Mortgages and Secured Lending: Creation, Enforcement, and Borrower Protection

Mortgages and Secured Lending: Creation, Enforcement, and Borrower Protection

Introduction

Mortgages are among the most important legal mechanisms through which property ownership and credit markets interact. They allow individuals and businesses to obtain finance by providing a lender with security over land. A person purchasing a home may borrow a substantial proportion of its value and secure repayment against the property. A business may mortgage commercial premises to finance expansion, acquire equipment, or meet its working-capital requirements. In each case, the borrower receives access to credit while the lender obtains a proprietary security interest that can, subject to statutory and contractual requirements, be enforced if the debt is not repaid.

The law of mortgages in England and Wales attempts to reconcile two interests that may become sharply opposed when financial difficulties arise. The lender requires effective security and a reliable mechanism for recovering the money advanced. The borrower, however, retains an important interest in the property and must be protected against disproportionate enforcement, unfair contractual terms, and unlawful or procedurally defective repossession. In residential lending, these concerns are particularly significant because the mortgaged property may be the borrower’s principal home.

The legal framework is principally derived from the Law of Property Act 1925, the Land Registration Act 2002, the Administration of Justice Acts 1970 and 1973, the Consumer Credit Act 1974, and the regulatory rules of the Financial Conduct Authority (FCA). The Civil Procedure Rules and the Pre-Action Protocol for Possession Claims based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property also regulate the process by which lenders seek possession.

Modern mortgage law no longer treats the mortgage primarily as a transfer of ownership to the lender. In registered land, the ordinary legal mortgage is created by a charge by way of legal mortgage. The borrower remains the registered proprietor, while the lender acquires a registered security interest with rights and remedies defined by legislation and the mortgage deed.

This article examines the legal nature of mortgages, their creation and registration, the priority of competing charges, the rights of lenders, the enforcement of security, and the statutory and regulatory protections available to borrowers.

1. The Legal Nature of a Mortgage

A mortgage is a transaction by which a borrower grants a lender a security interest in property to secure repayment of a debt or performance of another obligation. The underlying loan and the security are legally connected but conceptually distinct. The loan creates the borrower’s personal obligation to repay. The mortgage gives the lender rights over the property if the borrower fails to perform that obligation.

The distinction is important because a mortgage does not ordinarily extinguish the borrower’s ownership. Instead, it subjects the property to a proprietary security interest. The borrower remains entitled to occupy, use, and deal with the property, subject to the terms of the mortgage and the lender’s rights.

The essential characteristics of a mortgage include:

• A debt or other secured obligation.
• Identifiable property provided as security.
• A legally effective instrument creating the security.
• A right in the lender to enforce the security when the relevant conditions are satisfied.
• A right in the borrower to redeem the mortgage by paying the secured obligations.

The last characteristic is fundamental. A mortgage is intended to secure repayment, not to transfer the beneficial ownership of the property permanently to the lender. Once the secured debt has been discharged, the lender’s security should be released.

1.1 The mortgage as a security interest

Historically, English mortgage law developed through the conveyance of an estate in land to the mortgagee, subject to the mortgagor’s right to recover the property by repaying the debt. The traditional legal mortgage could therefore involve a transfer of an estate, with the borrower’s right to redeem operating as an equitable interest.

The modern statutory system is different. Section 87 of the Law of Property Act 1925 provides for a legal mortgage to be created by a charge by deed expressed to be by way of legal mortgage. The mortgagee receives the protection, powers, and remedies associated with a legal mortgage without the need for the borrower to transfer the legal estate in the traditional manner.

This statutory arrangement is particularly important in registered land. The borrower remains the registered proprietor, while the lender’s charge is entered in the register as a legal interest affecting the title.

The relevant statutory provision is available in the Law of Property Act 1925, section 87.

1.2 The mortgagor and mortgagee

The borrower who grants the mortgage is traditionally called the mortgagor. The lender receiving the security is the mortgagee.

The mortgagor retains ownership subject to the mortgage. The mortgagee acquires the right to enforce the security according to the mortgage deed and applicable legislation.

The relationship is therefore not simply that of debtor and creditor. It also involves proprietary rights and obligations. A lender may have a personal claim for repayment and, separately, a right to enforce its security against the property.

The distinction becomes particularly important where the property is sold for less than the amount outstanding. The lender may recover the proceeds of sale and, subject to the terms of the loan and applicable law, pursue the borrower for the remaining debt.

1.3 The equity of redemption

The borrower’s right to redeem the mortgage is known as the equity of redemption. It reflects the principle that the mortgage exists to secure repayment and should not become an instrument through which the lender obtains an unjustified permanent benefit in the property.

The equity of redemption allows the borrower to recover the property free from the mortgage by paying the secured obligations. It also limits the extent to which a lender may impose contractual conditions that interfere with the borrower’s ability to redeem.

The courts have traditionally been suspicious of arrangements that make redemption excessively difficult or that attempt to convert a security transaction into an outright transfer of ownership.

The central principle is that a mortgage must remain a genuine security transaction. A contractual term cannot validly deprive the borrower of the substance of the right to redeem merely because it has been included in the mortgage documentation.

2. Types of Mortgages and Secured Lending

Mortgages are used in different financial and commercial contexts. The applicable legal and regulatory rules depend on the nature of the borrower, the property, the purpose of the borrowing, and the identity of the lender.

2.1 Residential mortgages

A residential mortgage is secured against property used, or intended to be used, as a home. The most familiar example is a loan used to purchase a house or flat.

Residential mortgage agreements commonly provide for repayment through monthly instalments over an agreed term. The instalments normally consist of capital and interest, although the precise structure depends on the mortgage product.

Residential lending is subject to extensive regulatory requirements where the agreement falls within the FCA’s regulated mortgage regime. These requirements concern matters such as affordability, disclosure, the treatment of customers in financial difficulty, and the handling of arrears.

Residential borrowers also benefit from statutory protections governing possession proceedings. A lender’s contractual right to enforce the mortgage does not remove the court’s jurisdiction under the Administration of Justice Acts.

2.2 Buy-to-let mortgages

A buy-to-let mortgage is generally used to finance property acquired for letting rather than occupation by the borrower.

The distinction between residential and buy-to-let lending is legally important. Not every buy-to-let mortgage falls within the same regulatory regime as an ordinary residential mortgage. Some consumer buy-to-let agreements are regulated, while many conventional investment-property mortgages are not regulated as residential mortgages under the FCA’s ordinary mortgage rules.

