Ikeji v Bank of Scotland Plc

This dispute has a long, complicated and sorry procedural history as a result of the indefatigable and, at times, guileful activity of the Applicant (“Mr. Ikeji”).

Mr. Ikeji purchased a property known as the Torrens, Shenton Gate, Gorse Lane, Cobham, Surrey, GU24 8RU (the “Property”) on or about 10 August 2006. His purchase of the Property was funded by a mortgage from Birmingham Midshires (a trading name of the Respondent (“the Bank”)). Mr Ikeji failed to meet his mortgage payments and the Bank obtained a possession order on 13 November 2009. Despite this, the Bank is still engaged in a dispute with Mr. Ikeji for possession of the Property to this day as a result of the constant procedural manoeuvring of Mr. Ikeji as follows.

A possession order for the Property was first made in favour of the Bank on 13 November 2009.

On 26 September 2018, by consent, the possession order was suspended on terms that Mr. Ikeji paid the current monthly mortgage instalments, a further sum towards arrears of £196,027.87 and various lump sums towards reduction of the arrears. That order provided for the Bank to have permission to issue a warrant of possession forthwith if Mr. Ikeji failed to comply with the terms of the order (“the Consent Order”).

Mr. Ikeji failed to comply with the terms of the Consent Order and on 12 February 2019 the Bank issued a warrant of possession.

Mr. Ikeji applied to have the warrant of possession set aside but his application was refused on 5 March 2019 by District Judge King and permission to appeal that decision was refused by His Honour Judge Simpkiss on 7 March 2019.

Mr. Ikeji made a further application to stay or suspend the warrant of possession on 22 March 2019 which was refused by District Judge King on 25 March 2019. The warrant was due to be executed at 11am on 26th March 2019.

Mr. Ikeji applied for permission to appeal the Order of District Judge King of 25 March 2019 by a notice dated 26 March 2019 (which refers to the order of DJ King “dismissing my application to suspend the warrant of possession”), which application came on before Her Honour Judge Raeside on 26th March (emphasis added). The Judge dismissed the application for permission to appeal at 11.16am. Her order records in particular the fact that the application was being heard urgently “in the light of eviction at 11am”, and that “the Appellant [refused] to come into court when invited to do so”. A Note written by the Usher in respect of the hearing also states as follows:

“I have a conversation with Mr. Ikeji and explained he needed to come into court to have his appeal heard. He refused to come into court and I explained that the eviction would proceed if he did not come into court. He said this was unfair as he needed legal representation. He was going to the High Court for a judicial review – Mr. Ikeji kept saying the court was being unfair to him. When I went out to inform Mr. Ikeji that his appeal had been dismissed he was nowhere to be seen.”

In Kingsdale v Mann¹, the Court of King’s Bench held that, upon a warrant of possession/restitution:

“it is not a complete execution until the sheriff, or his bailiffs, deliver the possession to the party, and are gone away.”

There is a dispute between the parties as to when (i.e. at what time) on 26^th March 2019 the warrant was executed. The Bank changed the locks on the five doors to the Property but the time by which it did so is in dispute.

The reason that that dispute was material, at least at the time when the dispute came before the courts prior to this application for permission for appeal, was because at some point on 26^th March 2019, Mr Justice Stewart purported to stay or suspend the warrant until 16.00 on 4th April 2019. If the warrant had already been executed when Stewart J made his order, it would be of no effect.

In oral submissions Mr. Bogle for Mr. Ikeji said that he himself made the application before Stewart J sometime between 11am and 12 noon on 26^th March, such that the warrant had not been fully executed at the time when Stewart J made his order granting a stay of the warrant. I asked my court clerk to check the court’s records as to when Stewart J made his order, and the record in fact shows that he made it in the late afternoon, at 16.50 hours on 26^th March, the hearing having taken place between 16.12 and 16.50 hours, with the time of the first intimation of the application being at 14.30 hours that day. Whilst the parties agree that it is not a matter which this court needs to decide, it accordingly appears more probable than not that the warrant was indeed fully executed before Stewart J made his order. I say that because it appears from the evidence that 2 bailiffs were at the Property at the moment when the Order of Judge Raeside was made at 11.16am and they immediately set about changing the 5 locks on the Property. Even if Mr. Ikeji’s evidence is accepted that it took one man 5 hours to change the 5 locks, two men would have been likely to have completed the task before 16.50 hours when Stewart J made his order, despite the fact that Mr. Ikeji’s friend, Mr. Owusu stated in a witness statement made much later on 28 November 2019 that when he left the Property that day at 4.15pm the 2 bailiffs were still changing locks outside (which is part of Mr. Ikeji’s fresh evidence application).

