Freeguard v Royal Bank of Scotland, Court of Appeal - Civil Division, April 07, 2005, [2005] EWCA Civ 485

Issuing Organization:Civil Division
Actores:Freeguard v Royal Bank of Scotland
Resolution Date:April 07, 2005
 
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SMITH BERNAL WORDWAVE

A3/2004/2585

A3/2005/0087

Neutral Citation Number: [2005] EWCA Civ 485

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT

CHANCERY DIVISION

(HER HONOUR JUDGE ALTON)

Royal Courts of Justice

Strand

London, WC2

Tuesday, 7th April 2005

B E F O R E:

LORD JUSTICE CLARKE

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MARGO ANN FREEGUARD

Claimant/Applicant

-v-

ROYAL BANK OF SCOTLAND

Defendant/Respondent

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(Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street, London EC4A 2AG

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(Official Shorthand Writers to the Court)

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The Applicant appeared in person

The Respondent did not appear and was not represented

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J U D G M E N T1. LORD JUSTICE CLARKE: There are two applications for permission to appeal before the court. The first application, A3/2004/2585, relates to a refusal by Lightman J on 28 June 2004, in what is sometimes called a Taylor v Lawrence application now made under CPR 52.17 to reopen and set aside an order by Mr Deputy Master Cousins, made on 17th August 2001, as will appear in a moment. Deputy Master Cousins struck out the applicant's (that is Mrs Freeguard's) claim in its entirety. An appeal against that decision succeeded in part, before Mr Simon Berry QC sitting as a Deputy Judge of the Chancery Division.

2. The second application, A3/2005/0087, relates to a refusal by Her Honour Judge Alton to allow an appeal against an order of Master Bowles refusing an application for permission to reamend the Particulars of Claim in some respects. The decision of her Honour Judge Alton was made on 20 December 2004. The order of Master Bowles was made in August 2004.

3. Some time after the decision of Master Bowles the trial of this part of the action which was not struck out as a result of the appeal to Mr Berry was fixed to take place in the Chancery Division in March of this year. Thus when the matter came before her Honour Judge Alton, the trial of those issues was already fixed. I am told that the trial took place in the middle of March. It came before Mr B Livesey QC sitting as a Deputy Judge of the Chancery Division. The judgment was reserved and has not yet been handed down.

4. The history of the matter is long and complicated. The factual history from which the original claim arose is set out in detail by Mr Berry in his judgment and it is not necessary to repeat that detail here. In short, Mrs Freeguard, and, I think, her husband, owned a house and adjoining land and also some adjacent land in Brixton, Devon. (I should interpose to say that I earlier permitted Mr Freeguard to represent his wife on these applications and he has done so with persistence and courtesy this morning.)

5. Much of the adjacent land was sold to a Mr James Edgar and a Mr Robert Edgar, but Mrs Freeguard retained an area at the back of the house, which is known as "the Back Land", and also a further strip of land, which is known as "the Strip" or "the Ransom Strip". After Mr James Edgar died Mr Robert Edgar also purchased the Back Land and the Strip, although Mrs Freeguard was granted an option to reacquire the land. Mr Edgar later charged the Back Land and the Strip to the Royal Bank of Scotland (the Bank). The option was subsequently exercised by Mrs Freeguard.

6. Litigation ensued which resulted in a decision by the Court of Appeal upholding a decision of a Deputy Judge in the Chancery Division that the bank charge had priority over Mrs Freeguard's interest. Mrs Freeguard subsequently became registered proprietor of both the Back Land and the Strip and the bank charge was also registered and noted on the title.

7. The Bank later exercised its power of sale in relation to both the Back Land and the Strip. Mrs Freeguard brought a claim against the Bank which was struck out, in its entirety, on 17 August 2001 by Deputy Master Cousins. Her case initially included a number of varied assertions, including (i) that the Bank was not entitled to register its interests as legal charge; (ii) that Mrs Freeguard should have taken title free of the legal charge; (iii) that if the Bank had a legal charge Mrs Freeguard would be deemed to be the mortgagor; (iv) that no power of sale arose because the interest was merely equitable; (v) that the Bank sold the Back Land and the Strip without Mrs Freeguard's knowledge and the sales were unlawful and fraudulent; (vi) that both the Strip and the Back Land was sold at an undervalue; and (vii) that the Bank committed both fraud and forgery.

8. Mrs Freeguard sought permission to appeal against the order striking out the claims. The appeal was limited to Mrs Freeguard's case that the land was sold at an undervalue. The grounds of appeal included, as I read...

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