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Edwards v Edwards [2010] EWHC 652 (Ch)

Judgment arising from enforcement of a charging order against the matrimonial home where the wife had forged the husband's signature on a mortgage. An order for possession and sale under section 14 of TLATA was made in favour of the bank.

It was common ground that the wife had forged the husband's signature when arranging a mortgage of the home in 2003. In 2007 a Part 20 judgment was made against the wife for the sum outstanding under that mortgage. The bank sought to enforce the judgment by charging orders against other properties owned by the husband, and a nightclub was possessed by them. In this application, the bank was seeking relief on the grounds that it was an equitable chargee of the property.

William Trower QC, sitting as a Deputy High Court Judge, first concludes that the bank has an equitable charge over the wife's 50% share of the property and that it has locus standi to make an application under s14 of TLATA. He then considers how he should exercise his discretion to make an order in the circumstances of the case. He finds, among other things, that: i) little weight should be given to the fact the order for sale concerns the matrimonial home as the couple were estranged and he was still pursuing her for damages following the fraud; ii) there are no children to consider; iii) although the husband was 77, there was no evidence of ill-health; iv) the husband would be able to buy a property with the equity from the sale of the home and the night-club. He therefore makes an order for possession and sale but delays the order for possession for four months to allow for a sale and purchase by the husband of a new property.

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Claim No:  HC07CO2217

NEUTRAL CITATION NUMBER: [2010] EWHC 652 (Ch)
IN THE HIGH COURTS OF JUSTICE
CHANCERY DIVISION

Royal Courts of Justice
Strand
London WC2A 2LL

Thursday, 11th March 2010

BEFORE:
MR WILLIAM TROWER QC
Sitting as a Deputy Judge of the High Court

-------------------

BETWEEN: 
KENNETH RALSTON EDWARDS (Claimant)

- and - 
 
(1) VICTORIA MARGARET EDWARDS

(2) BANK OF SCOTLAND PLC 
(Defendants)

AND BETWEEN

BANK OF SCOTLAND PLC (Part 20 Claimant)

- and - 

(1) KENNETH RALSTON EDWARDS
(2) VICTORIA MARGARET EDWARDS 
Part 20 Defendant

-------------------
MR T GRANT (Instructed by Walker Morris)

MR EDWARDS in person and MR CAMPBELL as his Litigation Friend
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Approved Judgment
Crown Copyright©
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MR TROWER QC:
1. In these proceedings the Claimant, Mr K R Edwards, seeks relief against his wife, Mrs V M Edwards, and Bank of Scotland plc -- at all relevant times known as Halifax plc (and I shall call it in this judgment "the bank") -- arising out of the execution of a charge over a property at 4 to 5 Mansion Apartments, Langley Court, South Eden Park Road, Beckenham (which I shall call "Langley Court"), as security for an advance of £637,500.  The property is held under a 999 year lease dated 21st January 2000, and it was originally acquired by Mr and Mrs Edwards without a mortgage. 

2. The pleaded claims are firstly against Mrs Edwards for money had and received for £77,000 odd, an account and damages for deceit and misrepresentation, and secondly against the bank, for a declaration that Mr Edwards is not liable for repayment of the loan and is not bound by the mortgage, together with consequential orders for rectification.  The claim in deceit against Mrs Edwards is based on her forgery of Mr Edwards's signature on the charge.  As between the bank and Mr Edwards, the bank now accepts that he did not sign the charge.

3. The bank responded to the proceedings against it with Part 20 proceedings, in which it sought an order for possession and sale of Langley Court on two alternative bases:  either pursuant to its rights as legal chargee on the basis that Mr and Mrs Edwards had both executed the relevant deed or, pursuant to its rights as equitable chargee and in reliance on s.14 of the Trusts of Land and Appointment of Trustees' Act 1996 (which I shall call "TLATA"), in the event that only Mrs Edwards had executed the legal charge.

4. I should say at the outset that there is no pleaded case that the bank knew or was on notice of suspicious circumstances surrounding the execution of the charge, nor is there any claim for a money judgment against it.  However, in a witness statement and skeleton filed shortly before the trial, Mr Edwards referred to a number of suspicious circumstances, which he said, amongst other things, affected the exercise of the s.14 discretion.  It was also asserted that these affected the ability of the bank to enforce the charge as against Mrs Edwards.  I shall return to these later in this judgment.

