Hi again(posted 7356 days ago)The West Brom case under appeal is WBBS v Wilkinson. I understand that it is due to be heard on March 3rd although there are/have been some problems getting legal aid.
Regarding the start of the limitation period, I think that the latest time that it starts is the issue of possession proceedings by the lender. There is a CA case (Southern and District Finance v Barnes [1995] CCLR 62) (which was about time orders) which stated, among other things, that "as a matter of law as well as common sense", when a lender issues possession procedings, it is claiming repayament of the full outstanding balance of the loan.
However, in the WBBS mortgages that I have seen, it states that the whole mortgage is repayable after one month, and that following one month's arrears, the lender is entitled to proceed against the borrower. I cannot remember the precise wording without checking. In any event, we will have to wait for the CA to look at it.
If it can be established that the limitation period started before the sale of the house, Bartlett makes it clear that no new cause of action arises on sale, even if there is a covenant in the mortgage to pay any shortfall.
However, I understand that in the Wilkinson case the WBBS has been unable to produce the original mortgage. It is not clear if they are going to try to rely on a 'typical' mortgage from the same period, although I understand that they have not filed any such document in the appeal papers.
If the WBBS cannot establish from appropriate documentation/evidence when the limitation period began, they are going to find it difficult to show that the debt is not statute barred. Where it has been alleged by a defendant that a debt is statute barred, it shifts the burden of proof to the claimant/lender which then has to prove the contrary.
If the lender cannot do this, it may lose the case. There is case law to support this. In London Congreational Union v Harriss and Harriss [1988] 1 All ER 15, CA, the claimant lost its case because it could not counter the defendant's allegation that time had expired and the debt was statute barred. It could not show when time had started to run and, as a result, it could not show that time had not expired.
This didn't seem to be an issue when the case that came up before the Circuit Judge in the county court, and the Barnes point was not apparently raised either.
We await the CA, which might surprise everyone, as it did in Bartlett
All the best
Guy