In any event, despite the changing of the locks by the two bailiffs, Mr. Ikeji reentered the Property on 26 March 2019 at about 6.00pm (although there is also a dispute as to whether he did so without forcibly entering the Property).

On 4th April 2019 Mr Justice Goose refused Mr. Ikeji’s application to extend the stay which had been granted by Mr. Justice Stewart.

On 10th April 2019 the Bank issued an application for permission to issue a warrant of restitution under CPR Part 83.26(9).

By an order of 3 June 2019, District Judge King granted permission to the Bank to issue a warrant of restitution. This Order was forwarded to Mr. Ikeji by the Bank’s solicitors on 17 June 2019.

On 25 July 2019 the Bank’s solicitors wrote to Mr. Ikeji and informed him that the

By an order of 2 August 2019, Deputy District Judge Mardell dismissed Mr Ikeji’s application to suspend or stay the warrant of restitution (this application notice was not put in the bundle before the court by Mr. Ikeji).

By an Appellant’s Notice and grounds of appeal of 5 August 2019, Mr Ikeji applied for permission to appeal against the orders of District Judge King and Deputy District Judge Mardell, inviting the court to “set aside or suspend” the orders.

Mr. Ikeji’s application for permission to appeal came on before HHJ EvansGordon, sitting at the County Court at Guildford on 5 August 2019.

Mr. Ikeji’s grounds of appeal contended that both (i) the order of District Judge King of 3 June 2019 granting permission to the Bank to issue a warrant of restitution in respect of the Property (“the DJ King order”) and (ii) the order of Deputy District Judge Mardell of 2 August 2019 dismissing Mr. Ikeji’s application to suspend or stay the warrant of restitution (“the DDJ Mardell order”), together with the warrant of restitution itself were wrongly obtained and made because there was no lawful taking of possession of the Property, nor any lawful eviction, and a warrant of restitution could only be made after lawful eviction.

This was a reference to the argument, which is disputed by the Bank, that the execution of the warrant of possession issued on 12 February 2019 in respect of the Property was unlawful by reason of the fact that it had not been fully executed on 26 March 2019 before, or on that same day, Mr. Justice Stewart had, at the hearing of a without notice application of Mr. Ikeji, granted a stay of execution of the warrant until 4pm on 4^th April 2019 (“the unlawful execution argument”).

At the hearing before me, Mr. Bogle also sought to contend that HHJ Evans-Gordon misunderstood the nature of Mr. Ikeji’s application in that he was seeking to set aside and not merely stay or suspend the orders of DJ King and DDJ Mardell (I return to this below).

Mr. Ikeji specifically advanced the unlawful execution argument in his skeleton argument at the hearing before HHJ Evans-Gordon on 5 August 2019 at which he applied for permission to appeal against the DJ King order and the DDJ Mardell order. In particular in paragraphs 10 and 11 of his skeleton argument he argued that:

At this stage the evidence before the court was as follows:

On 5 August 2019 HHJ Evans-Gordon heard and rejected this argument on the evidence, which was squarely before her, in dismissing Mr. Ikeji’s application for permission to appeal against the two orders. That is clear from the terms of her order as follows on 5 August 2019 (emphasis added):

“UPON the application of the Defendant, the Defendant, for permission to appeal

i)

the Order of District Judge King dated 3 June 2019, by which she gave permission to the Claimant to issue a warrant of restitution pursuant to CPR Part

83.26(8); and ii) the Order of Deputy District Judge Mardell of 2 August 2019 by which she refused his application to suspend or stay the warrant of restitution

AND UPON hearing the Defendant in person and the Claimant not having notice of the application

AND UPON the Defendant seeking to appeal the order of District Judge King on the basis that:

i)

he did not receive a copy of it until last week and it contained a provision permitting him to apply to set it aside or vary it and that he had no opportunity to do so; and, ii) permission to issue such a warrant should not have been granted because thewarrant of possession dated 12 February 2019 was unlawfully executed on 26March 2019 because Stewart J had stayed the warrant on the same date

AND UPON the Defendant seeking to appeal the order of Deputy District Judge Mardell on the basis that the warrant of restitution should not have been issued for the reason given at ii) above

AND UPON the court being satisfied that the appeal has no real prospect of success because:

…

ix)

The warrant was executed at 11.15am on 26^th March 2019 when, on the Defendant’s own account, the Claimant changed the locks on the five doors to the property;

x)

at some point later in the day, after the Defendant had travelled from the Guilford County Court to the Royal Courts of Justice, in ignorance of the execution of the warrant of possession, Mr. Justice Stewart stayed or suspended the warrant until 16.00 on 4^th April 2019;

xi)

as the warrant was executed before it was stayed it cannot be said that its execution was unlawful;

…

xv)

as the execution of the warrant was lawful, there is no basis on whichDistrict Judge King’s order could be set aside or varied whether on applicationor appeal;

xvi)

for the same reason there is no basis on which Deputy District Judge

Mardell’s Order of 2 August 2019 could be set aside

IT IS ORDERED THAT

1.

