CPR 52.4 Oral Reconsideration: Email Requests, “Totally Without Merit” Gatekeeping, and Equitable Mortgage Backstops

1. Introduction

The appellants (borrowers) appealed an order of the High Court (Ritchie J) which struck out their email request for an oral hearing to reconsider a paper refusal of permission to appeal. The underlying dispute concerned mortgage enforcement and possession of a residential property in Swansea following expiry of an interest-only refinancing facility and alleged “enforcement events” under the mortgage terms. The litigation history was extensive and included repeated applications certified as “totally without merit” and the imposition of civil restraint orders.

The immediate legal issues before the Court of Appeal were procedural and remedial:

• Whether a CPR 52.4(2) request for oral reconsideration can properly be made by email without a formal application notice;
• Whether the High Court was entitled to strike out such a request on that basis and/or because of restraint orders;
• Whether the Court of Appeal should remit the matter or decide the reconsideration itself;
• Whether to admit fresh evidence, allow an additional ground of appeal, and grant interim relief to prevent sale.

2. Summary of the Judgment

The Court of Appeal allowed the appeal on a narrow procedural basis: it was wrong to strike out the borrowers’ request for oral reconsideration on the footing that it was not made by application notice. Because Ritchie J had not made an order under CPR 52.4(3) preventing an oral reconsideration request, the borrowers were entitled to make such a request, and it could be done by email.

However, the Court of Appeal then exercised the relevant powers itself rather than remitting the matter, and:

• Refused the borrowers’ applications to adduce fresh evidence and to add a further ground of appeal;
• Dismissed the oral reconsideration request on the merits (permission to appeal remained refused);
• Refused interim relief (a stay/injunction to prevent sale).

3. Analysis

3.1 Precedents Cited

No external case precedents are cited in the provided judgment text. The Court’s reasoning turns primarily on the structure and effect of CPR 52.4 and orthodox principles governing (i) admission of fresh evidence on appeal and (ii) interim injunctions (serious issue to be tried; balance of convenience; adequacy of damages; cross-undertaking).

3.2 Legal Reasoning

(a) CPR 52.4 and the “right to request” oral reconsideration

The Court treated CPR 52.4(1)–(3) as creating a clear sequence:

• Default: permission applications are determined on paper (CPR 52.4(1));
• Right to request: if refused on paper, the applicant may request an oral reconsideration (CPR 52.4(2));
• Exception / gatekeeping: if the judge considers the application “totally without merit”, the judge may order that there is no right to request reconsideration (CPR 52.4(3)).

The key procedural error identified was that the High Court struck out the request as not being in the form of an application notice, even though CPR 52.4(2) speaks in terms of a request, and the judge had not used the CPR 52.4(3) mechanism to prevent such a request. The Court stated expressly that an email can suffice; a formal application notice is not required.

This is practically significant: it distinguishes between (i) an application which must comply with formal application procedure and (ii) a “request” embedded within the appellate permission workflow.

(b) Civil restraint orders: issue left open

Ritchie J had also treated the request as barred because the borrowers were subject to limited civil restraint orders (LCROs) requiring permission before making applications. The Court of Appeal did not decide whether the LCROs applied to (i) the filing of the permission application or (ii) the CPR 52.4(2) request. The appeal was allowed only on the narrow basis that the “not an application notice” rationale could not justify strike-out.

The deliberate avoidance leaves future disputes possible where parties under restraint orders seek to characterise steps as “requests” rather than “applications”. The Court’s approach suggests, however, that any bar must be anchored in the correct procedural mechanism (here, CPR 52.4(3) for oral reconsideration; or an appropriately framed restraint order expressly capturing the step in question).

(c) Remittal vs deciding the reconsideration in the Court of Appeal

Having corrected the procedural error, the Court chose to determine the reconsideration itself, emphasising the overriding objective and the long-running nature of the dispute. The Court regarded the appellants as having had ample time and opportunity to present their case and considered further remittal an inefficient use of resources.

(d) Fresh evidence and new ground: “inchoate” challenge to execution

The borrowers sought to introduce material suggesting the attesting witness to a charge might not have signed and pointing to alterations/crossed-out signatures. The Court rejected this as insufficiently supported and of little weight, noting in particular:

• The witness-address point (business address rather than residential) was “of no substance”;
• The alleged telephone conversation with the witness was unsupported by a witness statement from her;
• The signature/alteration issue appeared to reflect a solicitor’s clarification to satisfy Land Registry registration requirements, not impropriety;
• The new contentions did not properly fit the scope of what had been pursued before (earlier emphasis was on seeking a stay rather than challenging the substantive possession basis).

