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Barclays Bank plc v Alcorn [2002] All ER (D) 146

Refusal of stay of execution of possession order relating to mortgaged property

Facts

A possession order was granted against the defendant’s property. The county court refused to stay execution of the possession warrant and the defendant appealed.

Issue

The defendant had argued that the charge did not cover a separate building on the property known as “The Cottage.” The defendant refused to give up possession of The Cottage despite the possession order. The lower court found that the charge did extend to The Cottage but the Bank could realise its security without having to sell The Cottage. Nevertheless, the judge refused to exercise his discretion to stay execution of the possession under section 36 of the Administration of Justice Act 1970. The defendant appealed against this decision.

Held

The Court is entitled to exercise its discretion under section 36 where it appears that the borrower can pay sums due within a reasonable time. Hart J assessed the evidence available and, given that it was unlikely that the property would be sold expeditiously and that further interest would accrue, did not consider that a sale would result in the mortgage being fully paid off. Moreover, section 36 did not enable the Court to suspend the possession order in relation to only part of the mortgaged property. Therefore, the court concluded that the defendant had not proven that the suspension of the order would allow her to repay the sums under the mortgage within a reasonable period, and the Court accordingly did not have jurisdiction under section 36.

256 words


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