Permission to appeal the Order of District Judge King of 3 June 2019 is refused.

2.

Permission to appeal the Order of Deputy District Judge Mardell of 2 August 2019 is refused.

3.

No order as to costs.”

It follows that the Judge directly addressed the unlawful execution argument and rejected it on the evidence before her. She was perfectly entitled to find on the evidence before her that the warrant had been executed before the order of Stewart J was made. Contrary to Mr. Bogle’s submission before me, she also plainly considered whether to set aside or vary DJ King’s order and whether to set aside DDJ Mardell’s order. She refused to do so. It also follows that she would have been aware of this fact when the matter came back before her on 7 August 2019 (see paragraph 31ff below).

Indeed the unlawful execution argument had also been advanced by Mr. Ikeji before Mr. Justice Goose on 4 April 2019, when the Judge refused to extend the stay which had been granted by Mr. Justice Stewart. Both parties were represented by counsel. As is apparent from the face of the Court’s order, Mr. Justice Goose dismissed the application for a further stay pending an application to quash the warrant of possession, having read Mr. Ikeji’s 6^th witness statement of 4^th April 2019 and the witness statement of Ms Ellen McLean of the Bank dated 3 April 2019. It can be seen from Mr. Ikeji’s 6^th witness statement (see for example paragraphs 2 and 108) that he put squarely before Goose J his argument that the eviction was not properly executed or completed. Mr. Justice Goose clearly rejected that argument. (Mr. Bogle on behalf of Mr. Ikeji confirmed that this witness evidence was also before HHJ Evans-Gordon when she made her order of 7 August 2019 – see below).

Returning to the sequence of events, after HHJ Evans-Gordon dismissed Mr. Ikeji’s application of 5 August 2019, he then immediately made an application to the High Court for a stay of execution of the warrant of restitution. That application was heard on the same day (5 August 2019) by telephone by the out of hours judge (Mr Justice Morris). At that hearing, in ignorance of the fact that HHJ Evans-Gordon had already dismissed Mr. Ikeji’s appeals earlier that day and Mr. Ikeji having failed to inform the judge of that fact (which was a serious breach of his duty of full and frank disclosure), Morris J made an order which stayed execution of the warrant of restitution:

“… until 4pm on Friday 9 August 2019 and thereafter, in the event that the Respondent/Applicant files the Notice of Appeal in Guildford County Court, until the determination of the Respondent/Applicant’s application in that Court for a stay of execution pending the outcome of the application for permission to appeal or until further order by Guildford County Court”.

In order to continue the stay as per the mistaken order of Morris J (mistaken because he was not told that Mr. Ikeji’s application for permission to appeal had already been dismissed by HHJ Evans-Gordon), on 7 August 2019 Mr Ikeji filed a Notice of Appeal against the orders of DJ King and DDJ Mandell in the County

Thus, having dismissed Mr. Ikeji’s appeal against the DJ King order and the DDJ Mardell order on 5 August, HHJ Evans-Gordon then found herself, just two days later on 7 August 2019, being asked by Mr. Ikeji to determine the same grounds of appeal all over again on the basis of the same evidence. Mr. Bogle, who agreed in oral submissions that Mr. Ikeji “filed the same Notice on 7 August as he did on 5 August”, submitted that it was open to Mr. Ikeji to do this. In fact, it was clearly not open to him to do this and it was an abuse of the process of the court for him to do so. The Note to CPR 52.3.9 explains, absent rules of court, it is not possible to challenge subsequently the refusal of permission to appeal at the earlier hearing: s.54(4) of theAdministration of Justice Act 1999 (Footnote: ¹). Mr. Bogle was unable to point the court to any such rules of court allowing a second application for permission to the county court judge (nor was Mr. Macklam, counsel for the Bank). HH Judge Evans-Gordon’s order was accordingly made in the following terms (emphasis added):

“UPON the application of the Defendant, the Defendant, by an Appellant’s Notice dated 7 August 2019 for permission to appeal:

i)

the Order of District Judge King dated 3 June 2019, by which she gave permission to the Claimant to issue a warrant of restitution pursuant to CPR Part

83.26(8); and, ii) the Order of Deputy District Judge Mardell of 2 August 2019 by which she refused his application to suspend or stay the warrant of restitution

AND UPON the Defendant having issued an Appellant’s Notice dated 5th August2019 by which he sought to appeal the same two orders

