Facts:

This was a High Court hearing of an ex parte application for an ‘emergency injunction’ to stay an eviction which was due to take place on the following day. The application was based on Mr Morgan's desire for clarity on the defendant's legitimacy to enforce a mortgage and collect arrears.

The original mortgage was taken out in September 2006. Some events took place in 2018 resulting in Business Mortgage Finance 5 PLC appearing on the Land Register. There was then a possession order made in June 2023, followed by Mr Morgan’s application to set it aside in September 2023, thereby bypassing the county court. In December 2023, Mr Morgan lost, and a warrant of possession was served on 25 January 2024, with an eviction date set for 15 February. 

Decision:

The High Court refused the application on the grounds of procedural fairness due to the absence of any proper attempt to notify the defendant and the inappropriate use of the High Court to interfere with ongoing county court proceedings. 

Fordham J. started by explaining that an application the afternoon before the execution of a warrant raises some concerns, especially when the case is being tried at a lower level. Mr. Morgan was represented by solicitors and counsel. He ruled that “Courts will always be concerned, when they hear "without notice" applications, about what has been done, what could have been done and what should have been done to notify the other party, especially when the Order that is being sought is one taking immediate effect. I am unable to be satisfied that this application has been approached in a procedurally fair way.”

The evidence did not satisfy the Court that there had been a proper attempt to ensure that the Defendant could be heard.  There were many opportunities for the Claimant to do so and his solicitors could have assisted him. The lack of proactive steps made it impossible for the Court to rule favourably.

The Judge even explained that “if those steps had fallen on deaf ears, or there had been a lack of response, then the Court would have been able to take that into account.”

Fordham J. also highlighted that there was a fundamental problem in requesting the High Court to intervene while there were live county court proceedings. The Court restated that such a matter should have been raised in the county court which provided an adequate forum for it. The fact that the

Claimant ‘lost confidence in’ in the county court is not sufficient, as the due process and protections have been safeguarded by that court. The Judge viewed the attempt by the Claimant as a manner to “cut across the county court proceedings.” The order requested would have been against the balance of justice and convenience. 

Implication:

This judgement highlights that courts are not willing to adjudicate on issues that are being dealt with by another court, unless there is a real issue of due process. It also demonstrates that challenging eviction orders must be done in due course and not wait until the last minute by using an emergency proceeding. Those procedures are available in exceptional circumstances cases. Similarly, ex parte application should be used only under specific circumstances. In the case at hand, there was no reason for either the emergency injunction or the ex parte application as it would be against fairness.