5. As the bank now accepts that Mr Edwards did not sign the charge, it accepts that the declaratory relief against it in the proceedings brought by Mr Edwards should be granted.  It also accepts that it cannot proceed with the relief sought in paragraphs 1 and 2 of the Particulars of Claim in the Part 20 proceedings.  It does, however, proceed with its alternative claim for relief based on its status as equitable chargee, which is set out in paragraph 3 of the prayer to the Particulars of Claim in the Part 20 proceedings. 

6. This leaves the question of Mr Edwards claim against Mrs Edwards.  As to this I must be satisfied that Mrs Edwards, who is not represented before me, is aware that the trial of the matter, in so far as it seeks monetary relief against her at the suit of Mr Edwards, might proceed this week.  This morning, just before giving judgment, I was presented with a Certificate of Service, which asserts that these proceedings were served on Mrs Edwards on 5th March 2010, the Certificate being dated this morning.  However, she has not appeared and I am not satisfied that she has had sufficient notice to enable the trial to proceed now against Mrs Edwards on the claims made against her by Mr. Edwards.  Indeed, the substantive matters, with which the evidence and skeleton arguments have been concerned for the purposes of the hearing this week, relate primarily to the bank's Part 20 claim in reliance on s.14 of TLATA.  I am not satisfied that any proper steps have been taken to ensure that Mrs Edwards is aware that she may, as a result of the hearing today, become subject to a money judgment for damages for fraud.  Indeed, I note that the latest application notice in these proceedings that was issued by the Claimant, Mr Edwards, on 8th February, only requested the application notice to be served on the bank.  In my view, it is only appropriate for the issues between Mr Edwards and the bank, on the claim and between the bank and Mr and Mrs Edwards on the Part 20 claim, to be determined today.  If Mr Edwards wishes to proceed with his claim against Mrs Edwards in the light of today's judgment, that part of the claim can be restored for hearing at a future date.

7. I now turn to consider the factual background.  In so doing I should recite that I have received evidence from Mr Brian Holloway, an employee of the bank, who was cross-examined on a number of points, although within a relatively confined ambit, by Mr Campbell, who appeared with the court's leave to represent the interests of Mr Edwards at the trial.  I have also been provided with three witness statements signed by Mr Edwards and dated 16th October 2007, 5th February 2010 and 25th February 2010 respectively.  Mr Edwards was not cross-examined on those witness statements.

8. Reverting to the history.  On 18th September 2003, Mrs Edwards opened an account in the joint names of herself and Mr Edwards with the Bromley High Street branch of the bank and five days later made a first deposit in cash of £100.  The opening of that account, and presumably the deposit in cash, was not known about by Mr Edwards and that is not now contested by the bank.  Shortly thereafter, on or about 1st October 2003, and I shall come back to the dates in a moment, the bank received a mortgage application form via a mortgage intermediary, a Mr Stewart Brewer, of Professional Mortgage Services, requesting a loan to be secured by way of charge on Langley Court.  There was a question raised on behalf of Mr Edwards as to precisely when this was received by the bank.  I do not consider that any issue of real relevance arises out of this, but in my opinion the most likely course of events is that the handwritten application form was received by the bank some time shortly prior to 30th September 2003.  This was then put onto the bank's computer system, it generated a mortgage roll number and caused the printing off of certain documentation, which was then signed by Mrs Edwards on or about 1st October 2003.  Thereafter, copies of passports and driving licences were certified by Mr Brewer as true copies of original documentation and as true likenesses, and submitted to the bank.

9. On 31st October 2003, the Deed of Charge over Langley Court was executed by Mrs Edwards and purportedly by Mr Edwards.  It has never been disputed by Mrs Edwards that she signed the charge.  Indeed, she has accepted as such in her evidence in these proceedings and even gone so far as to say that she forged Mr Edwards' signature without his consent.  On the same day the loan monies, totalling £637,500, were remitted to solicitors instructed by Mrs Edwards and the bank, Messrs Austen & Jedd.  On 5th November 2003, those monies were paid into the account which had been opened at the Bromley branch by Mrs Edwards.  Since then some payments of interest have been made, although those were stopped in or about June 2006.

10. It is said by Mr Edwards that something suspicious occurred, arising out of the payment of monies through Austen & Jedd, and he even goes so far as to say that this demonstrates that there may be no indebtedness outstanding in respect of which the bank is creditor.  I disagree.  The debt has been established by a judgment, which has not been appealed, to which I shall come, and the transaction seems to me to amount to a perfectly ordinary mechanism for the use of a solicitor to effect payment of monies loaned on a mortgage.