AND UPON Her Honour Judge Evans-Gordon having refused permission to appealat an oral hearing on 5th August 2019 having heard from the Defendant

AND UPON the Defendant on 5th August 2019 having obtained a stay of the above-mentioned warrant of restitution from Mr Justice Morris, the out-of-hours judge

AND UPON it appearing from the face of the Order of Mr Justice Morris that hewas not informed of the appeal hearing on the afternoon of 5th August 2019 or therefusal of permission to appeal

AND UPON the Defendant informing the court staff that he would not appear before a judge today

AND UPON the court being satisfied that, in the circumstances, the Appellant’s Notice of 7th August 2019 is an abuse of process and should be struck out IT IS ORDERED THAT:

1.

The Appellant’s Notice is struck out as an abuse of process pursuant to CPR part 52.18.

2.

The court shall send a copy of this order to the High Court forthwith.

3.

No order as to costs.

An appeal from this Order lies to the High Court of Justice and must be made within 21 days of today

For the avoidance of doubt, as this appeal has been finally determined, the stay granted by Mr Justice Morris expires at 4pm on 9th August 2019”

It follows that on 7 August 2019 HHJ Evans-Gordon struck out the Notice of Appeal (“the Strike Out order”). The Judge’s reasoning cannot be faulted.

I should add that Mr. Bogle’s submission before me that the Judge failed to consider whether to set aside or vary DJ King’s order and whether to set aside DDJ Mardell’s order (as opposed to merely suspending them) is without merit. It has already been seen that she expressly considered the application to set aside 2 days earlier on 5 August and recorded it in her order of that date. In addition, the Appellant’s Notice of 7 August 2019 itself referred to the application being to set aside the warrant; the 7^th witness statement of Mr. Ikeji, in its final paragraph, invites her to set aside the warrant; the grounds of appeal of 5 August 2019 ask for the warrant and orders to be set aside; and Mr. Ikeji’s skeleton argument which was before the judge invites her to set aside the warrant and orders. She would obviously have been aware that that was the relief which was sought.

Despite the terms of the Judge’s order, by his Appellant’s Notice and grounds filed on 9 August 2019, Mr Ikeji applied for permission to appeal from the High Court in respect of the Strike Out order. This is the Permission to Appeal Application (“the PTA Application”) that is before this court. It can be seen that this document is materially identical to the Appellant’s Notice and grounds filed at the County Court at Guildford on 7 August 2019 and which was struck out by HHJ Evans-Gordon, save for certain manuscript amendments to the Appellant’s Notice (e.g. to Section 2).

On 13 August 2019, Mr Ikeji then made an application to the High Court for a stay of execution of the warrant of restitution pending determination of the PTA Application. That application was heard, out of hours, by Morris J. By an order of 13 August 2019, Morris J refused to grant the stay, stating as follows (emphasis added):

“First, I had serious doubts that, despite the suggestion in the Strike Out Order itself, there is any right of appeal to the High Court from the Strike Out Order.

Secondly, and in any event, I would not order such a stay in circumstances where (a) no sufficient reason was given why the application was not made in open court during court hours on Friday or Monday (b) there was prior and serious nondisclosure to the High Court on 5 August 2019; (c) there was no verified witness statement evidence from Mr. Ikeji/Applicant to support this application for a stay … , (d) counsel did not even have before him the 5 August County Court Order; and (e) ultimately the prospects of successfully contending that, given the terms of the 5 August County Court Order, the second application for permission to appeal, made by the Appellant’s Notice was not an abuse of process are, at best, weak.”

Before me, Mr. Bogle sought to suggest that in fact Morris J had been told about the order of HHJ Evans-Gordon, contrary to the Judge’s statement that he had been misled by not being told of it. I unhesitatingly reject that regrettable submission. The Judge clearly records the fact that he was not told.

On 13 August 2019, the Bank’s warrant of restitution was executed. The Bank then took steps to market the Property for sale as mortgagee in possession.

The Property was marketed for sale by Hamptons, estate agents, on behalf of the Bank at an asking price of £1.55m in September and October 2019. Only two offers were received, each for £1.2m.

On 22 October 2019, Mr. Ikeji made an urgent application for an interim injunction to restrain the Bank from selling the Property, arguing that the true value of the Property was between £2.4-2.5m.

The interim injunction application was heard by Mrs Justice Lambert on an urgent basis, without any notice to the Bank, later that day (at 5pm). Mr Ikeji was represented by counsel. At that hearing an interim injunction was granted, but Lambert J listed the return date for 2pm on the next day.

