Engage Credit Ltd v Robinson

Factual and Procedural Background

The litigation concerns a mortgage agreement entered into on 17 May 2007 between the parties relating to residential premises at The City. The mortgage was for £200,000 on an interest-only basis with a 23-year repayment term. Over nearly 16 years, repayments were largely not made, and the appellant (and others) continued to occupy the property despite possession orders. The proceedings have been protracted, with an initial possession order granted on 3 March 2009. The appellant sought a stay of enforcement of possession orders, which was dismissed by the Master of the Chancery Division on 22 August 2022 and subsequently by the Chancery Judge on 1 December 2022. The current appeal concerns leave to appeal against the latter order and the refusal of further stays of enforcement.

Legal Issues Presented

1. Whether leave to appeal should be granted against the order of the Chancery Judge dismissing the stay of enforcement application.
2. Whether the appellant demonstrated special circumstances justifying bypassing the requirement to first seek leave to appeal from the court below.
3. Whether an extension of time to apply for leave to appeal or bring the appeal should be granted under the relevant court rules.

Arguments of the Parties

Appellant's Arguments

• The appellant sought a further stay of enforcement of the possession order until approximately May 2023.
• Relied on a document entitled "Heads of Terms" and a deed of trust as grounds for the stay.
• Asserted special circumstances to justify applying directly to the Court of Appeal without first seeking leave from the court below.

Respondent's Arguments

• Opposed the grant of leave to appeal and any further stay of enforcement.
• Argued that there were no special circumstances to justify bypassing the lower court's leave requirement.
• Contended that the appellant’s claims and promises had been repeatedly unsustainable and unfulfilled throughout the proceedings.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Quinn v Swift [2022] NICA 43	Requirement for leave to appeal under section 35(2)(g) of the Judicature (Northern Ireland) Act 1978.	Confirmed the necessity of obtaining leave to appeal to the Court of Appeal against the order under challenge.
Davis v Northern Ireland Carriers	Code of principles governing extension of time under Order 59, rule 15 and Order 3, rule 5.	Applied to assess whether extension of time should be granted; court found no basis to extend time.

Court's Reasoning and Analysis

The court first addressed the procedural requirement that leave to appeal must be sought from the court below before applying to the Court of Appeal, as per Order 59 rule 14. The appellant failed to comply with this requirement and did not demonstrate any special circumstances making such compliance impossible or impracticable.

Alternatively, applying a more generous test, the court assessed whether the appellant had an arguable case warranting leave to appeal. The court found no merit in the appellant's case, noting that the appellant’s previous claims, assertions, and promises had repeatedly failed to satisfy the discretion required for a stay of enforcement.

Regarding the extension of time, the court applied the principles from Davis v Northern Ireland Carriers, considering factors such as expiration of the time limit, prejudice to the respondent, prior full hearings on the merits, absence of substantive new points, and the importance of observing court rules. The court concluded there was no justification for extending time.

Overall, the court affirmed the decisions of the Chancery Master and Chancery Judge dismissing the stay applications and refused leave to appeal.

Holding and Implications

The court REFUSED LEAVE TO APPEAL against the order of the Chancery Judge dated 1 December 2022 and AFFIRMED that order in all respects. Additionally, the court REFUSED TO EXTEND TIME for applying for leave to appeal or bringing the appeal. Costs were ordered to be paid by the appellant to the respondent both below and on appeal.

The decision results in the immediate enforcement of the possession order without further delay. No new legal precedent was established beyond the application of existing procedural and substantive principles to the facts of this protracted case.