11. It was also said at the trial on behalf of Mr Edwards, but I should emphasis, not pleaded as part of his case, that the bank was put on notice of suspicious circumstances by the events surrounding the execution of the charge which is said to be relevant to the way in which the TLATA discretion should be exercised.  Again, I disagree.  Even if it were to be appropriate for such matters to be raised at such a late stage when the bank has not had the benefit of being able to respond to a properly pleaded case, the factors relied on by Mr Edwards do not come anywhere near to putting the bank on notice of anything untoward.  The first factor relied on was that the identification documents bore a different date of birth for Mr Edwards, in that the driving licence showed a birth date of 27th March 1933, while the passport showed a birth date of 14th February 1933.  I agree with Mr Grant, for the bank, that these discrepancies go nowhere.  It seems to me that even if they had been noticed by the bank, and they were not, there is no particular reason why discrepancies of that nature should indicate any suspicious circumstance.  Indeed, it is not even disputed that these are Mr Edwards' own documents and it is rather odd for him to rely on discrepancies on his own materials in the form of a driving licence, birth date and a passport birth date in support of his case for this purpose.  It was also said that the bank was on notice of suspicious circumstances, because of errors in the description of Mr Edwards' nationality and/or residence.  I cannot see how it could be said that the bank could have picked up on this and even if it could have done, why that of itself showed suspicious circumstances.  Reliance was then placed on the timing of the certificate given by Mr Brewer as having been dated 7th October 2003, when he subsequently attested in correspondence from Professional Mortgage Services, that it took a couple of weeks for him to agree the form of the certificate with the bank.  Even if this correspondence shows that Mr Brewer may have been instructed earlier than 30th September 2003, I have real difficulty in seeing what this proves, apart from the possibility that Mrs Edwards had started the application process slightly earlier than 30th September 2003.  I do not begin to see how this could cause the bank to be on notice that Mr Edwards's signature on the charge in due course would be forged, or that he knew nothing about the loan and mortgage application.

12. Finally, reliance was placed on a letter from Austen & Jedd, which appeared to indicate that Mr and Mrs Edwards were using the monies raised on mortgage to buy their own home, when in fact the purpose of the loan was an equity release scheme.  Again, I agree with Mr Grant that the likely explanation for this is a misuse of a standard form letter by the solicitors, but in any event, it of itself adds nothing to the allegation of suspicious circumstances.  In my opinion none of these factors come anywhere near a situation in which the bank might have been or should have been put on notice that Mr Edwards was not a party to either the loan or the charge documentation.   It follows, that even if the case had been pleaded, which it was not, I am satisfied that the bank was not on notice of any circumstances, which as against Mr Edwards, could have caused it to be suspicious of the loan it was advancing.

13. Reverting then to the factual background, in April 2005, the bank was first informed by solicitors instructed by Mr Edwards, that there may be a problem with the charge, and that it appeared that Mr Edwards's signature "may have been appended fraudulently."  At the same time those solicitors informed the bank that Mr and Mrs Edwards were informally separated and that she was living abroad.  There was then correspondence for the best part of two years until, on 5th February 2007, Mr Edwards issued these proceedings seeking damages for deceit and misrepresentation against Mrs Edwards and the declaratory relief against the bank in the form which I have already described.

14. What happened next, procedurally, was that the bank served its defence on 5th April 2007, and shortly thereafter, on 8th May 2007, it sought and obtained from Henriques J, in the Queen's Bench Division, freezing orders, including in particular, freezing orders over two properties, to which I will return.  They are properties at 28a Leicester Square and 229 Lower Clapton Road.  That latter property has been described in these proceedings and I shall refer to it in this judgment as the nightclub. 

15. Part 20 proceedings were then issued by the bank against Mr and Mrs Edwards.  In those Part 20 proceedings, as I have already indicated, the principal relief sought was for possession and sale, but the way that it was formulated is as follows.  The primary claim was a claim in debt against Mr and Mrs Edwards and an order for possession based on the assumption that Mr Edwards was bound by the Deed of Charge.  In the alternative, the bank pleaded that if the assertion of forgery that had already been made in the proceedings commenced by Mr Edwards was successful, it was entitled to an equitable charge on Mrs Edwards' interest and it sought the relief that I have already mentioned, under s.14 of TLATA, together with certain consequential relief under the Trustee Act 1925.