Nevertheless, the fact that a mortgage is unregulated does not mean that the lender has unrestricted enforcement powers. Contractual obligations, property law, the Civil Procedure Rules, and applicable pre-action requirements remain relevant.

The mortgage deed may also impose conditions relating to the letting of the property. A borrower who grants a tenancy without the lender’s required consent may breach the mortgage terms, potentially giving rise to enforcement consequences.

2.3 Commercial mortgages

Commercial mortgages are secured against property used for business or investment purposes. They may finance offices, warehouses, factories, retail premises, hotels, or other commercial assets.

Commercial lending is usually more individually negotiated than ordinary residential lending. The security documentation may include covenants concerning insurance, maintenance, permitted use, additional borrowing, disposal of the property, and the financial position of the borrower.

Commercial mortgage agreements may also be supported by guarantees, debentures, or charges over other assets. Where the borrower is a company, the lender may seek security over both the land and the company’s wider undertaking.

The legal consequences of enforcement may therefore extend beyond the property itself.

2.4 First and second mortgages

A first mortgage is the security that ordinarily has priority over subsequent mortgages affecting the same property.

A second mortgage is an additional charge granted over property already subject to an earlier mortgage. The second lender accepts that its security ranks behind the first charge unless the parties agree and properly register a different priority arrangement.

Second-charge lending is particularly significant in consumer credit. A homeowner may obtain additional finance without replacing the original mortgage, using the remaining equity in the property as security.

The second lender’s practical recovery depends on the value of the property after satisfaction of prior-ranking claims. If the proceeds of sale are insufficient to discharge the first mortgage, the second lender may recover little or nothing from the security.

2.5 Fixed and floating charges

Secured lending by companies may involve charges over assets other than land. The distinction between fixed and floating charges is particularly important in corporate finance.

A fixed charge attaches to identified assets over which the company cannot ordinarily deal freely without the lender’s consent. A floating charge, by contrast, may cover a changing class of assets, such as stock or receivables, which the company is permitted to use and dispose of in the ordinary course of business until the charge crystallises.

These forms of security are governed by a different set of rules from ordinary mortgages over land, although they may form part of the same financing arrangement.

This article focuses principally on mortgages and legal charges over land, while recognising that secured lending may involve a broader package of security rights.

3. Creation of a Legal Mortgage

The creation of a legal mortgage requires compliance with formal legal requirements. The precise process depends on whether the land is registered or unregistered, but a mortgage over land generally requires a properly executed deed.

3.1 The requirement of a deed

Section 52 of the Law of Property Act 1925 establishes the general rule that a conveyance of a legal estate or interest in land must be made by deed, subject to statutory exceptions.

A mortgage over land is therefore not ordinarily created as a legal mortgage merely by an informal agreement or an exchange of correspondence.

The deed identifies the parties, the property, the secured obligations, and the lender’s rights. It may also incorporate standard mortgage conditions or refer to separate contractual documentation governing repayment and enforcement.

The deed must satisfy the legal requirements for execution. These include the requirements concerning signature, witnessing where applicable, and delivery as a deed.

HM Land Registry’s Practice Guide 8: Execution of Deeds explains the formal requirements relevant to land transactions in England and Wales.

3.2 The mortgage deed

A mortgage deed normally contains several categories of provisions.

First, it identifies the secured property and the borrower granting the charge. Where there are multiple registered proprietors, the necessary proprietors must execute the mortgage.

Second, it identifies the secured liabilities. These may include the principal loan, contractual interest, specified fees, and other sums payable under the agreement.

Third, it establishes the borrower’s obligations. These commonly include payment of instalments, maintenance of insurance, preservation of the property, compliance with planning and legal requirements, and restrictions on disposal or further charges.

Finally, the deed sets out the lender’s rights and remedies. These may include the right to demand repayment following specified defaults, the power of sale, the appointment of a receiver, and the right to seek possession.

The mortgage deed must be read together with the loan agreement and any incorporated terms. A complete understanding of the parties’ obligations cannot always be obtained from the register alone.

3.3 Registered land

Most land in England and Wales is now registered. Where a mortgage is granted over registered land, the legal charge must be completed by registration.

Section 27 of the Land Registration Act 2002 identifies dispositions that must be completed by registration to operate at law. The creation of a legal charge is one of these dispositions.

The practical consequence is that execution of the mortgage deed and registration of the charge are distinct stages. A deed may have been signed, but the legal mortgage is not completed in the required manner until registration takes effect.

The registered proprietor remains the owner of the land. The lender’s charge is recorded in the register, usually in the charges register of the title.

HM Land Registry’s Practice Guide 29: Registration of Legal Charges and Deeds of Variation of Charge explains the procedure for registering a legal charge.

3.4 Unregistered land

Although the majority of land is registered, unregistered land remains legally significant.

A legal mortgage over unregistered freehold land is created through the appropriate deed-based mechanism under the Law of Property Act 1925. The mortgage may also need to be protected through registration as a land charge, depending on the nature of the interest and the applicable statutory provisions.

The Land Charges Act 1972 provides a system for registering specified interests affecting unregistered land. Failure to register an interest that is required to be registered can have serious consequences for its enforceability against purchasers.

The registration system for unregistered land differs from the title-based system applicable to registered land. A conveyancer must therefore establish the status of the title before determining the appropriate method of creating and protecting the mortgage.

4. Registration, Priority, and Competing Charges

Registration is central to the effectiveness and priority of mortgages over registered land. It provides a public record of the security interests affecting a title and helps determine the order in which lenders are entitled to recover from the property.

4.1 Entry of the charge in the register

When a legal charge is registered, it is entered in the charges register of the relevant title. The entry identifies the existence of the lender’s security and enables persons dealing with the property to discover that the land is subject to a mortgage.

The registered charge is a proprietary interest. It is not merely a record of a personal debt.

The registration process normally requires the appropriate application and supporting documentation. HM Land Registry may require a certified copy of the mortgage deed or the lender’s approved form of charge.

4.2 Priority between mortgages

Where several legal charges affect the same registered property, their priority is generally determined by the order in which they are entered in the register.

Section 48 of the Land Registration Act 2002 establishes the general rule that registered charges rank according to the order of their entries, subject to any contrary entry in the register.

This means that the first registered charge will ordinarily rank ahead of a later registered charge.