On 23 October 2019 at an inter partes hearing, Lambert J discharged the interim injunction and recorded in her order at paragraph 3 that Mr Ikeji’s application had been “totally without merit”. In her ex tempore judgment, Lambert J recorded concerns as to the circumstances in which the application had come before her the previous day, without any notice to the Bank, and about the way in which it had been advanced at the without notice hearing.

Despite this, on 31 October 2019, being just over a week later, Mr Ikeji made the application for an injunction which is presently before the Court (“the Injunction

Application”), which included an application for interim relief which purported to

“vary” the order of Lambert J. The Injunction Application is essentially the same as the application already dismissed by Lambert J, save that the Injunction Application relies on a valuation by Mr Richard Winder, initially of £1.95m (by way of a “drive-by” valuation); then of £1.85m (report dated 4 March 2020 after a brief internal inspection) and finally by email of 19 March 2021 in the sum of £1.85m (although this is expressly stated not to be a formal valuation, and is part of the application to adduce fresh evidence before this court). By the Injunction Application, Mr. Ikeji seeks to restrain a sale of the Property by the Bank and an order requiring the parties to agree a price at which the Property is to be marketed for sale (and, failing agreement, for the Court to determine the price).

The Injunction Application was first heard by Mrs Justice Carr on 1 November 2019, the day after it was issued. It was heard at extremely short notice to the Bank. Carr J granted an interim injunction, pending a return date of 12 November 2019, to allow the Bank time to respond to the application and also for the Bank to consider a request by Mr Ikeji that his valuer (Mr Winder) be given access to the Property.

On 11 November 2019 the parties agreed a consent order to adjourn the return date to the first open date after 28 November 2019. This was to allow Mr Winder to visit the Property on 19 November 2019, as per Carr J’s request for the Bank to consider the same. The consent order required any valuation report following that inspection to be filed and served by Mr Ikeji by 21 November 2019. The consent order was approved by Jefford J (Footnote: ²) on 12 November 2019.

On 19 November 2019 Mr Winder visited the Property as agreed. However, no valuation report was filed or served by Mr Ikeji by 21 November 2019, despite the agreed directions in Jefford J’s consent order. Accordingly, in a letter dated 27 November 2019, the Bank notified Mr Ikeji that it would seek the return date to be relisted at the earliest opportunity. There was no response to that letter.

In a further letter dated 10 December 2019, Mr Ikeji was invited to consent to the dismissal of the Injunction Application and the discharge of the interim injunction. That letter also received no response.

On 10 February 2020 the return date was re-listed for 5 March 2020.

On 28 February 2020, without any prior warning to the Bank, Mr Ikeji made a further application to the Court, supported by his tenth witness statement (the “February 2020 Application”). By the February 2020 Application, Mr Ikeji sought: (i) a breakdown of his mortgage account, (ii) permission to rely on a valuation report (which he still had not served on the Bank), and (iii) a request for “an order that sale of the property be stayed pending the determination of the Appeal”, being the PTA Application. This was despite the fact that, as Mr. Ikeji knew, Mr. Justice Morris had already refused a stay pending the PTA Application on 13 August 2019.

On 4 March 2020, i.e. the day before the return date, Mr Ikeji served the Bank with his eleventh witness statement, exhibited to which was a valuation of the Property by Mr Winder for £1.85m, which had been prepared following his “brief internal inspection of the property” on 19 November 2019, on which Mr Ikeji wishes to rely.

On 4 March 2020 the parties agreed a consent order which provided for the Bank to rely on valuation evidence in response to Mr Ikeji’s valuation report (i.e. as originally envisaged in the Jefford J consent order) and for the return date to be adjourned to the first open date after 1 April 2020. Mrs Justice Tipples approved the consent order, which was sealed on 5 March 2020.

On 20 March 2020, the Bank filed and served a second witness statement from Mr

On the same date (20 March 2020) the Bank provided Mr Ikeji with the breakdown of his mortgage account requested in the February 2020 Application.

Finally, on or around 5 November 2020, the return date of the Injunction Application was listed for 15 December 2020 before Mr Justice Bourne.

Pursuant to the Order of Mr. Justice Bourne dated 15 December 2020, there are two applications before the Court:

In addition, on 23 March 2021 Mr. Ikeji issued a further application (“the amendment application”), seeking amongst a series of other orders, permission to amend his Grounds of Appeal in the form of a draft amended grounds of appeal which were before the court on 15 December 2020 and which are attached to his 10^th witness statement, as well as permission to rely upon fresh evidence, being in particular (i) a witness statement of a Mr. Owusu dated 28 November 2019; (ii) a letter from JJ Locksmiths dated 28 August 2019; and (iii) his 9^th witness statement purporting to explain what took place at the hearing before HHJ Evans-Gordon on 7 August 2019. This is despite the fact that Mr Ikeji was directed by Mr Justice Bourne on 15 December 2020 to make any interlocutory applications in support of the PTA Application by 15 January 2021.