16. On 21st May 2007, the freezing order originally made by Henriques J was extended by Aikens J, and the bank was given permission to issue proceedings for summary judgment on its Part 20 claim against Mrs Edwards before the filing of a defence or acknowledgement of service. 

17. On 25th May 2007 Mr Edwards filed his defence to the bank's Part 20 claim, which was a defence settled by counsel at that stage instructed on his behalf.  His case included a positive plea that the bank's charge operated as an equitable charge over Mrs Edwards's interest in Langley Court.  At no stage has any attempt been made to amend his statement of case in order to withdraw that positive plea.  This was consistent indeed, with the case that he had hitherto maintained and continued thereafter to maintain.  He also alleged, by paragraph 9 of his statement of case, that no relief should be granted under TLATA in his life or in the minority of his grandchild.

18. On 12th July 2007, His Honour Judge Mackie QC, entered judgment against Mrs Edwards on the bank's Part 20 claim in the sum of £680,691.61.  At that hearing Mr Edwards appeared by counsel and Mrs Edwards was not represented.  The judgment of His Honour Judge Mackie QC was said, during the course of the trial and indeed in a skeleton argument filed by Mr Edwards shortly before the commencement of the trial, to exonerate Mr Edwards as against the bank.  In my view it does no such thing.  It simply enters judgment against Mrs Edwards for the mortgage debt.  It does not establish any act of undue influence or misrepresentation by Mrs Edwards and it certainly does not establish that the bank was on notice of any undue influence or misrepresentation that Mrs Edwards may have committed.

19. Since then the bank has been attempting to enforce that judgment, primarily by applications for charging orders against certain properties.  The two properties of particular relevance are the two which I have already mentioned, namely the nightclub, together with adjoining land and the property at 28a Leicester Square.  On 26th July 2007, interim charging orders in relation to those properties were made by Chief Master Winegarten and then subsequently there was a hearing before Deputy Master Hoffman, at which it was asserted, for the first time I think, that Mrs Edwards held her interest in the relevant properties as mere nominee.  This was obviously a relevant consideration for the court on determining whether or not the interim charging order should be made final.  It was also subsequently, I think, alleged by Mr Edwards that Langley Court itself was also held by Mrs Edwards as bare nominee.  In these circumstances it was necessary for that issue to be resolved, which it was, by a judgment delivered by His Honour Judge Waxman QC, on 6th March 2008, when he declared that Mr and Mrs Edwards each had a 50 per cent interest, as equitable tenants in common, in both the nightclub and Langley Court. He also decided that the beneficial interests in Leicester Square, which then subsisted, but which have now come to an end by reason of the expiry of the leasehold interest to which they related, were held as to one-third each by Mr Edwards, Mrs Edwards and a company called Laceys (West End) Limited.  In the light of those declarations His Honour Judge Waxman QC made final charging orders over Mrs Edwards' interests in the three properties so that they stood charged with payment of what was then a figure of £713,608 plus interest, and certain costs still to be assessed.

20. Shortly after the charging orders were made final the nightclub property was valued at £1.3m.  By 24th July 2009, the value according to the evidence that I have and to which I shall return, appeared to have reduced to £1m, it being a market which, on the evidence, was one in which investors were having difficulty then in raising finance.  Meanwhile, proceedings had been commenced by Howan Limited for specific performance of the sale to it of the nightclub.  In April 2009, those proceedings were abandoned by the Claimant.

21. On 29th July 2009, Chief Master Winegarten ordered a sale of the nightclub and I think also the associated land, and directed that the conduct be given to Walker Morris, solicitors for the bank.  This application was opposed by counsel then instructed for Mr Edwards on his behalf.  Chief Master Winegarten made an order for possession by 4pm on 1st November 2009, and directed that one-half of the proceeds of sale be paid to Mr Edwards and one-half to the bank, with the balance, if any, after payment of the judgment debt etc, being paid to Mrs Edwards.

22. In November 2009, Lewison J dismissed an appeal against the order for sale and struck out a number of other applications which were made by Mr Edwards.  On 2nd December 2009, Patten LJ dismissed Mr Edwards's application for permission to appeal.  On 9th December 2009, Briggs J, amongst other matters, made a civil restraint order against Mr Edwards, arising out of the extensive number of applications that had been made in relation to the dispute.   On 10th December 2009, the bank took possession of the nightclub pursuant to the order that had originally been made by Chief Master Winegarten.  I shall return to the question of the value of the nightclub shortly.  It suffices for present purposes, to say that since the bank took possession, the nightclub has been on the market for offers at or above £850,000.

