Green v Southern Pacific Mortgage Ltd & Anor, Court of Appeal - Civil Division, April 20, 2018,  EWCA Civ 854
|Resolution Date:||April 20, 2018|
|Issuing Organization:||Civil Division|
|Actores:||Green v Southern Pacific Mortgage Ltd & Anor|
Case No: B5/2016/2926 & A & B
Neutral Citation Number:  EWCA Civ 854
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Bristol County Court
Royal Courts of Justice
Strand, London, WC2A 2LL
LORD JUSTICE PATTEN
LORD JUSTICE PETER JACKSON
LORD JUSTICE COULSON
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Richard Drabble QC & Stephen Cottle (instructed by South West Law) for the Appellant
Robin Allen QC & Clifford Payton (instructed by TLT Solicitors) for the Respondent
Catherine Casserley (written submissions only) (instructed by Commission for Equality & Human Rights) for the Intervener
Hearing dates: Tuesday 6th & Wednesday 7th March 2018
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Lord Justice Coulson:
In a written judgment dated 19 November 2015, Ms Recorder Rowlands, sitting in the County Count at Bristol, rejected the appellant's defence to the respondent's claim for possession. By an order dated 2 December 2015, the appellant was ordered to give the respondent possession of the property no later than 17 December 2015. The appellant appealed and, on 24 March 2017, permission to appeal was granted.
The defence to the possession claim, and the points raised on this appeal, arise out of the application of sections 19-21 of the Disability Discrimination Act 1995 and the replacement provisions at section 15 and 29 of the Equality Act 2010 (which I shall call ``the relevant Equalities legislation''). For that reason, permission was granted to the Equality and Human Rights Commission (``the Commission'') to intervene in this appeal to the extent of providing written submissions.
The relevant Equalities legislation provides as follows:
``Disability Discrimination Act 1995
(1) It is unlawful for a provider of services to discriminate against a disabled person--
(a) in refusing to provide, or deliberately not providing, to the disabled person any service which he provides, or is prepared to provide, to members of the public;
(b) in failing to comply with any duty imposed on him by section 21 in circumstances in which the effect of that failure is to make it impossible or unreasonably difficult for the disabled person to make use of any such service...
(3) The following are examples of services to which this section and sections 20 and 21 apply -
(e) facilities by way of banking or insurance or for grants, loans, credit or finance...
(1) For the purposes of section 19, a provider of services discriminates against a disabled person if -
(a) for a reason which relates to the disabled person's disability, he treats him less favourably that he treats or would treat others to whom that reason does not or would not apply; and
(b) he cannot show that the treatment in question is justified.
(2) For the purposes of section 19, a provider of services also discriminates against a disabled person if --
(a) he fails to comply with a section 21 duty imposed on him in relation to the disabled person; and
(b) he cannot show that his failure to comply with that duty is justified.
(3) For the purposes of this section, treatment is justified only if--
(a) in the opinion of the provider of services, one or more of the conditions mentioned in subsection (4) are satisfied; and
(b) it is reasonable, in all the circumstances of the case, for him to hold that opinion...
(1) Where a provider of services has a practice, policy or procedure which makes it impossible or unreasonably difficult for disabled persons to make use of a service which he provides, or is prepared to provide, to other members of the public, it is his duty to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to change that practice, policy or procedure so that it no longer has that effect...
(6) Nothing in this section requires a provider of services to take any steps which would fundamentally alter the nature of the service in question or the nature of his trade, profession or business....
Equality Act 2010
(1) A person (A) discriminates against a disabled person (B) if--
(a) A treats B unfavourably because of something arising in consequence of B's disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.
(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if--
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim...''
This appeal has been argued almost exclusively by reference to the provisions of the 1995 Act. It was common ground that there is no meaningful difference for these purposes between the relevant provisions of the 1995 Act and those of the 2010 Act. This similarity was expressly noted in Finnegan v Chief Constable of Northumbria Police  EWCA Civ. 1191.
The appellant bought 164, Claverham Road, Bristol BS49 4LW (``the property'') in 1994. In August 2006, she applied to the respondent to re-mortgage the property. The Recorder found that this was to allow her to pay for improvements to the property and to pay off loans.
The mortgage offer was dated 19 October 2006. The loan amount was £96,000. The type of mortgage was stated to be ``repayment''. The term was 20 years. There was a fixed rate of 5.59% until 30 November 2008 when it became a variable rate at 1.35% above LIBOR. The offer letter stated that ``the terms of this mortgage reflect past or present financial difficulties''.
On 13 November 2006, the appellant and the respondent entered into a mortgage deed. The deed stated that the appellant ``charges the Property by way of legal mortgage with payment of all the money referred to in clause 2.1 of the Mortgage Conditions''. It provided that the respondent was the proprietor of a registered legal mortgage over the property.
Section C set out the Loan Conditions. These included the following:
Repayment of the Loan
The Borrower must repay the Loan with interest over the Repayment Period by making the Monthly Payments. ...
Each Monthly Payment is collected by Direct Debit from a current account maintained by the Borrower with a bank or building society approved by the Company...
What the Company may charge interest on
The Company will charge the Borrower interest every day on the balance debited to his or her Loan Account at the end of that day.
The Company can make further debits to the Borrower's Loan Account as follows:
(a) the Company will debit the Borrower's Loan Account with any relevant sum and any expenses on the date on which the Company incurs them; and
(b) on each Payment Day, the Company will debit the Borrower's Loan Account with interest that the Company has charged since the last Payment Day.
Changing the Monthly Payment
The Company may change the Monthly Payment at any time for any of the following reasons:
(a) to reflect a change in the Interest Rate;
(b) to provide for the repayment of any Expenses with interest;
(c) to reflect any change in the Repayment Period which is agreed between the Borrower and the Company; and
(d) to ensure that the Loan Amounts are paid by the end of the Repayment Period.
This clause applies if:
(a) the Borrower fails to pay any money it is due under the Loan Conditions;
(b) the Borrower breaches any of the terms of the Mortgage;
(c) the Mortgage is no longer valid or legally binding for any reason;
If this clause applies, the Company may demand that the Borrower immediately pays the Company the Loan Amounts.
The Company's Expenses
The Borrower must pay all costs and expenses that the Company reasonably incurs in connection with the Loan or the Mortgage including, without limitation:
(a) the costs the Company incurs in any legal proceedings (whether brought by or against the Borrower or any other person) relating to the Loan or Mortgage;
(b) the costs the Company incurs in exercising or enforcing any of its legal rights under the Loan Conditions or Mortgage...
The Company can recover all Expenses from the Borrower on an indemnity basis.
The Borrower must pay all expenses on demand from the Company. If the Borrower does not pay them, the Company will debit the Expenses to the Borrower's Loan Account under clause 13 of this section and charge the Borrower interest on them until the Borrower pays them.
The ``Loan Account'' was defined as ``the account the Company keeps for recording credits and debits under the Loan Conditions.''
Section D set out the Mortgage Conditions. These included the following:
``4 Mortgagor's obligations
4.1 The Mortgagor must:
(a) put and keep the Property in good repair;
(b) comply with the terms of any lease under which the Property is held, and any covenant, restriction or obligation which affects the Property
4.2 The Mortgagor must not, without the Lender's written consent (such consent not to be unreasonably withheld) undertake any of the following:
(a) alter the property; or
(b) grant to any third party, or allow any third party to obtain rights in the Property...
Lender's rights and remedies
7.3 If any event occurs which gives the Lender the right to demand immediate payment of all the money owing under any loan agreement, the lender may do any of the following:
(a) take possession of the Property;
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