Fernie v Lindum Group Ltd (CA - 3.2.2014)
The homeowners appeal against the enforcement of the final charging order obtained by the contractor to enforce the summary judgment enforcing the adjudicators decision awarding it a specified sum should be rejected
3 February, 2015
FERNIE v LINDUM GROUP LTD
Court of Appeal
3rd February 2014
The contractor obtained and enforced an adjudicator’s decision awarding it a specified sum by obtaining a final charging order over the homeowners’ dwelling and an order to enforce the charging order. The homeowners appealed against the enforcement order.
The Court of Appeal rejected that appeal. Lewison LJ in giving the reasons for that rejection stated that it could not be said that the judge at first instance exercised his discretion wrongly and that the homeowners did not have any realistic prospects of resisting enforcement as the result of any trial.
The homeowners took a point on appeal based on article 1 of the First Protocol to the Convention based on the Scottish decision in White & McKay Limited v Blyth & Blyth Consulting Engineers Limited (2013). Lewison LJ described that case as being very unusual because (i) The adjudication resulted in the builders having to pay something to the building owners (ii) What they were required to pay was money in respect of losses which were not going to arise until 2035 (iii) It was in those circumstances that the building owners had submitted that their rights under article 1 were being disproportionately interfered with and (iv) Whilst the judge decided the case on a slightly different ground, he went on to say that the article 1 point was well founded in the very unusual circumstances of that case. That case did not, however, help the homeowners in the circumstances of this case because the contractor had done the work, whether well or badly and itself had a proprietary interest in the dwelling as a result of the interim and then final charging orders which put it in the position of mortgagee.
Lewison LJ went on to state that even if the homeowners’ reliance on article 1 were to be changed into reliance on article 8 of the Convention, which guarantees respect for a person's home, there would still be a clash between rights, namely (i) The contractor’s right to be paid under the judgment which they have obtained from the court followed by the charging order and (ii) Respect for the home to which the homeowners were entitled. However one looked at the balance between those rights, there was no real prospect that the homeowners’ right to respect for their home would trump the contractor’s right to enforce the now long outstanding judgment.