23. I now return to the Part 20 claim commenced by the bank, as it relates to the charge over Langley Court.  It is established, by order of Judge Mackie QC, that Mrs Edwards' indebtedness, which then stood at £680,691.61 plus accrued interest and costs, is a debt due from Mrs Edwards to the bank.  It is established by order of Judge Waxman QC that Mrs Edwards is entitled, as equitable tenant in common, to 50 per cent of Langley Court.  It is established by paragraph 3 of Mr Edwards's pleading, and I would in any event have concluded, that the bank is entitled to a charge in equity over Mrs Edwards' beneficial interest, irrespective of the question of the forgery of the charge.  It is established by concession of the bank, in the light of the evidence as to the forgery which has been adduced before me that Mr Edwards' interest is not charged to the bank. 

24. Against that background I turn to the law on the application which is before me.  The application, as I indicated, is made under s.14 of TLATA, which provides as follows:

"(1) Any person who is a trustee of land or has an interest in property subject to a trust of land may make an application to the court for an order under this section.

(2) On an application for an order under this section the court may make any such order -

(a) relating to the exercise by the trustees of any of their functions (including an order relieving them of any obligation to obtain the consent of, or to consult, any person in connection with the exercise of any of their functions), or

(b) declaring the nature or extent of a person's interest in property subject to the trust, as the court thinks fit."

In my judgment, it is plain that the consequence of the declaration by His Honour Judge Waxman QC, the accepted fact that the signature on the charge was not that of Mr Edwards, and the fact that there is no issue that Mrs Edwards executed the legal charge is twofold.  The first is that the bank has an equitable charge over Mrs Edwards' half-share in Langley Court.  Indeed, as I have already indicated, this is admitted by Mr Edwards in paragraph 3 of his defence to counter claim and secondly, that the bank has locus standi to make an application under s.14 of TLATA.  In reaching that conclusion I have been taken by Mr Grant to the judgment of the Court of Appeal in First National Bank plc v. Achampong [2003] EWCA Civ. 487, which was a case where the legal charge was set aside, because the bank was put on enquiry of the husband's undue influence over his wife, who had also signed the charge.  At paragraph 53 of the judgment of Blackburne J, with which Lady Justice Arden agreed, he said as follows:

"53. As I have mentioned the judge did not give any reasons for dismissing the bank's alternative case.   Even if, as he found, Mrs Achampong was not bound by the legal charge, it is not correct to say, as Mr Adenekan on behalf of Mrs Achampong contended, at any rate in his skeleton argument, that the legal charge should be regarded as having no effect at all and should be set aside not only as against Mrs Achampong but as against Mr Achampong as well.

54. In my judgment the legal charge, although ineffective as against Mrs Achampong, was apt to achieve two things: first, to create an equitable charge in the bank's favour over Mr Achampong's beneficial share in the property to secure, so far as the share was able, the bank's advance; and, second, as a consequence of the first and assuming that the Achampongs did not already hold as beneficial tenants in common, a severance of the beneficial joint tenancy subsisting in relation to the property.    See Ahmed v. Kendrick and anr (1987) 56 P&CR 120 in which the Court of Appeal followed the view of Lord Wilberforce in Williams & Glyn's Bank v. Boland [1981] AC 487 at 507 that Cedar Holding Ltd v. Green [1981] Ch 129 was to be regarded as wrongly decided.   In Ahmed v. Kendrick, the husband had forged the wife's signature on a transfer to a purchaser."

I pause to interpose that the issue in Ahmed was similar in its factual background to the situation in this case.

"The Court of Appeal (Slade and Nicholls LJJ) held that the transfer, although ineffective to affect the wife's share..."

I pause to interpose, in that case the person in the equivalent position to Mr Edwards

"...was nevertheless effective on the true construction of section 63(1) to sever the beneficial joint tenancy of the husband and wife in the property and to pass to the purchaser all of the equitable interest under the trust for sale which the husband had power to convey.   Similarly here.   Section 63(1), which applies as much to a mortgage or legal charge as to a conveyance (or transfer), was apt to ensure that the legal charge in this case was effective to create an equitable charge in the bank's favour over Mr Achampong's beneficial half-share of the property and thus to sever any beneficial joint tenancy of himself and Mrs Achampong in the property. The judge was therefore wrong to dismiss the bank's alternative case."