For example, assume that a property is worth £400,000 and is subject to two mortgages:

• First mortgage: £250,000.
• Second mortgage: £80,000.

If the property is sold for £300,000, the first lender will ordinarily be entitled to recover its secured debt before the second lender receives any proceeds. Subject to the costs and other claims properly payable from the sale, the second lender may recover the remaining £50,000.

If the property is sold for only £220,000, the first lender may not be repaid in full. The second lender’s security may therefore produce no recovery from the sale proceeds.

This illustrates why the ranking of charges is a fundamental element of secured lending.

4.3 Priority agreements and postponement

The ordinary order of priority may be altered by agreement between lenders. A lender may agree to postpone its charge so that another lender obtains priority.

Such arrangements are particularly important when refinancing or introducing additional secured borrowing.

A postponement agreement must be properly documented and, where necessary, reflected in the register. HM Land Registry’s Practice Guide 29 explains the requirements for registering postponements and the treatment of competing charges.

4.4 Further advances

A mortgage deed may provide that the lender can make further advances after the original loan has been granted.

The priority of those advances may depend on the statutory rules and the relevant entries in the register. Under the Land Registration Act 2002, the protection of priority for further advances is not always automatic in the same way as the original secured advance.

The lender’s obligation to make further advances may be noted in the register. HM Land Registry provides for this through the appropriate registration procedure.

The distinction matters where another lender later takes a charge over the same property. The parties must be able to determine whether a subsequent advance is protected by the priority of the original mortgage or ranks differently.

4.5 The importance of title investigation

Before advancing money against land, a lender will ordinarily investigate the title. The investigation identifies existing mortgages, restrictions, notices, easements, covenants, and other interests that may affect the value or enforceability of the security.

The lender must also establish that the borrower has the legal capacity and authority to grant the charge.

Where the property is jointly owned, the lender must ensure that the relevant legal proprietors execute the mortgage. Where the property is held by trustees, additional considerations may arise concerning the exercise of their powers and the validity of the transaction.

A failure to investigate title properly can result in defective security or an unexpected priority position.

5. The Borrower’s Rights and Obligations

A mortgage creates a continuing legal relationship. The borrower does not simply grant security at the beginning of the transaction and then become legally irrelevant. The borrower retains ownership and remains entitled to exercise the rights associated with that ownership, subject to the mortgage.

5.1 The right to occupy and use the property

In an ordinary residential mortgage, the borrower is generally entitled to occupy the property as a home. The lender’s charge does not, by itself, give the lender an unrestricted right to interfere with occupation.

The borrower must, however, comply with the mortgage terms. These may restrict letting, structural alterations, commercial use, or the creation of further interests without the lender’s consent.

A breach of such a condition may constitute a default under the mortgage agreement. Whether the breach justifies enforcement will depend on the terms of the deed, the nature of the breach, and the applicable legal rules.

5.2 Payment obligations

The borrower’s primary obligation is to repay the loan in accordance with the agreed terms.

A repayment mortgage normally requires monthly payments that reduce both the capital and interest over the agreed term. An interest-only mortgage requires payment of interest during the term, with the capital generally becoming repayable at the end.

The borrower must also pay any other sums that are validly due under the mortgage agreement. These may include certain administration costs, insurance expenses, or enforcement costs, subject to the applicable contractual and regulatory restrictions.

5.3 Insurance and maintenance

Mortgage deeds commonly require the borrower to maintain appropriate insurance over the property. This protects the value of the lender’s security in the event of fire, flooding, or other insured damage.

The borrower may also be required to keep the property in reasonable repair and avoid conduct that materially reduces its value.

These obligations reflect the lender’s legitimate interest in preserving the asset that secures repayment. They do not, however, mean that the lender becomes responsible for ordinary property maintenance while the borrower remains in possession.

5.4 Restrictions on disposal and further borrowing

A mortgage agreement may restrict the borrower’s ability to sell, transfer, lease, or grant additional security over the property without consent.

These restrictions protect the lender against transactions that could undermine its security or alter the priority position.

A borrower who wishes to sell or refinance the property will generally need to arrange repayment or redemption of the existing mortgage, unless the lender agrees to another arrangement.

5.5 The right to redeem

The borrower retains the right to redeem the mortgage by paying the secured obligations. The mortgage deed may specify the procedure for obtaining a redemption statement and the sums payable on completion.

The lender must not impose an unlawful restraint on redemption. A contractual provision that effectively prevents the borrower from recovering the property after payment of the secured debt may be invalid.

The right to redeem is a defining feature of mortgage law and is closely connected with the equitable principle that the mortgage is security rather than an outright transfer of ownership.

6. The Rights and Remedies of the Mortgagee

A lender’s security would have limited practical value if it could not be enforced when the borrower defaults. The Law of Property Act 1925 therefore provides mortgagees with a number of statutory powers, subject to the terms of the mortgage and other applicable restrictions.

The principal remedies include possession, sale, appointment of a receiver, and proceedings for repayment of the debt.

6.1 The right to possession

A mortgagee may have a right to take possession of the mortgaged property. The right arises from the nature of the mortgage security and is supported by the statutory framework.

In principle, the right may arise before the lender has exercised its power of sale. The lender’s ability to seek possession is therefore not necessarily dependent on the completion of a sale.

However, residential possession is subject to important statutory protections. The Administration of Justice Acts permit courts to adjourn proceedings, suspend possession orders, or postpone possession where the statutory conditions are met.

The existence of a legal right to possession must therefore be distinguished from the question of whether and when that right may lawfully be enforced.

6.2 The statutory power of sale

Section 101 of the Law of Property Act 1925 confers certain powers on a mortgagee where the mortgage is made by deed, including a power of sale when the mortgage money has become due.

The statutory power is subject to conditions governing when it becomes exercisable. Section 103 identifies circumstances in which the power of sale becomes exercisable, including specified periods of notice, payment defaults, or breaches of mortgage obligations.

The mortgage deed may also contain express provisions concerning the power of sale.

The statutory framework is important because the lender’s ability to sell the property is not determined solely by the existence of an unpaid debt. The lender must satisfy the relevant conditions for exercising the power.

The provisions can be consulted in the Law of Property Act 1925, section 101.

6.3 Appointment of a receiver

A mortgagee may be entitled to appoint a receiver where the relevant statutory or contractual conditions are satisfied.

