First National Bank plc v Syed [1991] 2 All ER 250

Borrower in severe mortgage debt unable to gain a suspension of possession order

Facts

The defendants fell into mortgage arrears in relation to their family home. The plaintiffs obtained an order for possession. The defendants appealed against an order made by a Registrar whom had refused a stay or suspension of the order for possession.

Issue

Under section 36 of the Administration of Justice Act 1970, the Court has the power to stay or suspend the execution of an order for possession for such period as is reasonable to allow the borrower to pay off arrears within a reasonable time whilst also paying current instalments. Upon granting leave to appeal, Butler-Sloss L.J. expressed disquiet that an order for possession be suspended in this case on a condition of payment on terms which were manifestly beyond the means of the Defendants. Upon appeal, the Defendants raised the further issue of the agreement between the parties being a regulated agreement under the Consumer Credit Act 1974.

Held

Section 129 of the 1974 Act provides for a potential time order remedy. Under this section, the Court is able to order payment by instalments, where the Court considers it just to do so. In the Court of Appeal, Lord Justice Dillon held that, considering the long history of default by the defendants’ and the absence of any evidence which suggested an improvement in the defendants’ finances, it was not just to make such an order. Furthermore, there was no prospect of the defendants making any repayment of the principal without a sale of the property. Accordingly, the appeal was dismissed.

266 words