25. It follows that I must now consider how I should exercise my discretion under s.14, the bank having locus standi to make the application.  Section 15 of TLATA sets out a number of matters, to which I am required to have regard.  It is plain, however, that this list is inclusive and not exclusive.  I should, therefore, have regard to all relevant circumstances in reaching my decision.  In weighing those circumstances I bear in mind the following statement of principle in the judgment of the Court of Appeal in Bank of Ireland Home Mortgages v. Bell [2001] All E Law Reports, Commercial Cases 920, at paragraph 31:

"Prior to the 1996 Act the courts under s.30 of the Law of Property Act 1925 would order the sale of a matrimonial home at the request of the trustee in bankruptcy of a spouse or at the request of the creditor chargee of a spouse, considering that the creditors' interest should prevail over that of the other spouse and the spouse's family, save in exceptional circumstances.  The 1996 Act, by requiring the court to have regard to the particular matters specified in section 15 appears to me to have given scope for some change in the court's practise.  Nevertheless, a powerful consideration is and ought to be whether the creditor is receiving proper recompense for being kept out of his money, repayment of which is overdue (see The Mortgage Corporation v. Shaire, a decision of Neuberger J, on 25th February 2000).  In the present case it is plain that by refusing sale the judge has condemned the bank to go on waiting for its money with no prospect of recovery from Mr and Mrs Bell and with the debt increasing all the time, that debt already exceeding what could be realised on a sale.  That seems to me be very unfair to the bank."

Furthermore, it is also clear that the beneficiary of an equitable charge such as the bank is as much a beneficiary of the Trust referred to in s.15 of TLATA as is the innocent co-owner, such as Mr Edwards, a point made clearly by Sir Christopher Staughton in Bell at paragraph 38.

26. I now turn to the matters to which I am required to have regard.  As to the first statutory consideration under s.15(1)(a), I am required to have regard to the intentions of the person or persons, if any, who created the Trust.  Guidance as to the correct approach was given by Neuberger J, in Mortgage Corporation v. Shaire [2001] Ch 743 at page 762 A to E: 

"So far as section 15(1)(a) is concerned, the house was acquired in 1987 as a home for Mr Fox, Mrs Shaire and Adam, and Mrs Shaire and Adam still live there and still want to live there. It is also true that Mrs Shaire has lived there since 1976, on her own since 1980. However, there is no evidence as to the intention of Mrs Shaire and Mr Fox as to what would happen to the house if Mr Fox died." 

I pause to interpose, that is not a relevant consideration in this case.

"Furthermore, Mr Fox changed the basis on which he held his interest when, albeit unknown to Mrs Shaire, he charged that interest first to FNB and then to TMC for a large sum to assist his business.

'In  Bankers Trust Co v Namdar  (unreported) 18 July 1995, at first instance, Evans-Lombe J is quoted in the judgment of Peter Gibson LJ as saying:

"The subsistence of that purpose" -- to provide a matrimonial home for the family – "depended on the continuation of their joint ownership of the property and was brought to an end by the alienation by Mr Namdar of his interest in it by charging that interest to the bank. It may also have been brought to an end by his leaving the property and his wife in circumstances in which it is plain that their marriage was at an end."

"In  Barclays Bank plc v Hendricks  [1996] 1 FLR 258, 263 Laddie J said:

'...the only collateral purpose upon which Mrs Hendricks could rely, namely that the house was to be retained as the matrimonial home, had ceased to exist both because Mr Hendricks was no longer living there and, more importantly, because Mr Hendricks's interest as co-owner had been charged to the bank. He had therefore alienated his interest in the home.'"

27. In the present case there is no equivalent to the death of Mr Fox, but it seems to me that the charge by Mrs Edwards of her interest is equivalent in principle to what occurred in Mortgage Corporation v. Shaire.  She changed the basis on which she held her interest when she alienated it by way of charge to the bank.  In any event, in paragraph 17 of his witness statement of 16th October 2007, which I was not told no longer reflected the position, Mr Edwards said as follows:

"Unfortunately over the years my wife and I have grown apart and just before Christmas 2004 she went to the United States of America where our daughter Lisa was studying and remained there;  I remained in England.  By this time I had wound down the business at 28a Leicester Square and 229 Lower Clapton Road and had retired.  My wife left for the USA again in May 2006.  She has now returned to England.  We live under the same roof, but remain estranged.  Notwithstanding the events described above and the current state of our relationship, I have formulated no plans to divorce my wife and I have not been told that she intends to divorce me.  My wife does, however, seem to be remorseful about what she has done." 