Receivers are particularly important in commercial property lending. They may be appointed to collect rents, manage the property, preserve its value, and apply income towards the secured debt.

The appointment of a receiver may allow the lender to obtain income from the property without immediately seeking possession or sale.

A receiver’s powers and duties depend on the mortgage documentation and the applicable statutory framework. A receiver appointed under the Law of Property Act 1925 may act as the agent of the mortgagor, subject to the statutory provisions and the terms of appointment.

Receivership is therefore not simply an administrative arrangement. It is a legal mechanism through which the lender seeks to protect and realise the value of its security.

6.4 Personal proceedings for repayment

A mortgage is security for a debt, but the borrower’s personal obligation to repay normally continues independently of the lender’s rights over the property.

The lender may therefore bring proceedings for a money judgment where the borrower has failed to repay sums due.

This becomes especially significant where the property is sold and the proceeds are insufficient to discharge the secured debt.

The lender may seek to recover the shortfall from the borrower, subject to the terms of the agreement, limitation rules, insolvency law, and any applicable statutory restrictions.

6.5 The duty when exercising the power of sale

A mortgagee exercising a power of sale must comply with the legal duties governing the realisation of the security.

The lender is entitled to act in its own commercial interests, but it must not exercise the power arbitrarily or in bad faith. In particular, it must take reasonable care to obtain the proper market value of the property at the time of sale.

The classic authority is Cuckmere Brick Co Ltd v Mutual Finance Ltd [1971] Ch 949. The Court of Appeal held that a mortgagee exercising a power of sale must take reasonable precautions to obtain the true market value of the property.

The case is important because it demonstrates that the mortgagee’s power of sale is not unlimited. The lender is not required to postpone enforcement indefinitely in the hope of achieving a better price, but it must conduct the sale with appropriate care.

The proceeds of sale are applied towards the costs of sale, the secured debt, and any other interests entitled to payment according to their priority. Any surplus should be accounted for to the person entitled to it.

7. Mortgage Arrears and the Enforcement Process

Mortgage enforcement often begins when the borrower falls behind with payments. A missed instalment does not automatically mean that the lender will immediately repossess the property. The legal and regulatory framework expects lenders to communicate with borrowers, consider repayment arrangements, and explore reasonable alternatives before taking possession proceedings.

7.1 Default and arrears

A borrower is in arrears when payments due under the mortgage have not been made in full and on time.

The mortgage deed will normally define the consequences of default. These may include additional interest, administration charges, the lender’s right to demand repayment, and the possibility of enforcement.

However, a lender’s contractual rights operate within the wider regulatory framework. For regulated mortgage contracts, the FCA’s Mortgage Conduct of Business rules impose obligations concerning the treatment of customers who are experiencing payment difficulties.

The relevant rules are contained in FCA Handbook, MCOB 13: Payment Difficulties and Repossessions.

7.2 Communication with the borrower

Where a borrower falls into arrears, a regulated lender must provide information about the missed payments, the amount of the shortfall, charges incurred, and the outstanding debt.

The lender must also provide relevant information about the consequences of continued non-payment.

The purpose is to ensure that borrowers understand their financial position and have an opportunity to address the arrears before enforcement becomes necessary.

The FCA rules require lenders to treat customers fairly and to make reasonable efforts to agree an appropriate method of repaying arrears.

7.3 Alternative repayment arrangements

A lender should consider whether the borrower’s circumstances permit a realistic arrangement that avoids possession proceedings.

Depending on the circumstances, possible arrangements may include:

• Extending the mortgage term.
• Temporarily reducing payments.
• Changing the repayment structure.
• Deferring interest.
• Capitalising arrears by adding them to the outstanding mortgage balance.
• Allowing the borrower a reasonable period to sell the property voluntarily.

These arrangements are not automatic entitlements. Their suitability depends on affordability, the borrower’s circumstances, the terms of the mortgage, and the lender’s regulatory obligations.

The central principle is that repossession should not be treated as the first response to payment difficulties where a reasonable alternative is available.

8. Possession Proceedings and the Administration of Justice Acts

Residential mortgage possession is governed by a combination of property law, civil procedure, and statutory protections. The lender may have a right to possession, but the court has powers to protect borrowers in appropriate circumstances.

8.1 The Administration of Justice Act 1970, section 36

Section 36 of the Administration of Justice Act 1970 is one of the most important borrower-protection provisions in mortgage law.

It applies to certain possession proceedings involving land that includes a dwelling-house. Where the borrower is likely to be able to pay sums due under the mortgage within a reasonable period, the court may adjourn the proceedings, suspend the possession order, or postpone possession.

The provision gives the court discretion to prevent immediate repossession where the borrower can realistically remedy the default.

The statutory power is not a general permission to disregard mortgage obligations. The borrower must demonstrate a credible basis for repayment, and the court must consider the circumstances of the case.

8.2 What constitutes a reasonable period?

The meaning of a reasonable period has been considered in several important cases.

In Cheltenham & Gloucester Building Society v Norgan [1996] 1 WLR 343, the Court of Appeal considered the approach to repayment of mortgage arrears under section 36.

The court held that, in an appropriate case, the remaining term of the mortgage may provide the starting point for assessing what constitutes a reasonable period for repayment of arrears.

This is important because it prevents courts from automatically requiring borrowers to clear substantial arrears over an unrealistically short period.

For example, a borrower with fifteen years remaining on a mortgage may be able to repay arrears through manageable additional payments over the remaining term. Whether such an arrangement is appropriate depends on the borrower’s financial circumstances and the amount of the arrears.

The Norgan approach is therefore concerned with practical affordability rather than an inflexible timetable.

8.3 Section 8 of the Administration of Justice Act 1973

Section 8 of the Administration of Justice Act 1973 supplements the protection available under section 36 of the 1970 Act.

It addresses the calculation of sums payable under a mortgage and the circumstances in which the court may consider the payment obligations for the purpose of exercising its powers.

Together, the two provisions form an important part of the statutory framework governing residential mortgage possession.

They allow courts to consider whether a borrower can realistically restore the mortgage account rather than treating every payment default as requiring immediate loss of the home.

8.4 The court’s discretion is not unlimited

The statutory protection does not mean that a borrower can remain in occupation indefinitely without paying the mortgage.

If the borrower cannot demonstrate a realistic ability to meet the ongoing instalments and repay the arrears within a reasonable period, the court may make an outright possession order.

