![CH-2024-000151 - [2025] EWHC 2604 (Ch)](https://backend.juristeca.com/files/emisores/logo_O3rEzCI.png){kind=logo}
Sir Anthony Mann
Sir Anthony Mann :
This is an appeal from a decision of HHJ Murch sitting in the County Court at Luton, in which he struck out a claim for relief from forfeiture made by Mentmore Golf Investments Ltd (“Investments” or “the appellant”), or alternatively granted summary judgment to the defendant/respondent (“Mr Gaymer”). Investments had applied as mortgagee for relief from forfeiture of a lease of a golf course known as Mentmore Golf Course, of which Mr Gaymer (the respondent to this appeal) is the freeholder and lessor. The lessee whose interest was forfeited was vested in Mentmore Greenland Ltd (“Greenland”) - the relationship between those two companies with similar names, such as it is, will become apparent later on. Greenland made its own application for relief from forfeiture as tenant in a separate action which was dealt with by HHJ Murch on the same occasion. He struck out that claim too, on the same basis - abuse of process, alternatively basis defendant’s summary judgment, and that part of his decision has not been appealed. What is therefore before me is an appeal by the mortgagee (Investments) only. Permission to appeal was given by Green J.
This appeal raises the following questions, broadly speaking:
Where a mortgagee applies to the court for relief from forfeiture of a lease after a possession order is made against the tenant, but before it is executed, does the subsequent execution (before any order granting relief) prevent the application for relief on the footing that the landlord is no longer “proceeding” for the purposes of section 146 of the Law of Property Act 1925 (“the LPA”) so that, in order to avoid that consequence, the mortgagee has to get the possession order and the possession set aside before it can proceed further?
If the answer to that question is Yes, should the judge nonetheless have considered whether the mortgagee’s problem could have been cured by the addition of an amendment seeking the setting aside of the possession order?
Insofar as the application for relief is sustainable as a matter of law, do the facts and the alleged close relationship between the tenant and Investments make Investment’s application an abuse of process?
Those are the principal points arising, though they are umbrellas for other significant legal points which arise under them. HHJ Murch decided points (a) and (c) against the appellant. The complaint about point (b) is that the judge failed to take it into account.
Investments was represented on this appeal by Mr John McGhee KC, and Mr Gaymer by Ms Joanne Wicks KC. Their respective submissions were very helpful and indeed impressive.