The issue for this court to determine is whether Mr Ikeji has a real prospect of successfully contending that the Strike Out order is “wrong” or “unjust because of a serious procedural or other irregularity” or there is some other compelling reason for the appeal against that order to be heard (CPR rules 52.6 and 52.21).

Not only was the Strike Order not wrong, it was obviously correct. On 5 August 2019 Mr. Ikeji’s appeal was dismissed and the Judge rejected his argument that the eviction was not properly executed or completed. It was not open to Mr. Ikeji to seek permission to appeal against the refusal to grant permission to appeal from the same judge on the same evidence. Mr Ikeji’s application for permission to appeal had already been finally adjudicated upon by the Court, and there is accordingly no legal basis on which Mr Ikeji can properly argue that HHJ Evans-Gordon’s decision on 7 August to strike out the (second) Appellant’s Notice was “wrong” or “unjust because of a serious procedural or other irregularity”. She was obviously right to do so. Mr. Ikeji’s second application for permission to appeal was an impermissible collateral attack on the earlier refusal of permission and as such an abuse of the process of the court.

Moreover, Mr. Ikeji’s Grounds of Appeal do not allege any arguable ground for saying that the Strike Out order is wrong. The Grounds of Appeal filed at the High

Mr Ikeji’s PTA Bundle included a document headed “Amended Grounds of Appeal”. The Bank objected to reliance upon this document for which no permission had been sought or granted, notwithstanding the terms of Bourne J’s order. The application was therefore out of time.

This prompted Mr. Ikeji to belatedly apply for permission to rely upon these Amended Grounds by an Application Notice dated 23 March 2021 (just 2 clear days before this application was heard) and he served his 12^th witness statement in support of it. That Application Notice also contained within it numerous other orders which he sought and for which he had failed to apply in accordance with the order of Bourne J.

I agreed to consider the amended grounds of appeal and fresh material de bene esse, without prejudice to the Respondent’s right to argue that permission to amend and/or permission to adduce and rely on the fresh material ought to be refused. The Amended Grounds completely re-write the basis for the application. However, none of the Amended Grounds of Appeal are remotely arguable.

The Amended Grounds of Appeal contain 9 grounds in paragraph 7:

There are many criticisms of both the courts and the Bank in Mr. Bogle’s skeleton argument. None of them have merit. Mr. Bogle relied upon the argument of the appellant in Leicester City Council v Aldwinckle [1992] 24 HLR 40, para 45, for the submission that there was here knowingly unfair dealing on the part of the Bank, which constituted oppressive behaviour and an abuse of the process of the court such as rendered a nullity the request actually made for a warrant of possession. The result, he submits, is that the request and the consequences of it, namely the issue and execution of the warrant for possession, should be set aside. I reject unreservedly this suggestion.

This power of the Court was examined by the Court of Appeal in Hammersmith and Fulham London Borough Council v. Hill (1994) 27 H.L.R. 368. In that case Nourse L.J., who gave the first judgment, said this (at page 371):

“… the effect of the decision in Leicester City Council v. Aldwinckle is that after a warrant for possession has been executed in this class of case it can only be suspended or set aside if either (1) the order on which it is issued is itself set aside; (2) the warrant has been obtained by fraud; or (3) there has been an abuse of process or oppression in its execution.”

There is no abuse of process or oppression in the execution of the warrant in this case and nor can Mr. Ikeji point to any. In particular, the suggestion that Mr. Ikeji has not been allowed time to take legal advice and file grounds of appeal is without any foundation whatsoever: he has compelled the Bank to incur very substantial costs for a very long period of time in meeting numerous meritless applications, of which this is yet another. He was able to put his case at court hearings on 5 March 2019, 7 March 2019, 25 March 2019 and 26 March 2019 (although on this last occasion he refused to come into court). He had further opportunities to put his case to the court on at least 26 March 2019; 4 April 2019; 2 August 2019 and 5 August 2019 (twice) before the order of 7 August 2019 was made. Contrary to Mr. Bogle’s skeleton argument and his (unagreed) chronology of events which I have carefully considered, Mr. Ikeji has not been treated unfairly, with a degree of peremptoriness, haste and error; he has not been mishandled; there has been no bias in the decisions against him. Rather, he has been treated indulgently and with considerable patience and courtesy by the courts and the Bank and the Bank has certainly not conducted the eviction process oppressively: it has conducted it in the proper manner through the usual court processes.