The court must also consider the lender’s legitimate interest in recovering the debt and protecting its security.

The balance is therefore between the borrower’s opportunity to preserve the home and the lender’s right to enforce a valid mortgage.

9. The Mortgage Possession Pre-Action Protocol

Before bringing many residential mortgage possession claims, lenders are expected to comply with the Pre-Action Protocol for Possession Claims based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property.

The Protocol applies to specified residential mortgages and secured loans, including regulated first-charge mortgages, regulated second-charge mortgages, and certain unregulated residential mortgages. It does not apply to buy-to-let mortgages.

Its central purpose is to encourage communication and negotiation before litigation.

The current Protocol is available through the Civil Procedure Rules website.

9.1 Initial contact and disclosure

When a borrower falls into arrears, the lender should provide clear information about the debt and the missed payments.

The Protocol requires the lender to provide details of the outstanding mortgage balance, the amount of arrears, and any interest or charges that have been or may be added.

The lender should also seek information about the occupation of the property. This is important because persons living in the property may have interests or rights that affect the possession proceedings.

The borrower should be encouraged to contact the local authority and seek independent debt advice where appropriate.

9.2 Consideration of repayment proposals

The parties should take reasonable steps to discuss the causes of the arrears, the borrower’s financial position, and possible repayment arrangements.

If the borrower makes a payment proposal, the lender must respond promptly. If it rejects the proposal, the Protocol expects a written explanation within the specified period.

The lender should also give the borrower a reasonable opportunity to consider any repayment proposal made by the lender.

The Protocol is designed to prevent possession proceedings from becoming an automatic response to arrears without meaningful consideration of alternatives.

9.3 Possession as a last resort

The Protocol states that possession proceedings should be a last resort and should not normally be commenced until other reasonable attempts to resolve the situation have failed.

The parties should consider whether the mortgage term can be extended, the mortgage type changed, interest payments deferred, or arrears capitalised.

Where the borrower can demonstrate that a property is being marketed for sale at an appropriate price, the lender must consider postponing proceedings to allow a realistic opportunity for voluntary sale.

The Protocol also addresses circumstances in which the borrower has applied for relevant state support or insurance payments, or needs time to obtain independent debt advice.

9.4 Consequences of non-compliance

The Protocol does not remove the lender’s substantive rights under the mortgage. However, failure to comply may affect the conduct of the proceedings.

The court may take non-compliance into account when considering whether to adjourn the claim or impose costs consequences.

The Protocol therefore operates as an important procedural safeguard, encouraging parties to resolve disputes before resorting to litigation.

10. Financial Conduct Authority Regulation and Borrower Protection

The FCA regulates many forms of residential mortgage lending and mortgage administration. Its rules are intended to ensure that lenders act responsibly when granting credit and fairly when borrowers encounter financial difficulties.

The regulatory framework is particularly important because the legal right to enforce a mortgage does not operate in isolation from the lender’s conduct obligations.

10.1 Mortgage Conduct of Business rules

The FCA’s Mortgage Conduct of Business sourcebook, commonly known as MCOB, contains detailed requirements governing regulated mortgage activities.

These rules cover matters such as:

• Information provided to borrowers.
• Assessment of affordability.
• Mortgage advice and suitability where applicable.
• Financial promotions.
• Disclosure of interest rates, charges, and other contractual terms.
• The treatment of borrowers experiencing payment difficulties.
• Repossession procedures.

The rules apply according to the regulatory classification of the particular agreement and the activity being carried out. Not every loan secured against land is automatically a regulated mortgage contract.

10.2 Affordability and responsible lending

Responsible lending is an important feature of the modern regulatory regime.

Lenders must assess the borrower’s ability to repay before entering into a regulated mortgage contract. The assessment should consider income, expenditure, existing financial commitments, and the likely effect of changes in interest rates or other relevant circumstances.

The objective is to reduce the risk of lending that is unsustainable from the outset.

Affordability assessment does not guarantee that a borrower will never encounter financial difficulty. Employment loss, illness, changes in household circumstances, or wider economic conditions may make a previously affordable mortgage difficult to maintain.

Nevertheless, responsible lending obligations seek to prevent avoidable financial harm caused by inadequate assessment at the point of lending.

10.3 Treating customers in arrears fairly

MCOB 13 requires firms to deal fairly with customers who have or may have payment difficulties.

The lender must make reasonable efforts to agree a method of repaying arrears, taking account of the customer’s circumstances. It should also consider the desirability of reaching an arrangement that avoids possession.

Where a reasonable repayment arrangement cannot be agreed, the lender should allow the customer a reasonable period to sell the property where appropriate.

The FCA rules also require lenders to maintain policies and procedures for dealing with customers in financial difficulty and to keep adequate records of their dealings with those customers.

10.4 The Consumer Duty

The FCA’s Consumer Duty is also relevant to the treatment of retail customers within its scope.

It requires firms to act to deliver good outcomes for retail customers, including through appropriate products and services, clear communications, and suitable customer support.

In mortgage arrears cases, the Consumer Duty reinforces the importance of fair treatment and effective communication. A lender should not rely on technically correct but confusing communications where the borrower cannot reasonably understand the consequences of the proposed action.

The application of the Duty depends on the relevant regulatory relationship and the scope of the particular activity.

10.5 Complaints and the Financial Ombudsman Service

A borrower who believes that a lender has acted unfairly or breached applicable regulatory requirements may submit a complaint through the lender’s internal complaints procedure.

If the dispute is not resolved, the borrower may be able to refer it to the Financial Ombudsman Service, provided the complaint falls within the Ombudsman’s jurisdiction.

The Ombudsman may consider whether the lender acted fairly and reasonably, taking account of the relevant law, regulations, and good industry practice.

The Ombudsman’s role is distinct from that of the court. It does not replace the court’s jurisdiction over possession claims or the determination of proprietary rights.

11. The Sale of Mortgaged Property

Where a borrower cannot maintain the mortgage, a sale may be preferable to repossession. A voluntary sale can sometimes produce a better financial result and allow the borrower greater control over the timing and conditions of the transaction.

11.1 Voluntary sale

A borrower may sell the property and use the proceeds to redeem the mortgage.

The lender will normally provide a redemption statement identifying the amount required to discharge the secured debt on a specified date.

Where the sale proceeds exceed the secured debt and other relevant costs, the surplus belongs to the person entitled to it.

If the sale proceeds are insufficient, a shortfall may remain payable by the borrower.

