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The new mortgage possession pre-action protocol has attracted considerable publicity. But, what sanctions are there for non-compliance by a lender – and could the defendant argue that the court should strike out or dismiss the lender’s claim because of that breach?
A note in the NLJ addresses these points and takes the view that the court does not have power to strike out or dismiss without reason. However, it is open to the court to adjourn the hearing to allow proper discussion between the parties and for the lender to comply with the Protocol. At the same time, the court could consider making an adverse costs order against the lender, and it could include a denial to the lender of the right to add costs to the security where it is considered the costs have been thrown away by non-compliance.
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March 2009 |