In any event, these are arguments which should have been taken at a much earlier stage, but none of these points were argued by Mr. Ikeji on 5^th August 2019 before HHJ Evans-Gordon; nor were they argued before DDJ Mardell on 2 August 2019.

Finally, paragraphs 20.2 and 83.2 of Mr. Bogle’s skeleton argument are also completely irrelevant to this appeal (an allegation that the Bank misled Mr. Ikeji in obtaining possession of the Property). There is no evidential foundation for this suggestion in any event, which I reject.

The large amount of fresh material on which Mr Ikeji seeks permission to rely (see item (f) at box 3 of his form N244) is irrelevant to the sole question that arises in relation to his application for permission to appeal: was the Judge entitled to strike out his second application for permission to appeal made on the same grounds and evidence just 2 days after she had dismissed it the first time?

As is mentioned above, Mr. Ikeji relies in particular upon the matters described in paragraph 26(a)-(c) of his 12^th witness statement. The evidence of Mr. Owusu and JJM Locksmiths might have been relevant to an appeal against the orders of DJ King and DDJ Mandell, but is entirely irrelevant to an appeal against the Strike Out Order. As for (c), this is the same as ground 3 above. It does not afford any ground of appeal as the Judge was perfectly entitled to decide the strike out application on paper.

As regards the other orders sought:

Whilst none of these Grounds are arguable, I do not consider that Mr. Ikeji is in any event entitled to relief from sanctions arising out of the order of Bourne J. I have read paragraphs 15-23 of his 12^th witness statement but the explanation which he gives there is insufficient. I agree with the Bank that the complete failure to comply with the order of Bourne J is a serious and significant breach (and this application for relief was only made 2 clear days before the hearing of the PTA Application); no good reason has been put forward for it (other than that he misunderstood Bourne J’s order, which is insufficient); and in all the circumstances of the case the application should be refused. Moreover, in so far as the application seeks to rely on fresh evidence, the Ladd v Marshall criteria are not satisfied and no attempt is made to explain how they might be satisfied. In the 5 months available between March and August 2019, the evidence could easily have been obtained and placed before HHJ Evans-Gordon; and in any event it is irrelevant to issue which this court has to determine.

In all the circumstances, this application is hopeless, itself abusive and I certify that it is totally without merit (Footnote: ³). My having refused permission to appeal, the orders sought at paragraphs 3(a) and (b) of Mr. Ikeji’s Form N244 fall away. I therefore refuse to make any of the orders set out in section 3 of Mr. Ikeji’s N244 form dated 23 March 2021.

I turn next to the Injunction Application.

Despite not even having issued and served a Claim Form, Mr. Ikeji nonetheless seeks an interim injunction as follows:

“1.

The Bank shall be, and hereby is, restrained from selling the property until the return date or further order of the court and the order of Mrs Justice Lambert dated 23 October 2019 is hereby varied, accordingly.

2.

The parties shall each instruct a valuation expert to enter upon the property and thereafter to provide a current market valuation of the property by 2019 and each party shall file and serve the aforesaid valuation reports by 2019.

3.

The Bank shall give and provide access to the property to Mr. Ikeji's surveyor for the purposes of the aforesaid valuation.

4.

If, upon service of the aforesaid valuation reports, the parties are unable to agree upon a price at which the property shall thereafter be marketed for sale, there will be a further hearing in respect of this order on [ ] 2019 at which the court will determine the initial sale price at which the property shall be marketed.”

However, his skeleton argument advances no submissions in support of the Injunction Application; instead Mr. Bogle made some oral submissions.

The test for whether to grant an interim injunction is well known:

Where a mortgagor wishes to restrain a mortgagee from selling mortgaged property prior to any contract for sale having been made, the mortgagor is required to pay into Court the full amount due (i.e. principal, interest and costs), unless it can be shown that the mortgagee is not exercising its powers in good faith or is otherwise acting improperly (Fisher & Lightwood’s Law of Mortgage (15^th ed.) paras 30.35 and 30.37).

As regards a mortgagee’s duties in relation to the sale of mortgaged property, the position is as follows (Fisher & Lightwood at para 30.24):

In Gray & Grayon Elements of Land Law (5^th ed.) at para 6.4.63 the mortgagee’s duties in relation to the sale price are described in the following terms:

“The mortgagee cannot, of course, be held to any absolute obligation to realise ‘the true value’ or to obtain the ‘best price’ of the mortgaged property. ‘Perfection is not required’ of the mortgagee. His duty is merely to invest reasonable care in the exercise of his power of sale: it is ‘the effect rather than the result to which the court looks’. The question whether ‘reasonable steps have been taken … to obtain the best price’ must be examined ‘in the round … in practical commercial terms’. It is readily recognised that a forced sale by a mortgagee seldom achieves the ‘highest’, ‘best possible’ or even ‘market’ price. The ‘market’ for repossessed land is inevitably distorted and cogent evidence is required to rebut the inference that the actual sale price represented the proper price in the circumstances. Provided that the mortgagee exercises an informed judgment as to market conditions and market value, he cannot be faulted if the price achieved is broadly within the correct ‘bracket’ or falls within an acceptable ‘margin of error’. (Footnote: ⁵) The point remains, however, that the mortgagee is not simply entitled to adopt any arrangement or accept any price merely because it will see him paid out. He has no right to sacrifice the interest of the mortgagor in the surplus of the proceeds of sale.”