(e) Equitable mortgage as an independent foundation for possession

A notable substantive point appears at paragraph 34: even if there were a defect in execution of the legal charge as a deed, the Court considered the property would in any event be subject to an equitable mortgage, because the 2020 mortgage documentation signed by the borrowers contemplated a first legal charge already held by the lender and funds were advanced.

The significance is twofold:

• It reduces the practical leverage of execution-based challenges where the documentary matrix and reliance/advance are clear;
• It reinforces the court’s skepticism about last-minute execution/attestation attacks raised years after the event.

(f) Interim injunction to stop sale: no serious issue + balance of convenience against

The injunction application failed on both merits and discretionary grounds:

• Serious issue to be tried: the Court was not persuaded the execution allegations raised a serious issue, especially given delay and the equitable mortgage point;
• Cross-undertaking: the borrowers could not offer a meaningful cross-undertaking in damages; suggestions of “equity” were “illusory” given indebtedness and impecuniosity;
• Prejudice to lender: continued inability to realise security, with a growing deficit;
• Adequacy of damages: alleged undervalue could be explored in later accounting/dispute about the mortgage balance;
• Proper forum: the injunction should have been sought in the separate “fourth claim” proceedings (where permission might also have been required).

4. Impact

4.1 Appellate procedure and access to oral reconsideration

The decision provides clear practical guidance: absent an express CPR 52.4(3) order, a party refused permission on paper retains the entitlement under CPR 52.4(2) to seek oral reconsideration, and email is a permissible method to make that request. This reduces the risk that litigants (especially unrepresented) are wrongly shut out by formality.

4.2 “Totally without merit” as a procedural switch

The judgment also underscores that “totally without merit” is not merely a label; it is a procedural switch that can remove the CPR 52.4(2) oral reconsideration step only if the court makes a CPR 52.4(3) order. Courts must use the correct mechanism rather than informal strike-out reasoning.

4.3 Mortgage litigation strategy: execution challenges and equitable safety nets

For mortgage enforcement disputes, the Court’s willingness to point to an equitable mortgage foundation signals that technical attacks on deed execution may not prevent enforcement where the lender can show agreement to charge and reliance/advance—especially when raised late and on weak evidence.

4.4 Interim relief against sale after possession

The decision illustrates the steep hurdles to restraining sale once possession is enforced: applicants must show more than asserted irregularities and must confront the cross-undertaking problem. Challenges framed as “family home” cases will not automatically defeat the adequacy-of-damages analysis when the property is already lost and the complaint is effectively about price/realisation.

5. Complex Concepts Simplified

• Permission to appeal (paper vs oral): many appeals require permission. If refused “on the papers”, CPR 52.4(2) normally allows you to ask for an oral hearing to reconsider that refusal.
• “Totally without merit” (TWM): a finding that an application has no realistic prospect at all. Under CPR 52.4(3), if the judge also makes the specified order, TWM can remove the right to an oral reconsideration.
• Limited / extended civil restraint orders: orders limiting a litigant’s ability to file further applications without permission, used to control repeated meritless applications. (In this case, whether those orders applied to the CPR 52.4(2) request was not decided.)
• Equitable mortgage: even if a legal charge deed is defective, equity may still treat the property as charged where documents and conduct show a clear agreement to provide security and money was advanced on that basis.
• Cross-undertaking in damages: if you ask the court to freeze someone else’s actions (like a sale), you usually promise to compensate them if it later turns out the injunction should not have been granted. If you cannot realistically pay, the court is less likely to grant the injunction.

6. Conclusion

Evans & Anor v Swansea Building Society confirms that a CPR 52.4(2) request for oral reconsideration is a procedural “request” that can be made by email and should not be struck out for want of a formal application notice; if the court wishes to block that route because the application is totally without merit, it must do so through CPR 52.4(3). Nevertheless, the Court of Appeal demonstrated that correcting procedural unfairness does not imply substantive merit: it refused permission on reconsideration, rejected late execution-based challenges and fresh evidence, noted the availability of an equitable mortgage foundation, and refused an injunction to restrain sale where merits, cross-undertaking, and the balance of convenience all weighed decisively against interim relief.