11.2 Sale by the mortgagee

If the borrower defaults and the statutory power of sale becomes exercisable, the mortgagee may sell the property in accordance with the applicable legal requirements.

The lender is not required to obtain the borrower’s consent to a sale where the power has been validly exercised.

However, the lender must comply with the relevant duties governing the sale, including the duty to take reasonable care to obtain the proper market value.

A mortgagee’s sale may therefore be challenged where the lender has acted improperly or failed to comply with its legal obligations.

11.3 Application of the proceeds

The proceeds of a mortgagee’s sale are generally applied in an established order.

The costs properly incurred in the sale are paid first. The secured debt is then discharged according to the relevant priority arrangements. Any remaining surplus must be accounted for to the person entitled to receive it.

Where multiple charges exist, the order of priority becomes particularly important. A junior lender cannot ordinarily expect to receive payment before a prior-ranking charge has been satisfied.

11.4 Mortgage shortfall

A mortgage shortfall arises where the net proceeds of sale are insufficient to repay the outstanding secured debt.

The lender may seek to recover the remaining amount from the borrower personally.

The borrower should not assume that surrendering the property or allowing repossession automatically extinguishes the debt.

The shortfall may be subject to limitation rules, and the relevant period depends on the nature of the claim and the applicable statutory provisions. The Limitation Act 1980 distinguishes between certain claims for sums secured by a mortgage and claims for recovery of other amounts.

The legal treatment of interest and capital may also differ. A lender must therefore establish the basis of the claim and comply with the applicable limitation rules.

12. Protection of Occupiers and Third Parties

Mortgage enforcement may affect people other than the borrower. A property may be occupied by a spouse, partner, children, tenants, or other persons who have an interest in the home.

The law therefore requires attention to the rights and circumstances of occupiers.

12.1 Beneficial interests and family occupation

A person who is not a registered proprietor may nevertheless have a beneficial interest in the property.

For example, a partner may have contributed to the purchase price or mortgage payments in circumstances giving rise to a beneficial interest under a trust.

The existence of such an interest may affect the priority and enforceability of the mortgage, depending on the circumstances in which the mortgage was granted and the applicable registration rules.

A lender will ordinarily investigate the occupation of the property and may require adult occupiers to sign consent or postponement documentation.

The purpose is to identify potential rights that could affect the lender’s security.

12.2 Occupiers and possession proceedings

The Pre-Action Protocol requires lenders to take reasonable steps to establish whether persons other than the borrower occupy the property.

This is important because a possession order may affect people who were not parties to the original loan agreement.

The court may need to consider whether additional directions are required and whether an occupier has an independent right to remain in the property.

An authorised tenant, for example, may have rights under a tenancy that must be taken into account when the lender seeks possession.

12.3 Tenants and mortgages

A tenancy granted before a mortgage may have priority over a later mortgage in certain circumstances. Conversely, a tenancy granted after a mortgage may be subject to the lender’s rights, particularly where the lender did not consent to the letting.

The precise position depends on the nature of the tenancy, the registration status of the land, the priority rules, and the mortgage terms.

A lender’s enforcement rights should not be confused with an automatic power to disregard every third-party interest affecting the property.

13. Consumer Credit and Second-Charge Mortgages

Second-charge mortgages occupy an important position between property law and consumer credit regulation.

They allow a borrower to obtain additional finance secured against a property already subject to an existing mortgage. The borrower may use the funds for home improvements, debt consolidation, or other purposes.

The legal and regulatory classification of the agreement is important because it determines which statutory protections apply.

13.1 The Consumer Credit Act 1974

The Consumer Credit Act 1974 regulates many consumer credit agreements, including certain loans secured against residential property.

The Act contains provisions concerning the form and content of regulated agreements, enforcement, unfair relationships, and the rights of borrowers.

The precise application of the Act depends on the nature of the agreement and the statutory definitions and exemptions.

A second-charge mortgage may fall within the FCA’s regulated mortgage framework rather than being treated simply as an ordinary unsecured consumer credit agreement. The classification must therefore be established before determining which rules apply.

13.2 Unfair relationships

Sections 140A to 140C of the Consumer Credit Act 1974 provide the court with powers to examine whether the relationship between a creditor and debtor arising from a credit agreement is unfair to the debtor.

The court may consider the terms of the agreement, the way the creditor has exercised or enforced its rights, and any other relevant circumstances.

Where an unfair relationship is established, the court has broad powers to grant relief. These may include requiring the creditor to repay sums, reducing or discharging liabilities, or altering the agreement.

The provisions are significant because they allow the court to examine the substance of the lending relationship rather than focusing exclusively on whether the borrower signed the contractual documents.

13.3 Debt consolidation and secured borrowing

A borrower may use a second-charge mortgage to consolidate several unsecured debts into a single secured loan.

Although this may reduce monthly payments, it can increase the long-term risk to the borrower. Debts that were previously unsecured become secured against the home.

If the borrower fails to repay the new loan, the lender may seek to enforce the security.

The distinction between unsecured and secured borrowing is therefore fundamental. A lower monthly payment does not necessarily mean that the borrower is in a safer financial position.

14. Discharge and Redemption of a Mortgage

A mortgage does not remain permanently attached to the property once the secured obligations have been satisfied.

When the borrower repays the secured debt, the lender should release the security. This process is commonly referred to as discharge or redemption.

14.1 Redemption statement

The borrower or conveyancer will ordinarily request a redemption statement from the lender.

The statement identifies the amount required to repay the mortgage on a specified date. It may include outstanding capital, interest accrued to the redemption date, and other sums properly payable under the agreement.

The amount may change if completion takes place on a different date.

14.2 Discharge of a registered charge

For registered land, the lender must arrange for the charge to be removed from the register following repayment.

HM Land Registry provides procedures for registering the discharge of a legal charge. The appropriate method depends on the documentation and the lender’s arrangements.

The relevant guidance is contained in Practice Guide 31: Discharge of Charges.

14.3 The effect of discharge

Once the charge has been properly discharged, the property is no longer subject to that mortgage security.

This does not necessarily mean that every other financial or legal obligation connected with the borrower has disappeared. There may be separate debts, guarantees, or other charges affecting the property.

The register should therefore be checked to establish whether all relevant security interests have been removed.

15. Mortgage Enforcement, Insolvency, and Corporate Borrowers

Secured lending becomes particularly complex where the borrower is insolvent or enters formal insolvency proceedings.

