Between April 2012 until May 2014, the borrowers lodged seven disputes with Financial Ombudsman Service which prevented the bank obtaining possession for those two years.
When the bank finally sought summary judgement the borrowers argued the FOS complaints were still on foot. The judge adjourned to allow the bank to have FOS email them and then put the email into an affidavit. Upon receipt of the affidavit he gave judgement without reconvening and allowing the borrower to comment on the FOS emails.
The borrowers appealed and the Court of Appeal commented:
In our opinion, it would have been preferable for the judge to have resumed the hearing of the Bank’s application for summary judgment rather than proceeding to make the Order.
Prior to those affidavits being filed, there was no certainty that any correspondence that FOS provided would be so clear and unequivocal that it would be impossible for the borrowers to refute it or to make any meaningful submissions on it.
As the contents of the emails did not entirely accord with the anticipated contents — it would have been prudent for his Honour to reconvene the hearing to enable the borrowers to receive the emails and respond to them. This is particularly so having regard to the fact that the borrowers were self-represented litigants and Betty’s first language was not English.
However, in all the circumstances of this case — the course adopted by the judge did not constitute a breach of the hearing rule of natural justice.
The Court held further:
To construe FOS’s Terms of Reference in a manner that entitled an individual to continue to lodge repeat disputes with FOS each of which engaged the processes and review rights in cl 5.3 would have the effect of enabling that individual to control the temporal scope of the prohibition in cl 13.1(a). Such a construction must be rejected because it would have the absurd result that the individual could indefinitely postpone the resolution of the relevant court proceeding.
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