Halifax obtained a possession order against the borrower suspended on payment of the then current instalments, plus an additional sum towards the payment of the arrears. Only one payment was received and Halifax obtained a warrant of possession.

Relying on the court’s extensive discretion under s36 of the Administration of Justice Act 1970, the borrower unsuccessfully appealed on the basis that she was about to start a new job and was likely to be able to pay sums due under the mortgage in the future. The judge had held that the borrower’s record of past payments was as good a basis as any for assessing the ability to make future payments and that there was no prospect of her being able to pay in the future. The borrower appealed.

The Court of Appeal found that, despite her employment, the borrower had still been unable to maintain the current instalments, let alone any additional payment towards the arrears. It had to be concluded that she could not afford to service the mortgage and the judge’s finding would stand.

Halifax Plc v Okin