The High Court has refused an application by Gerard Scriven for a preliminary hearing on disputed mortgage transfers, ruling that the issues require a full trial with oral evidence and cross-examination. The decision does not determine the substantive claims in the proceedings.
Mr Justice Kennedy said the application raised broad and complex questions about the transfer of loans and mortgage charges, the claimed separation of legal and beneficial interests, and the authority of the defendants to enforce the mortgage or appoint receivers. Those matters could not be decided as discrete questions of law on agreed facts, he said.
The case began in 2013, when Samantha Scriven brought proceedings against her husband, claiming an equitable interest in nine buy-to-let properties. She alleges that an agreement with him gave her the beneficial interest in the properties before he mortgaged them. The finance defendants dispute her claim and assert interests in the loans and charges. Those claims remain unresolved.
Gerard Scriven, the first defendant, sought orders determining that Feniton Property Finance DAC had not received an effective legal assignment and that the defendants lacked standing to enforce the charges or appoint receivers. He also sought other declarations and injunctive relief, including over personal data. These were his arguments, not findings by the court.
The judge refused the proposed preliminary hearing because the parties sharply dispute the facts surrounding the assignments and any novation. Resolving those questions, he said, would require evidence and legal submissions at a plenary hearing. A separate early hearing risked duplicating proceedings, increasing costs and delay, and producing an unfair result. The court also noted that the plaintiff had not supported the application and that her claims against the finance defendants would still need to be resolved.
The court said the issues between Scriven and the finance defendants should be addressed in the wider litigation, with case management aimed at bringing the proceedings to trial without further unnecessary delay. It invited proposals on whether the related actions should be consolidated, linked or heard sequentially. It did not rule on the validity of the transfers, the defendants’ ultimate entitlement to enforce, or the plaintiff’s claimed interest in the properties.
The respondents are presumptively entitled to their costs. The judge’s initial view was that costs should be awarded on a party-and-party basis, with the amount determined if the parties cannot agree. Any party seeking a different costs order may file written submissions by 20 September 2024.