Mars Capital Finance Ltd v Hussain & Others [2021] EWHC 2416 (Ch) is an example of the High Court dealing with a litigant in person and respecting the autonomy of the county court set against the complexity of Cyprus’s economic crisis and the associated Cypriot legislation.
Mr Hussain was one of the defendants and a litigant in person (the litigant in person). In early 2000s, the litigant in person had (from the UK branch of the Cyprus Popular Bank Public Company Ltd (the Popular Bank)), two loans, an overdrawn account and four legal mortgages over four separate properties in Sutton Coldfield, namely his residence at 57 Stonehouse Road, Boldmere, and three buy-to-let properties at 1, 2 and 15 Arbor Court at 295, 293 and 301 Penns Lane, Walmley.
The defendants did not dispute that they had borrowed large sums from the Popular Bank or that they had defaulted in their loans or mortgages. Indeed, in 2012 the litigant in person had previously faced proceedings in the Birmingham County Court (the 2012 Birmingham possession proceedings) which resulted in the Popular Bank obtaining a possession order in respect of the buy to let properties. What the defendants disputed was the title of the claimant (Mars) to take enforcement action. The pleaded case was relatively technical but by the time of the trial, the only defendant that attended was the litigant in person and he “gave and made little coherent evidence or submissions going directly to the issues”. Mars had instructed solicitors and was represented by leading and junior counsel. The trial might have been said to be in a number of ways “one-sided” or unbalanced. The function of the trial judge in such circumstances was to ensure that fairness and justice prevailed. This required significant endeavour to assist the litigant in person to understand, identify and explain any relevant points and to allow him to develop whatever might reasonably support or oppose the rival declarations sought. The superior legal resources of one side compared with the other should not allow for its case to pass without critical scrutiny and the inability of the opposing party to concentrate on relevant matters without diversions should not be allowed to overwhelm any case on the merits. Accordingly, the court considered the manner of Popular Bank’s transfer of its rights to the Bank of Cyprus (a consequence of Cyprus’ near economic collapse and the Cypriot legislation that was passed), the Portfolio Sale Agreement under which the Bank of Cyprus sold the relevant legal interests to Mars and whether there was any legitimate basis for rectifying the register. It made declarations to the effect that the relevant loans and mortgages had been validly transferred via the Bank of Cyprus to Mars and that Mars was entitled to take enforcement action as regards the same.
However, the court declined to make a determination that Mars was entitled to be replaced as claimant in the 2012 Birmingham possession proceedings. Although Mars urged that such a declaration would be helpful for a busy lower court, the High Court was not persuaded that such a declaration was necessary or appropriate. County Courts are masters or mistresses of their own proceedings, and it is not for the High Court usually to tell the County Court what to do through separately initiated actions. In so far as the County Court required “help”, sufficient would be provided by the two declarations made and the judgment, without disrupting the established division and organisation of court business.
Elizabeth Haggerty is a barrister