It is difficult against this evidence, particularly when combined with the fact that Mr Edwards is still apparently pursuing Mrs Edwards seeking damages for deceit and fraudulent misrepresentation, to conclude that much weight should be given to the fact that Langley Court was originally acquired as Mr and Mrs Edwards' matrimonial home.

28. Moving to the second statutory consideration, the purpose for which the property is held is as a house for Mr and Mrs Edwards, but it is held by the bank as security for its loan.  I bear the factor in mind, but in cases such as the present it seems to me to add very little to the factor considered under s.15(1)(a), and does little more than highlight the divergence of interest between the bank and Mr Edwards, which I have to resolve.

29. The third factor under s.15(1)(c) relates to the welfare of minors.  Mr Edwards mentioned in previous evidence that a grandchild lived at Langley Court.  This was not pressed at the hearing before me as a relevant factor, doubtless because the grandchild would appear no longer to be a minor.  As such, his residence in the property would not be a relevant factor per se for the purposes of s.15(1)(c).  I have no evidence as to the residence of any other minor at Langley Court.

30. I am also then required to have regard to the interests of any secured creditor of any beneficiary.  In my view, the bank is a secured creditor of Mrs Edwards for these purposes.  Its interests are of real significance, as explained in the passage from Bell that I have already cited.

31. As to s.15(3) of TLATA, it is plain that Mr Edwards wishes to continue to live in the premises and that is a relevant factor, although one present, of course, in most, if not all cases of this type, and I shall assume that Mrs Edwards, the other co-owner, does so as well.  Although this is a relevant factor under s.15(3), it is one which must be assessed in the light of the guidance given in Bell and so, is no more than one of the considerations for the court to have in mind.

32. As I indicated earlier in this judgment, I am also required to take into account the general circumstances of the beneficiaries of the Trust, which for present purposes means primarily Mr Edwards.  He is a man of 77.  An age which may make the court more circumspect as to the form of relief to be granted, but which is not, in my judgment, a factor of significant materiality in the absence of any clear evidence of ill health.  Even if there were to be such evidence that would be likely to do no more than provide reason for postponing to a particular time, a sale, not refusing it outright.  The circumstances of Mr Edwards also suggest that I should consider whether he would be in a position to purchase appropriate alternative accommodation.  On the evidence before me I am satisfied that he will.  This requires a brief diversion into a slightly more detailed assessment of such evidence as there is on the valuation of the assets available to Mr Edwards.  The only available assets of which I have been informed are Mr Edwards' interests in the nightclub and Langley Court.  The nightclub may be worth in excess of £1m.  At the moment, as I have already explained, it is on the market at a suggested figure of in excess of £850,000 and the circumstances in which that has been considered to be appropriate are described in the valuation evidence adduced on behalf of the bank from Messrs Strettons dated 8th January 2010.

33. I have also been provided with an indicative valuation from Messrs Haywoods in relation to the value of the flat at Langley Court.  This indicates a possible figure of £850,000 for the valuation of the flat, which, as I should have mentioned earlier in this judgment, is a combined flat comprising two premises which are interlinked.  £850,000 is the approximate value of Langley Court in its combined form;  it may be worth up to £550,000 for one flat and £425,000 for the other if they were to be dealt with separately.

34. There is some indication in material with which I have been provided from Mr Edwards, that the valuation of the nightclub may be more than £1m and indeed, I was told or saw reference in correspondence to figures of as much as £1.5m and even at one stage some time ago, there was an offer made of £1.7m and possibly even more.  The evidence that I have seen though, is not evidence which satisfies me that I can safely attribute a value of very much more than £1m to the nightclub.  It may be the case that it will realise substantially more than that, but there is no clear evidence that that is a proper value for the court to attribute on the basis of the evidence before it.  The most that I have got, as I say, is an indication that on Mr Edwards' instructions the nightclub was put on the market at a figure of £1.5m, but there is no indication that there were, as part of that marketing exercise, any takers at a figure of that size.

