorium part of a mixed judgment and it is not taking a step to “enforce security held in respect of a moratorium debt” where it enforces against mixed security only in respect of non-moratorium debt.[42]In support of this submission, Mr Laville made the point that the phrase “in respect of” is used extensively in the Regulations and applying a broad meaning to that phrase would make them unclear in many places, although he did not give any examples.[43]He supplemented this point by reference to Breeze v TSB Bank Plc [2024] EWHC 2427 (Ch) at [208]-[218], from which he derived two propositions, namely: i) Phrases such as ‘in respect of’ often connote a very broad meaning, but not inevitably. ii) Such phrases take their colour from the context in which they appear.[44]I agree entirely with those general propositions but they do not seem to me to support this rather linguistic first point. The difficulty with the linguistic argument is that it ignores the context in which these provisions sit.

The second point – purpose

[45]Mr Laville’s second point was that the Judge’s construction was contrary to the whole purpose of the existence of non-eligible debt if the existence of eligible debt nonetheless prevented the enforcement in relation to non-eligible debt.[46]To illustrate his point, Mr Laville posited a situation where the non-eligible debt arose from a successful civil claim for fraud (non-eligible debt by reason of regulation 5(4)(c)) which also included a successful claim for damages for breach of contract (eligible debt). His rhetorical point (as I understood it) was why should the existence of some eligible debt preclude enforcement of a judgment for fraud.[47]He also argued that it did not make sense to exempt a secured creditor by regulation 5(4)(a) (‘non-eligible debt’ means secured debt which does not amount to arrears in respect of secured debt) only to take the exemption away by regulation 7.[48]He submitted that, were the Judge’s conclusion correct, this would be a surprising result, because it would mean that the presence of a small amount of moratorium debt can prevent enforcement of any kind of non-moratorium debt. The same restriction would apply to other types of debt which the Regulations expressly make non-eligible under regulation 5(4) such as certain business debts, debts arising from fraud and debts consisting of liability to pay damages for death or personal injury. It cannot be that those making the Regulations would have intended to give express protection to creditors for those categories of non-eligible debts with one hand, while significantly undermining those protections with the other hand; still less in a manner which is so convoluted and so unclear.[49]However, in terms of ‘purpose’, I consider this point takes too narrow a view of the relevant purpose, as I explain further below.

The third point – formalism

[50]Mr Laville pointed out that the present case involved only one order and one mortgage deed, but he submitted that other situations could readily be envisaged where, for example, one charge was in respect of arrears (i.e. eligible debt) and a second charge was in respect of the principal (non-eligible debt) or that one judgment or order could relate to eligible debt and a second to non-eligible debt. His point was that in those latter situations, the charge or judgment order relating to non-eligible debt could be enforced, but that it would be pure formalism to hold that the position should be different where, as here, there is only one order and only one mortgage deed.[51]Perhaps a realistic example would involve a judgment for, say, £50,000 in respect of fraud committed by the debtor (non-eligible debt) and a second judgment for possession of the debtor’s house for failure to keep up with payments under his mortgage secured on that house (the arrears being eligible debt and the principal being non-eligible debt).[52]I confess I am not troubled by these examples for two reasons. First, because I am not convinced they are likely to occur in real life. Second, even if they do, the Court would have the ability to grant permission to enforce, say, the judgment for fraud if that was appropriate in all the circumstances.

The fourth point – Bennion principles of statutory interpretation

[53]Mr Laville also relied on the common law principles of statutory interpretation that by the exercise of state power a person’s(a) property and(b) rights in relation to law and legal proceedings should not be removed or impaired except under clear authority of law i.e. the Principle of Legality, as set out in Bennion, Bailey & Norbury on Statutory Interpretation, 8th Edition.[54]Applying those principles here, he submitted it is very far from clear that the Regulations are intended to remove C’s property rights in its legal charge or its right of access to the court to enforce the Possession Order.[55]A similar point was made to and accepted (in general terms) by Sir Anthony Mann in Seculink at [20]. I find myself in complete agreement with his response at [21]:
‘I do not doubt those principles in general terms, but I do not find them of much assistance in the present case. The present case involves the interpretation of Regulations which clearly interfere with the rights of individuals, within certain parameters, and the problem is in ascertaining how that works within the parameters set out the legislation. I consider that the resolution of the problems in this case lies more in understanding the language of the Regulations (whose drafting it is impossible to admire) and the rationality of the drafting in the light of the apparent object of the Regulations. Accordingly, while I have the Bennion principles in mind, I did not find that they helped.’

