The plaintiffs appealed from an order striking out their claim for want of prosecution. The defendant’s property had been sold by the mortgagees, and the plaintiffs as assignees of their debt sought to recover the balance outstanding from the defendants. The defendant had been in default since 1984. The defendants said that the claim was in personalty only being under the assignment of the debt.
Held: There was a presumption that money recovered would be applied first in the repayment of interest. It was arguable that a 12 years’ limitation period under the general rule in Section 8 of the 1980 Act for actions on a specialty would not apply. Auld LJ said: ‘it is seriously arguable that when a mortgagee has re-possessed and has sold the security and is seeking to recover the shortfall, his claim is in simple contract whatever the nature of the instrument under which the debt was initially secured’.
As to the delay, the judge had considered the correct elements. The circumstances of a case, the issues and the length of delay, may entitle a court to infer that memories are likely to have become so dim as seriously to prejudice the case of a party and make continuation of the proceedings unfair. The defendant had suffered prejudice by the delay.
Judges:
Auld LJ
Citations:
[1997] EWCA Civ 882
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – Birkett v James HL 1977
Exercise of Power to Strike Out
The court has an inherent power to strike out an action for want of prosecution, and the House set down the conditions for its exercise. The power is discretionary and exercisable only where (a) there has been inordinate and inexcusable delay and . .
Cited – Barclays Bank v Miller CA 1990
In a case of inordinate, culpable and prejudicial delay where it is seriously arguable that the cause of action would be time-barred if fresh proceedings were issued, the better course may be to dismiss the action for want of prosecution and leave . .
Cited – National Westminster Bank Plc v Kitch CA 14-May-1996
An action to recover an overdraft debt which was secured by a mortgage is not itself a mortgage action. A claim based on a simple contract debt does not cease to be so simply because it is also secured by a charge. . .
Cited – Barnes v Glenton 1899
A contract debt had been then secured on land. The defendant pleaded limitation.
Held: The section, in not enlarging the period of recovery of a simple contract debt from 6 years to 12 years, was prohibitory and was enacted to limit existing . .
Cited – Rath v CS Lawrence and Partners (PJ Cook and Co) (a Firm) (Third Party) CA 1991
The plaintiff bought the property in 1982, relying on the defendant’s survey, which later proved incorrect having failed to identify subsidence. The writ was issued in 1984. Delays before the expiry of the limitation period led the defendant to . .
Cited – Shtun v Zaljejska CA 18-Apr-1996
Evidence of prejudice from inexcusable delay is to be examined carefully. It is not essential for a finding of prejudice in such a case that there should be evidence of the particular respects in which potential witnesses’ recollections have been . .
Cited by:
Cited – Bristol and West plc v Bartlett and Another; Paragon Finance plc v Banks; Halifax plc v Grant CA 31-Jul-2002
The defendants resisted claims by lenders for the payment of mortgage debts. In each case the lender had exercised the power of sale before issuing proceedings for possession. The defendants queried the limitation period applicable.
Held: The . .
Cited – Wilkinson and Another v West Bromwich Building Society CA 30-Jul-2004
The Society had repossessed and sold the mortgagors’ house in 1990. It knew then that there was a shortfall, but took no further recovery proceedings until 2002. What was the date from which the relevant limitation period began to run? Though the . .
Cited – West Bromwich Building Society v Wilkinson HL 30-Jun-2005
The Society had taken possession of a property in 1989. It located the defendants many years later and sought payment of the excess after deduction of the proceeds of sale, and for interest. The borrowers claimed the debt was expired by limitation . .
Lists of cited by and citing cases may be incomplete.
Land, Limitation, Litigation Practice
Updated: 05 November 2022; Ref: scu.141278