The lender’s rights depend on the nature and validity of the security, the priority of the charge, and the insolvency procedure involved.

15.1 Individual insolvency

Where an individual borrower becomes bankrupt, the mortgagee generally retains its security over the property, subject to the applicable insolvency rules.

The mortgage does not simply disappear because the borrower has become bankrupt.

The trustee in bankruptcy must take account of the secured lender’s proprietary rights. The lender may enforce the security in accordance with the relevant legal framework.

However, the borrower’s personal liability for any unsecured shortfall may be affected by the bankruptcy process.

15.2 Corporate insolvency

Where a company grants a mortgage or charge over land and subsequently enters insolvency proceedings, the secured lender’s rights depend on the nature and priority of the security.

A registered legal mortgage over land will generally give the lender a proprietary claim against the property.

Where the company has granted additional security over other assets, the lender may also have rights under a debenture or other security instrument.

Corporate charges are subject to registration requirements under the Companies Act 2006. In particular, charges created by a UK company generally need to be registered at Companies House within the applicable statutory period.

Failure to register a charge within the required period can have serious consequences, including the risk that the security becomes void against a liquidator, administrator, or creditor.

15.3 Administration and enforcement restrictions

In corporate administration, statutory restrictions may limit the ability of secured creditors to enforce security without the consent of the administrator or permission of the court.

The purpose is to provide an opportunity for the administration to achieve its statutory objectives, which may include rescuing the company or achieving a better result for creditors than immediate liquidation.

These restrictions do not necessarily extinguish the lender’s security. They regulate the circumstances in which enforcement may proceed.

The relationship between secured lending and insolvency law is therefore an important part of the wider legal framework governing mortgages.

16. Unlawful Enforcement and Remedies for Borrowers

A lender’s rights are substantial, but they are not unlimited. Borrowers may challenge enforcement where the mortgage is invalid, the lender has failed to satisfy statutory conditions, or the enforcement process has involved unlawful conduct.

16.1 Defects in the mortgage deed

A mortgage may be challenged where the deed was not properly executed, the borrower lacked legal capacity, or the person granting the security did not have authority to do so.

Defects in the documentation may affect whether the lender acquired a valid legal charge or whether the charge has the priority claimed.

The consequences depend on the nature of the defect and whether an equitable security or other enforceable obligation nevertheless arose.

16.2 Incorrect calculation of the debt

A borrower may dispute the amount claimed by the lender.

The dispute may concern unpaid instalments, interest, default charges, legal costs, or payments that have not been properly credited.

A lender must be able to explain the amount claimed and provide sufficient information to support its calculation.

Where the debt is disputed, the borrower may raise the issue in proceedings or through the lender’s complaints process, depending on the nature of the dispute.

16.3 Breach of regulatory obligations

A lender’s failure to comply with applicable FCA rules may give rise to a complaint and, in appropriate circumstances, a claim or other legal remedy.

The effect of a regulatory breach depends on the relevant rule, the statutory framework, and the facts of the case.

A regulatory breach does not automatically invalidate the mortgage or prevent possession. However, it may be relevant to the court’s consideration of the lender’s conduct and to the availability of other remedies.

16.4 Improper exercise of the power of sale

A borrower may have a claim where a mortgagee has failed to comply with its duties when exercising the power of sale.

For example, a lender may be liable where it has failed to take reasonable care to obtain the proper market value of the property.

The decision in Cuckmere Brick Co Ltd v Mutual Finance Ltd remains a leading authority on this duty.

16.5 Breach of the pre-action requirements

Failure to comply with the Mortgage Possession Pre-Action Protocol may result in procedural consequences.

The court may adjourn proceedings, require further information, or take the lender’s conduct into account when dealing with costs.

The Protocol is not itself a complete defence to possession. Its purpose is to regulate the conduct expected before proceedings are issued and to encourage reasonable attempts at settlement.

17. The Wider Significance of Mortgage Law

Mortgage law plays a central role in the property market and the wider economy. It allows lenders to advance substantial sums while reducing their exposure through security over valuable assets.

For individuals, mortgage finance makes home ownership possible without requiring the full purchase price to be available immediately. For businesses, secured lending can provide the capital needed to acquire premises, invest in operations, or restructure existing liabilities.

However, the availability of secured credit also creates risks. A mortgage may expose a borrower to the loss of a home or business premises if the debt cannot be repaid. The consequences can extend beyond the borrower to family members, employees, tenants, and other creditors.

The legal system therefore has to maintain a careful balance. If mortgage enforcement is too uncertain, lenders may be reluctant to provide credit or may increase its cost. If enforcement is excessively harsh, borrowers may lose property in circumstances where a reasonable repayment arrangement could have preserved the transaction.

The modern framework seeks to manage this tension through formal creation and registration requirements, clear priority rules, contractual remedies, judicial supervision, and financial regulation.

The most important principle is that a mortgage is a security transaction governed by law. The lender’s rights are substantial, but they must be exercised within the limits imposed by property law, statutory protections, regulatory duties, and procedural fairness.

Conclusion

Mortgages and secured lending form an essential part of the legal and financial structure of property ownership in England and Wales. A mortgage enables a borrower to obtain finance by granting a lender a proprietary security interest over land. The borrower ordinarily remains the owner, while the lender obtains rights that may be enforced if the secured obligations are not fulfilled.

The creation of a legal mortgage requires compliance with formal requirements, including execution by deed and, in the case of registered land, completion by registration. The Land Registration Act 2002 provides the framework for the registration and priority of legal charges, while the Law of Property Act 1925 establishes important rights and remedies of mortgagees.

Where a borrower defaults, the lender may be entitled to seek possession, exercise a power of sale, appoint a receiver, or pursue a personal claim for repayment. These remedies are subject to statutory requirements and legal duties. In particular, residential borrowers benefit from the protections contained in the Administration of Justice Acts 1970 and 1973, the Mortgage Possession Pre-Action Protocol, and the FCA’s rules governing payment difficulties and repossession.

The law does not eliminate the consequences of failing to repay a mortgage. It does, however, require that enforcement takes place through legally recognised procedures and that lenders act within the limits of their statutory, contractual, and regulatory powers.

The resulting framework reflects the fundamental character of the mortgage: it is a powerful form of security, but it remains security for a debt rather than an unrestricted right to take ownership of another person’s property.

