CH-2024-000151 - [2025] EWHC 2604 (Ch)

It should be remembered that the judge had applications to strike out both Greenland’s claim as tenant and Investments’ claim as mortgagee. He struck out and/or gave defendant’s summary judgment in respect of both. Since this appeal concerns only Investments’ action I will focus on his findings in relation to that.

In the judgment below the judge set out a chronology of the key events including the commencement of proceedings, and at paragraph 10 he noted that there was no application before him to set aside the possession order, which was a key plank of Mr Gaymer’s case. Then he turned to the legal position and set out sections 146(2) and 146(4) of the 1925 Act, relevant to the tenant and the mortgagee respectively. At paragraph 14 he observed:

“I think it has to be accepted in this case the landlord is no longer proceeding by action or otherwise because a possession order has been made and was executed by the High Court Enforcement Officer.”

Having set out passages from Billson v Residential Apartments [1992] AC 494 he concluded that once a possession order has been obtained and enforced a tenant has to apply to set aside the judgment before it can apply for relief under section 146 because “the landlord, as Billson shows, is no longer proceeding for the purposes of section 146.” (para 18). Although he refers there to the tenant, it is apparent from the context that he considered the same applied to a mortgagee. This reasoning flows from the decision in Billson, which decides when a landlord is and is not “proceeding” to enforce a forfeiture - see below.

Having thus concluded, the judge considered that since Investments was not a party to the forfeiture proceedings in which the possession order was made it would have to apply to set aside the possession order under CPR 40.9, which provides:

“A person who is not a party but who is directly affected by a judgment or order may apply to have the judgment or order set aside or varied.”

He then dealt with the position of the tenant. He held that it was seeking to re-litigate that which it had previously fought and lost on and that was an abuse. Alternatively he granted defendant’s summary judgment on the footing that the tenant had not applied to set aside the judgment for possession which was required by the authorities and insofar as the tenant was applying for relief from sanctions it had not fulfilled the requirements of CPR 3.9, especially noting the fact that the tenant had not offered unconditionally to pay the moneys it owed.

The judge then turned to the position of Investments (which he described as MGIL) and made his finding in paragraph 48:

“Turning to MGIL, the chargee in this case, its position is different of course because it was not a party to the underlying proceedings, but its difficulty I think is the learning set out in the Rexhaven decision. It on any understanding from a very early stage had notice of the proceedings because the defendant, when he was the claimant in the forfeiture claim, complied with the Civil Procedure Rules and gave notice of the claim. That I think must be a major hurdle in the path of MGIL at this stage seeking to advance a case for relief against forfeiture. To that extent it must be, I think, or can be capable of being analysed as abusive in line with the learning I have set out. If I be wrong though in that analysis, I conclude that summary judgment should be granted for the reasons advanced on behalf of the defendant. There is not an application to set the underlying possession order aside. That necessary prerequisite I think has to be spelled out. I do not think that on even the most benevolent reading of the particulars of claim as advanced by MGIL that I could construe it as bringing any claim for setting aside the underlying possession order. That I am afraid is a second hurdle in place of its application for relief against forfeiture succeeding.”

The Rexhaven decision to which he referred was Rexhaven Ltd v Nurse [1996] 28 HLR 241. The “learning” from Rexhaven which he seemed to apply was set out in paragraph 29 of his judgment where he quoted the following:

“When a mortgagee has promptly been given the copy writ and chooses to ignore it, in my judgment it does so at its peril and will not ordinarily be allowed subsequently to impugn a judgment although a judgment in default has been regularly obtained, otherwise there is not a good deal of point in the rules or not a great deal of efficacy in such a judgment.”