## Facts

- Bristol & West Building Society provided a mortgage loan to Mrs. Ellis, secured against her home.
- Mrs. Ellis defaulted on her mortgage payments due to financial difficulties.
- The lender initiated possession proceedings following the default.
- Mrs. Ellis argued at trial that her financial hardship should prevent the lender from obtaining possession, as she lacked a realistic prospect of repaying the arrears.
- The trial court granted possession; Mrs. Ellis appealed, contending the court should use its discretion to delay or refuse possession.
- The Court of Appeal dismissed Mrs. Ellis’s appeal and upheld the possession order.

## Issues

1. Whether financial hardship alone is a sufficient ground to refuse a lender’s claim for possession when a borrower defaults on mortgage payments.
2. What is the extent of the court's discretion to delay possession under the Administration of Justice Acts 1970 and 1973.
3. Whether the interests of contractual certainty outweigh considerations of borrower hardship in possession proceedings.

## Decision

- The Court of Appeal held that financial hardship on the part of the borrower is not, by itself, enough to prevent a lender from obtaining possession after default.
- The court reaffirmed that statutory discretion to delay possession is available only where the borrower can show a reasonable prospect of repaying arrears within a defined period.
- Since Mrs. Ellis lacked the ability to repay the arrears within a reasonable period, the possession order was upheld.
- The court emphasized the primacy of the lender’s contractual right to possession, subject only to the limited statutory discretion provided by legislation.

## Legal Principles

- Lenders have a prima facie contractual and statutory right to possession upon borrower default.
- The court’s discretion to delay or suspend possession orders is limited by statute and only applies if the borrower can realistically repay arrears within a reasonable timeframe.
- Financial hardship, without more, does not override the lender’s right to possession.
- The decision reinforces the need for contractual certainty in mortgage transactions.
- Procedural fairness in possession proceedings is mandated, ensuring both parties have an opportunity to be heard.

## Conclusion

The Court of Appeal confirmed that financial hardship alone does not preclude a lender from obtaining possession of a mortgaged property upon default, and statutory discretion to delay possession is tightly constrained. Contractual rights of lenders remain primary, with limited scope for equitable relief except where repayment of arrears within a reasonable period is demonstrated.

Bristol & West Building Society v Ellis (1996) 73 P&CR 158