The fifth point – s.36 of the AJA 1970

[56]In [115] of his Judgment, HHJ Parker made a point concerning s.36 of the Administration of Justice Act 1970 which reinforced the decision he had reached that C did need permission to enforce its possession[57]Mr Laville’s answer was that the Judge’s s.36 point was not a good one. First, he said that s.36 is very flexible in its operation: it is true that s.36(2) provides the court with a wide range of options and the reference to ‘reasonable period’ in s.36(1) means, so he submitted, that the court would be able to take into account the effect of any moratorium. On that basis, he said the Judge’s s.36 point was not an answer.[58]For his second point, he submitted that the intention may have been to provide protection under the Regulations or via s.36 but it cannot have been intended to provide both together. He posited a situation where the security was not over a dwelling house, but over say, a car or commercial premises. However, I cannot see how this provides an answer to the Judge’s point. Analysis[59]I can deal with Mr Laville’s submissions relatively succinctly. I reached the clear view that the Judge’s interpretation was correct.[60]I agree entirely that the meaning of ‘regarding’ and ‘in respect of’ must be determined in their proper context. In fact, it is better to interpret the phrases in which those words appear as a whole in their proper context.[61]In addition to the points made by the Judge, it seems to me that, in his focus on the language of the Regulations, Mr Laville’s arguments lose sight of highly relevant context. It is worth noting the circumstances in which the issue arises and what C seeks to achieve. If C’s case on this appeal is correct, C would have the automatic right under the Regulations to enforce a judgment or order regarding a non-moratorium debt or to enforce security held in respect of a non-moratorium debt, whilst being unable to take either step in relation to a moratorium debt during a moratorium period. When I say ‘automatic right’, it means that no permission is required from the Court before those enforcement steps are taken, so there is no oversight of whether they would or might affect the mental health of the debtor.[62]Stripping out the technical language of the Regulations and using the facts of this case as an example, whilst the debtor is in mental health crisis treatment, C would have the automatic right to enforce as regards the approx. £300k debt but not in respect of the approx. £108k arrears. On C’s case, the permissible enforcement would necessarily entail eviction from and then the sale of the family home. In my judgment, there are very few events which could be more detrimental to the debtor’s mental health than those.[63]So a purposive interpretation of regs 7(7)(b) & (c) points firmly in favour of the interpretation reached by the Judge. Mr Laville’s fourth point is too abstract to have any contrary effect.[64]I entirely accept that the wording of the Regulations raises and leaves unanswered many questions, but, in my judgment, none of them deter me from concluding that the Judge was correct in giving the expressions ‘regarding’ and ‘in respect of’ their natural meaning and not the unduly narrow meaning advocated by C. Conclusion[65]In these circumstances, I dismiss the Appeal.[66]Any appeal from my decision would be a second appeal, in respect of which only the Court of Appeal can give permission.

order

‘115. If Mr Laville's arguments are right, a secured creditor would not need the court's permission to obtain and enforce a possession order against the home of a debtor who had a residential mortgage. The debtor could seek a stay or suspension execution of the possession order under s36 Administration of Justice Act 1970. The court could only grant an application under s36 of the 1970 Act if it were satisfied that the debtor was likely to able within a reasonable period to pay any sums due under the mortgage [fn: In assessing this, the court may ignore any liability to make early payment of the principal sum arising because of the mortgagor's default: s8 Administration of Justice Act 1973.] The court would ordinarily make it a condition of any order for stay or suspension that the debtor should pay the current mortgage instalment and make further payments to reduce the arrears. If a moratorium were in place and the arrears pre-dated it, those arrears would be a moratorium debt. The effect of the order would be to compel the debtor to make payments towards that moratorium debt. Such an order would be granted by the court at the request of the debtor, but as a response to the creditor pursuing its claim for possession. I would not have thought the makers of the Regulations would have intended that this could come about without the creditor having the court's permission to take enforcement action.’

Cited in 1 later judgment