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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Barlcays Bank Plc v Alcorn  EWCA Civ 817 (17 May 2002)
Cite as:  EWCA Civ 817
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CAMBRIDGE COUNTY COURT
(His Honour Judge O'Brien)
Friday, 17th May 2002
B e f o r e :
|BARCLAYS BANK PLC|
|- v -|
|ELIZABETH ANNE ALCORN|
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0207-421 4040
Fax No: 0207-831 8838
Official Shorthand Writers to the Court)
Crown Copyright ©
"(i) the interaction of the rights conferred by Article 8 of the European Convention on Human Rights and/or Article 1 of the First Protocol to the Convention with the common law rules as to a mortgagee's right to possession of residential premises and/or section 36 of the Administration of Justice Act 1970.
(ii) the existence and extent of the obligation on a mortgagee in possession to repair the mortgaged property in order to comply with its duty to take reasonable care to obtain the true market value and/or to maximize its return from the property.
(iii) whether section 36 [of the 1970 Act] can be invoked in a case where the possession order has already been executed in part and, if not whether considerations under the European Convention require that the common law allow more flexibility than was held to exist in Birmingham Citizens Permanent Building Society v Caunt  Ch 883."
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law."
"It seems to me, on the very limited evidence which I do have, that the court is simply not in a position to take a view one way or the other as to whether the proper course for the bank to take is to pursue the insurance claim and apply the proceeds in repairing the property before undertaking any sale of it, or whether the stance of the bank currently being adopted is in fact justified."