First National Bank plc v Syed [1991] 2 All ER 250
Borrower in severe mortgage debt unable to gain a suspension of possession order
Facts
The defendants fell into mortgage arrears in relation to their family home. The plaintiffs obtained an order for possession. The defendants appealed against an order made by a Registrar whom had refused a stay or suspension of the order for possession.
Issues
Under section 36 of the Administration of Justice Act 1970, the Court has the power to stay or suspend the execution of an order for possession for such period as is reasonable to allow the borrower to pay off arrears within a reasonable time whilst also paying current instalments. Upon granting leave to appeal, Butler-Sloss L.J. expressed disquiet that an order for possession be suspended in this case on a condition of payment on terms which were manifestly beyond the means of the Defendants. Upon appeal, the Defendants raised the further issue of the agreement between the parties being a regulated agreement under the Consumer Credit Act 1974.
Decision/Outcome
Section 129 of the 1974 Act provides for a potential time order remedy. Under this section, the Court is able to order payment by instalments, where the Court considers it just to do so. In the Court of Appeal, Lord Justice Dillon held that, considering the long history of default by the defendants’ and the absence of any evidence which suggested an improvement in the defendants’ finances, it was not just to make such an order. Furthermore, there was no prospect of the defendants making any repayment of the principal without a sale of the property. Accordingly, the appeal was dismissed.
266 words
Updated 19 March 2026
This case summary remains broadly accurate. First National Bank plc v Syed [1991] 2 All ER 250 is correctly cited and the legal principles described reflect the Court of Appeal’s decision. The summary accurately identifies the interplay between section 36 of the Administration of Justice Act 1970 and section 129 of the Consumer Credit Act 1974 as applied in that case. Readers should be aware of subsequent developments in this area: the Consumer Credit Act 1974 has been significantly amended, most notably by the Consumer Credit Act 2006 and by various Financial Conduct Authority regulatory changes, and the FCA’s mortgage conduct of business rules (MCOB) now impose detailed pre-action requirements on lenders. The pre-action protocol for possession claims based on mortgage or home purchase plan arrears in possession claims, updated by the Civil Procedure Rules, also now governs how lenders must behave before commencing possession proceedings. These later developments do not alter the correctness of the court’s reasoning in Syed on the specific facts, but the broader regulatory landscape for mortgage possession claims has changed materially since 1991. Students should treat this case as illustrating the principles under section 36 of the 1970 Act and section 129 of the 1974 Act rather than as a complete picture of the current framework governing mortgage arrears and possession.