Key Takeaways

1. A mortgage is a proprietary security interest granted over property to secure repayment of a debt or performance of another obligation.
2. The borrower is the mortgagor and the lender is the mortgagee.
3. The equity of redemption protects the borrower’s right to recover the property by satisfying the secured obligations.
4. A legal mortgage over registered land is ordinarily created by a charge by deed and completed by registration.
5. Section 87 of the Law of Property Act 1925 provides for the modern legal mortgage by charge.
6. Registered charges generally rank according to the order of their entries in the register, subject to applicable statutory provisions and contrary entries.
7. The mortgagee may have rights to possession, sale, appointment of a receiver, and recovery of the debt.
8. The statutory power of sale is governed principally by sections 101 and 103 of the Law of Property Act 1925.
9. A mortgagee exercising the power of sale must take reasonable care to obtain the proper market value of the property.
10. Section 36 of the Administration of Justice Act 1970 allows courts to adjourn or suspend possession in appropriate circumstances.
11. The decision in Cheltenham & Gloucester Building Society v Norgan establishes an important approach to assessing a reasonable period for repayment of arrears.
12. The Mortgage Possession Pre-Action Protocol expects lenders to treat possession as a last resort in the cases within its scope.
13. FCA rules require regulated lenders to treat customers experiencing payment difficulties fairly and consider reasonable alternatives to repossession.
14. Second-charge mortgages and other forms of secured consumer lending may fall within additional regulatory protections.
15. Discharge of the mortgage should be reflected in the land register once the secured obligations have been satisfied.

Frequently Asked Questions

1. What is a mortgage under the law of England and Wales?

A mortgage is a security interest granted over property to secure repayment of a loan or performance of another obligation. The borrower generally remains the owner, while the lender obtains rights to enforce the security if the borrower defaults.

2. Does a mortgage transfer ownership of the property to the bank?

No. Under the modern system for registered land, a legal mortgage is ordinarily created by a registered charge. The borrower remains the registered proprietor, while the lender holds a security interest over the property.

3. What is the difference between a legal mortgage and an equitable mortgage?

A legal mortgage satisfies the statutory and formal requirements for a legal security interest. An equitable mortgage may arise where the transaction creates an enforceable equitable security but does not satisfy all the requirements for a legal mortgage. The distinction can affect priority, enforcement, and the remedies available.

4. Does a mortgage have to be registered?

Where a mortgage is created over registered land, registration is required to complete the creation of the legal charge. The relevant statutory framework is contained in section 27 of the Land Registration Act 2002. Different rules apply to unregistered land.

5. What happens if a borrower stops paying a mortgage?

The borrower may fall into arrears and breach the mortgage agreement. The lender may seek repayment, negotiate an alternative arrangement, or eventually pursue enforcement. In residential cases within the relevant statutory and procedural framework, the lender must consider applicable borrower protections before seeking possession.

6. Can a mortgage lender repossess a home without going to court?

A lender’s right to possession and the procedure for exercising it are separate questions. Residential possession normally involves court proceedings, and statutory protections may allow the court to suspend or postpone possession. The position can depend on the circumstances and the nature of the property.

7. Can a court stop a lender from repossessing a home?

Yes, in appropriate circumstances. Section 36 of the Administration of Justice Act 1970 gives the court power to adjourn proceedings, suspend a possession order, or postpone possession where the statutory conditions are met. The borrower must generally demonstrate a realistic ability to pay the sums due within a reasonable period.

8. What is the significance of the Norgan case?

In Cheltenham & Gloucester Building Society v Norgan [1996] 1 WLR 343, the Court of Appeal established that the remaining term of the mortgage may provide the starting point for assessing a reasonable period for repayment of arrears. This can enable borrowers to propose more manageable repayment arrangements.

9. What is a second-charge mortgage?

A second-charge mortgage is a further legal charge over property already subject to an earlier mortgage. It provides additional security to another lender, but it ordinarily ranks behind the first mortgage.

10. Can a lender sell a mortgaged property without the borrower’s consent?

Yes, if the lender has a valid power of sale and the statutory conditions for exercising it have been satisfied. The lender must also comply with its legal duties, including the duty to take reasonable care to obtain the proper market value.

11. What happens if the property sells for less than the outstanding mortgage?

The sale proceeds are applied towards the secured debt according to the applicable priority rules. If the proceeds are insufficient, a mortgage shortfall may remain. The lender may seek to recover that shortfall from the borrower personally, subject to the relevant legal and limitation rules.

12. Can a borrower challenge a mortgage lender’s conduct?

Yes. Depending on the circumstances, a borrower may challenge the validity of the mortgage, dispute the amount claimed, complain about regulatory breaches, or seek a remedy for improper enforcement. Complaints concerning regulated mortgage activities may also be referred to the Financial Ombudsman Service where its jurisdiction applies.

13. What happens when a mortgage is fully repaid?

The borrower redeems the mortgage by paying the secured obligations. The lender should then arrange for the charge to be discharged and removed from the registered title. The property is no longer subject to that mortgage security once the discharge has been properly completed.

14. Are commercial mortgages subject to the same protections as residential mortgages?

Not necessarily. Commercial mortgages are often negotiated between business parties and may fall outside the FCA’s regulated residential mortgage regime. Nevertheless, they remain subject to property law, contractual requirements, registration rules, and relevant insolvency and enforcement legislation.

Principal Legislation

• Law of Property Act 1925, particularly sections 52, 85, 87, 91, 101, and 103.
• Land Registration Act 2002, particularly sections 27 and 48.
• Administration of Justice Act 1970, particularly section 36.
• Administration of Justice Act 1973, particularly section 8.
• Consumer Credit Act 1974, particularly sections 140A–140C.
• Limitation Act 1980.
• Companies Act 2006, particularly the provisions governing registration of company charges.
• Civil Procedure Rules 1998, Part 55.
• Pre-Action Protocol for Possession Claims based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property.
• FCA Handbook, Mortgage Conduct of Business.

Principal Cases

• Cuckmere Brick Co Ltd v Mutual Finance Ltd [1971] Ch 949.
• Cheltenham & Gloucester Building Society v Norgan [1996] 1 WLR 343.
• Four-Maids Ltd v Dudley Marshall (Properties) Ltd [1957] Ch 317.
• Palk v Mortgage Services Funding plc [1993] Ch 330.
• Ropaigealach v Barclays Bank plc [2000] QB 263.