Coutts-Lovie v Topaz Finance Ltd (t/a Heliodor Mortgages) [2024] EWHC 2079 (Ch)

Rory Turnbull (instructed by Richards Solicitors) for the Claimant

Master Bowles (sitting in retirement) :

• By a Part 8 Claim Form, supported by Particulars of Claim and dated 16 October 2023, the Claimant, Alister Coutts- Lovie (Mr Coutts-Lovie), claims an account and inquiry as to the amounts, if any, due from Mr Coutts-Lovie to the Defendant, Topaz Finance Limited (Topaz), and from Topaz to Mr Coutts-Lovie, together with declarations as to the liability of Topaz to Mr Coutts- Lovie in respect of any amounts found to be due from Topaz to Mr Coutts- Lovie, consequential orders for the payment of such amounts as might be found to be due to Mr Coutts-Lovie and an order for the rectification of the Land Register by the removal from the register of Topaz’s legal charge over Mr Coutts-Lovie’s registered property at 2 Kenley Close, Kent, Chislehurst BR7 6QT (the Property).

• The Particulars of Claim reiterates the claim for an account and for orders for payment of all sums found to be due, together with interest thereon. The account sought is stated to be for the period 2006 to 2023, but is, in essence, intended to be an account continuing to the date of the account.

• The account claimed arises out of a mortgage granted by Northern Rock Plc (Northern Rock) to Mr Coutts-Lovie, dated 15 September 2006 and registered at HM Land Registry on 23 October 2006. The mortgage has subsequently been held, successively, whether by transfer, or change of name, by NRAM Plc, NRAM Limited and, latterly, Topaz.

• Although a possession order was made against Mr Coutts-Lovie, in respect of monies falling due under the mortgage, as long ago as 6 June 2016, although a further order for possession was made against his wife, Mrs Jennifer Lovie, on 26 June 2019, and although multiple applications, respectively, for permission to appeal the possession order made against Mrs Lovie, to suspend eviction, suspend the warrant of possession and to stay eviction have all been dismissed, or struck out, Mr Coutts-Lovie and Mrs Lovie remain in possession of the Property, as their home.

• In the context of the dismissal, or striking out, of these applications, most recently by orders on 30 and 31 October 2023, and the explicit suggestion that these proceedings have been conceived as a device to obstruct the implementation of the possession orders, all other challenges to those orders having failed, Topaz now applies, by application notice, dated 28 February 2024, to strike out the entirety of this claim, either as disclosing no reasonable grounds for making the claim, or as an abuse of process, or, in the alternative, for the claim to be dismissed, under CPR 24, as having no realistic prospects of success. This judgment pertains to that application.

• The convenient starting point, in considering this application, seems to me to be a consideration of the question as to whether and to what extent the claim advances reasonable grounds for seeking an account and whether and to what extent there are realistic prospects of the claim for an account succeeding. It is only if those questions are answered, in whole or in part, in favour of Mr Coutts- Lovie that it becomes necessary to consider whether, nonetheless the claim should be struck out as abusive.

• Although the Claim Form, as drafted, appears to acknowledge that, on the taking of an account, monies might turn out to be due to Topaz, it is, I think, clear from the Claim Form and the Particulars of Claim that the substantial proposition underlying the claim for an account and, most particularly, the claim for the removal of Topaz’s charge from the register is that no monies are due to Topaz and, rather, that the balance of the account, when taken, will favour Mr Coutts-Lovie.

• That proposition is reflected in the relief sought in the Claim Form, in particular the claims for declarations and payment in respect of monies found to be due to Mr Coutts-Lovie, together, of course, with the claim for the removal of Topaz’s charge.

• That proposition is also reflected in the Particulars of Claim, in particular in paragraphs 1, 7, 12 (misnumbered), 16 and 20. Specifically, paragraph 1 asserts Mr Coutts-Lovie’s belief that no monies are due to Topaz in respect of the mortgage; paragraph 7 asserts his belief that the mortgage has been discharged by payment and that, by reason of the costs incurred and added to the security, monies are due to him by way of rebate; paragraph 12 asserts that Mr Coutts-Lovie had already paid more than contractually due under the mortgage and that there remained no further debt due under the mortgage; paragraph 16 asserts Mr Coutts-Lovie’s belief that he is due a refund; paragraph 20 seeks an order for the payment any sums overpaid by him and/or equitable compensation in respect any such sums.

• I am quite satisfied that the proposition advanced by Mr Coutts-Lovie is unrealistic and cannot be made out and, further, that, against the clear factual context in which the current proceedings are brought, the Claim Form and Particulars of Claim disclose no reasonable grounds for advancing any claim that the mortgage has been discharged by payment, or that any monies fall due to Mr Coutts-Lovie.

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