Applying these legal principles to the facts of this case, the existing interim injunction must be discharged and the Injunction Application dismissed because:

I am told that in an ex tempore judgment on the return date of 23 October 2019, Lambert J held that there was no serious issue to be tried since the Bank’s duty of care to Mr Ikeji had been more than adequately discharged. That was because the Property had been placed on the market on behalf of the Bank in September 2019 for an asking price of £1.55m. That asking price was supported by the valuation report of Mr Blanchett and the market appraisal of Mr Beresford of Hamptons.

In concluding that the Bank had more than adequately discharged its duty of care, and that Mr Ikeji’s contention to the contrary was totally without merit, the Judge held that:

By the Injunction Application, Mr Ikeji again seeks to contend that the Bank is seeking to sell the Property at an undervalue, in breach of duty, and that this should be restrained by an injunction. Mr Ikeji relies on valuation reports prepared by Mr Winder, which initially valued the Property at £1.95m (31 October 2019) and subsequently valued the Property at £1.85m (4 March 2020).

Mr. Macklam submits that the Bank’s position is straightforward. At the return date of the First Injunction Application before Lambert J, the Judge decided that the Bank had more than adequately discharged its duties to Mr Ikeji. The fact that, a week later, Mr Ikeji produced a drive-by valuation report (or, some months later, an updated valuation report) which values the Property at £1.85m rather than £1.5m, does not undermine the Judge’s conclusion in this regard.

I accept that submission. This is not a trial. This is an application for an interim injunction. The relevant question is whether Mr Ikeji can establish to the satisfaction of the Court that he has a real prospect (as opposed to a fanciful one) of successfully persuading the Court that the Bank has failed to take reasonable care in its approach to the sale of the Property.

In my judgment, Mr Ikeji has no prospect whatsoever of doing so.

The Bank has now obtained valuation evidence from no fewer than five separate, independent, individuals over the course of more than a year. Each of those independent individuals has valued the Property at £1.5m or lower. More particularly, the relevant evidence obtained by the Bank is as follows:

The valuations obtained by the Bank can therefore be summarised in tabular form as follows:

It is not suggested by Mr. Bogle, and nor could it be, that any of these individuals has an interest in putting their professional reputations at risk by artificially undervaluing the Property. Despite this, he still considered it appropriate to argue that the Bank was not exercising its powers in good faith. I find that submission to be wholly unsustainable in light of the valuation evidence.

Moreover, it is positively against the Bank’s own commercial interests to sell the Property at an undervalue. The balance of Mr Ikeji’s mortgage account was approximately £1.79m as at 4 March 2020.

The Property was on the market during September 2019 and October 2019 for an asking price of £1.55m. During that time, it received limited interest and no offers at that asking price: it received two offers, each for £1.2m. As Seymours Estate Agents have explained, “The property has previously been marketed at higher prices before possession and at £1.55m over the past two months and has yet to obtain valuable interest to achieve a sale on the property”. It follows that I reject Mr Ikeji’s submissions that the Bank’s asking price represented a “very substantial undervalue”; that a sale was likely to take place within 24 hours; and that the Bank was seeking to sell “at a ‘crash sale valuation’ to obtain an immediate sale”. If the Property had been very substantially undervalued when it was previously marketed for sale, one would have expected it to generate considerable interest. It did not. The Bank cannot therefore be criticised by not increasing the price at which it has been marketing the property and the Bank is plainly not “on the wrong side of the line” in this respect.

The fact that Mr. Ikeji has obtained one valuation on a much less thorough basis from Mr. Winder which suggests that the current value of the property may be some £300,000 or so higher is irrelevant.

Accordingly, there is no serious issue to be tried and Mr Ikeji’s contention that the Bank’s conduct amounts (or will amount) to a breach of its duty is hopeless.

In the circumstances, I discharge the injunction and dismiss the Injunction Application. There is no action to strike out because Mr. Ikeji has, inexplicably, failed even to issue a Claim Form.

I also certify that the Injunction Application is totally without merit (in the sense described in footnote 4 above).