English Chancery Division rules pre‑execution relief 'in time' and abusive claim struck out

In Mentmore Golf Investments Ltd v Gaymer [2025], the High Court clarified when a relief from forfeiture application is “in time” and delivered a firm warning on abusive litigation. On appeal, the mortgagee won on the timing point but lost on abuse, so the appeal was ultimately dismissed.

The court ruled that applications made after a possession order is granted but before it is executed  fall within the relief jurisdiction under section 146 of the Law of Property Act 1925 (LPA 1925). It also confirmed that mortgagees may issue relief claims in separate proceedings. Section 146 is the statutory route by which a tenant or mortgagee can ask the court to undo forfeiture, usually on strict conditions such as paying costs and remedying breaches.

The forfeiture

The freehold owner of a golf course, leased to Mentmore Golf Course, sought to forfeit the lease for serious shortcomings in the lessee’s repairing obligations. The lessee’s defence and counterclaim for relief from forfeiture were struck out after repeated non‑compliance with unless orders to pay substantial costs and other sums, and a possession order followed. A subsequent relief application made by the lessee (despite the strike-out of its counterclaim claiming the same things) was also struck out.

After the possession order was made, the lessee’s lender, Mentmore Golf Investments (MGI), issued its own relief application as mortgagee. That application was made post order but pre‑execution. Execution followed, and the freeholder sought strike out or summary judgment. MGI was closely associated with the lessee through a complex structure controlled by a single individual, the real principal behind both entities.

The first instance judge struck out MGI’s claim and granted summary judgment, holding that once the order had been executed MGI would first need to set it aside because the forfeiture was no longer “proceeding.” The judge also found an abuse of process. On appeal, the Chancery Division accepted MGI’s timing argument but upheld strike out on abuse.

Timing and separate proceedings

The statutory hinge was when a landlord is “proceeding…to enforce” forfeiture under section 146 LPA 1925. The court drew a clear line: up to the moment of execution, the landlord is proceeding; however, once execution occurs, it is not. Jurisdiction is engaged at the date of issue of the relief claim, so a claim issued before execution is in time even if execution occurs before the hearing. That reading flows from the natural language of section 146(2). The court also rejected any requirement to apply within the landlord’s possession proceedings. Section 146 permits applications either within the landlord’s possession proceedings or in separate proceedings brought by the tenant or mortgagee, therefore, applying in the landlord’s case may be convenient, but it is not mandatory (see s.146(2) and (4) LPA 1925). Standalone proceedings are therefore permissible.

Abuse found

The appeal failed because MGI’s claim was an abuse of process. The judge found a pattern of tactics orchestrated by a single controlling figure behind tenant and mortgagee, with MGI acting as a reserve claimant who stayed out of the main case and only stepped in after the tenant’s failures. An arm’s length lender genuinely protecting its security would have intervened earlier or secured agreement to wait. 

Applying the merits-based approach to abuse, the court emphasised that identity of parties and final determinations are not prerequisites. The question is whether the later proceedings amount to unjust harassment or misuse of process on the facts. Put simply, the judge used a common-sense test for “abuse of process.” It does not matter that the new case is brought by a different company or that the earlier case did not end with a full trial judgment. The real question is whether, looking at the overall picture, the later case is just a way to keep the dispute going unfairly or to pressure the other side. Abusive or duplicative tactics risk strike out and adverse costs, and the court can deploy case management powers to control such proceedings.

Why it matters

A claim issued after a possession order is made but, before it is carried out, is in time, and it may be brought in separate proceedings. In practical terms, if the possession order has already been carried out before the relief claim is issued, the applicant will usually need to ask the court to set that order aside to reopen the court’s ability to consider relief. By contrast, if the claim is issued before the order is carried out, the court can hear it. However if possession is then taken before the hearing, that will weigh heavily in the court’s discretion and may require undoing possession to make any relief effective. For landlords, promptly progressing to execution narrows the window for relief, and early identification and notification of any known mortgagees remains sensible to reduce the risk of later challenge.

Osborne Clarke comment

This decision clarifies that applications for relief made after a possession order is made but before it is executed are in time, and that a mortgagee may issue separate proceedings to seek relief.

By contrast, relief sought after execution will require an application to set aside the order and to undo possession.

A genuine relief claim by an independent lender remains viable, but the court will scrutinise party relationships and the timing of any application. Where a coordinated approach between related entities is suggested, the court will not entertain such tactics. Relief applications deployed to prolong litigation as part of a coordinated delay will likely be struck out as an abuse of process.

Mortgagees should carefully consider their position in possession proceedings brought against lessees and seek to apply in a timely manner. Failure to do so may invite criticism and refusal of relief.