Ropaigealach v Barclays Bank plc
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[1999] 4 All ER 235
[2000] QB 263
[1999] 3 WLR 17
[1998] EG 189
(2000) 32 HLR 234,
| Ropaigealach v Barclays Bank plc | |
|---|---|
 | |
| Court | Court of Appeal |
| Decided | 18 December 1998 |
| Citations | [1998] EWCA Civ 1960 [1999] 4 All ER 235 [2000] QB 263 [1999] 3 WLR 17 [1998] EG 189 (2000) 32 HLR 234, |
| Transcript | EWCA Civ 1960 |
| Case history | |
| Prior action | Appellant also failed on earlier appeal in the Cardiff District Registry of the High Court before Longmore J. |
| Subsequent action | none |
| Case opinions | |
| Held: "if it were possible to construe section 36 by affording mortgagors protection whether or not the mortgagee chose to obtain possession by self-help or legal action, I for my part would do so. I have however been persuaded that it is not possible." | |
| Decision by | Chadwick LJ |
| Concurrence | Henry LJ Clarke LJ |
| Keywords | |
| Mortgage; arrears; sections 8 & 36 Administration of Justice Act 1970; court discretion; mortgage excluding section 103 of the Law of Property Act 1925 (and entitling rapid sale after unsettled demand if property could be entered); self-help of lender | |
Ropaigealach v Barclays Bank plc [2000] QB 263 is an English land law case, concerning mortgage arrears and a rare mortgage over a family home which had a right to enter a home (temporarily vacant) and sell it without a court order.[1]
On 8 October 1996, the bank informed Mr Ropaigealach by letter that it was taking steps to realise its security. A letter in the same terms was sent to Mrs Ropaigealach at a different address. The bank wrote again, on 7 November to Mr and Mrs Ropaigealach at their home, the security, 16 Windsor Esplanade. Before the end of the year the bank sold it at auction.[2]
The Ropaigealachs did not receive the last letter from Barclays (with final demand for payment, as earlier, warning the property would be sold but more imminently) because they were having it renovated and were away. They heard of the impending nature of the sale through a neighbour.[2]
Judgment
Chadwick LJ gave the leading judgment, he said that it was impossible to be satisfied that Parliament had intended, when enacting section 36 of the Administration of Justice Act 1970, that the mortgagee's common law right to take possession by virtue of his estate should be exercisable only with the assistance of the court. The only conclusion as to Parliament's intention which the court could properly reach was that which could be derived from the circumstances in which the section had been enacted, the statutory context in which it appeared, and the language used, and all pointed in the same direction.[1]
This meant there would be no declaration to stop Barclays' repossession (taking place without a court order). The legislation could not be "otherwise construed", that is interpreted to provide that protection.[3][2]
It does however strike me as very curious that mortgagors should only have protection in the case where the mortgagee chooses to take legal proceedings and not in the case where he chooses simply to enter the property.[2]
It was not possible to infer that Parliament intended to cover such a case (i.e. use creative purposive interpretation).[2]
Clarke LJ held under statute at the time, borrowers only have protection in the case where the lender has begun legal proceedings and not in the case of arrears where the lender simply has the right reserved where a demand is unpaid and chooses [if legally entitled] to enter. He added[2]
the problem... in a case where the mortgagee has already exercised his power of sale, without having taken possession...The Law Commission has made proposals to reform the law in this field. It is for Parliament to decide whether to accept those or other proposals.