35. In those circumstances the position so far as Mr Edwards' interest is concerned, is that he is likely to receive a figure substantially in excess of £450,000 for his interest in the nightclub and a figure in excess of £415,000 for his interest in Langley Court.  Accordingly, somewhere in the region of at or about £900,000 can be taken as an approximate estimate of the amount of equity which is likely to be available to Mr Edwards were these two properties to be sold.  I should add though, that the equity in the nightclub is, and indeed potentially any equitable interest in Langley Court as well, is also, of course, subject to any security interest that may be available to any of his creditors.  For these purposes the only evidence of creditors which has been put before me is evidence of the bank being a creditor of Mr Edwards in respect of costs orders that have been made in favour of the bank during the course of these proceedings.  Most of those costs orders have not been reduced yet to sums certain, but in my judgment I can safely proceed on the basis of the evidence which has been made available to me, that Mr Edwards will have an equity from the realisation of these two properties substantially in excess of £600,000.

36. I am satisfied from evidence which has been adduced on behalf of the bank, that there is a wide range of property available in the Beckenham area for a figure substantially less than the anticipated equity that would be available to Mr Edwards on realisation of Langley Court and the nightclub.  Equally importantly, I am satisfied that that equity interest in Langley Court itself, were that to be the only property to be sold, would be substantially sufficient to purchase a property at or above the figure of £300,000,which is the amount of the value of properties, in respect of which the bank has adduced evidence as to availability.  In reaching my conclusion that the evidence adduced by the bank in relation to alternative available property is evidence as to appropriate alternative accommodation, I bear in mind that it is the interests of Mr Edwards alone with which I am concerned and, as I have already explained, it appears to be the case that Mr and Mrs Edwards are not, in any conventional sense, living together. 

37. The value of the properties is also relevant to another consideration.  Is there sufficient evidence from which I can be satisfied that the bank does not have other assets of Mrs Edwards available to it from which it can recover its debts?  Assertions to that effect were made in Mr Edwards's witness statement of 16th October 2007.  In my judgment, there is no such evidence.  The only asset from which a recovery might be affected, other than her interest in Langley Court, is her interest in the nightclub, which is, of course, now in the possession of the bank.  Based on the evidence it seems improbably that much more than £500,000 to £600,000 will be available from the sale proceeds of that property to discharge part of her debt, although I bear in mind that I cannot leave out of account the possibility that a higher figure might be realised.  This may be optimistic, it may be pessimistic, but on the evidence I have I am inclined to the view that it is optimistic.  It would appear in any event to be an asset that will not be easily realisable.  In these circumstances I cannot be satisfied that there is any immediate prospect of resources from elsewhere being available to discharge the bank's equitable interest.  The court will, of course, wish to see if it is possible to find an alternative to discharging the debt from the proceeds of sale of a chargor's interest in a home which he or she occupies with an innocent co-owner, but ultimately, if no such alternative exists, a sale may well be the only appropriate way forward.

38. Mr Grant for the bank also drew my attention to a number of other factors to be weighed in the discretion.  He said that Mr Edwards was the subject of a number of unpaid costs orders going back some considerable period of time.  These costs orders are most conveniently listed in a letter from Walker Morris of 2nd March.  They comprise a costs order made on 6th March 2008 by His Honour Judge Waxman QC; on 23rd July 2009 by His Honour Judge Waxman QC; on 29th July 2009 by Chief Master Winegarten; on 19th November 2009 by Lewison J; on 9th December 2009 by Briggs J and on 24th February 2010 by Vos J.  Some, but not all of those amounts are liquidated sums payable now and they have not been paid.  That is not in dispute by Mr Edwards.  In my judgment, it is a factor which goes into the balance, although it is not one of central significance in a case such as the present.  Mr Grant also points out that the debt has been outstanding for a long time and he says that this has been caused in part by the protracted nature of the proceedings exacerbated by the conduct, which ultimately caused Briggs J to make an extended civil restraint order against Mr Edwards and a number of judges to consider that applications were made wholly without merit.  I agree that the length of time for which the debt has been outstanding is a relevant consideration. The debt continues to increase to the disadvantage of all concerned.  There is no means or sign of any other means of ensuring its discharge.  That, in my judgment, points to a sale.

39. Taking all these factors into consideration I am satisfied that this is a case in which I should make an order for possession and sale.  I also think that the bank's suggestion, made in open correspondence in the letter of 2nd March to which I have just referred, that the order for possession should take effect at the expiry of four months from today (that is 12th July 2010) strikes the right balance between the need to bring matters to a conclusion and the need to give Mr Edwards an appropriate opportunity to sell Langley Court and purchase a new property.