A little birdie told me that, although the substantive appeal against relief from forfeiture of a golf course was unsuccessful, the High Court in Mentmore Golf Investments Ltd v Gaymer [2025] EWHC 2604 confirmed that such an application could be validly made after a possession order was made, and in separate proceedings. It was also capable of being an abuse of process.

Tee Off: The Case at First Instance

The parties teed off in the County Court at Luton before HHJ Murch. Mentmore Golf Investments Ltd, the mortgagee of a golf course on land subject to a lease which was forfeited to Mr Gaymer, the freeholder, brought a claim for relief from forfeiture. The lessee whose interest was forfeited, Mentmore Greenland Ltd, was described as part of the same “overall structure” as various trusts and companies, including the mortgagee.

Forfeiture proceedings had been issued against the lessee on 23 May 2022 and a copy sent to the mortgagee on 2 August 2022. A possession order was made on 13 December 2023. Claims for relief from forfeiture were made by the lessee on 14 December 2023, and by the mortgagee on 22 December 2023 (both signed by the same Counsel and verified by the same Solicitor). The possession order was executed by High Court Enforcement Officers on 2 February 2024. Both applications for relief were heard together and struck out of bounds and/or summary judgment given, but only the mortgagee subsequently appealed.

The Court held, with respect to the mortgagee’s claim:

1. A mortgagee could not apply for relief for forfeiture after a possession order was made against the tenant as the landlord was no longer “proceeding” within the meaning of section 146 of the Law of Property Act 1925 (“the Act”). The possession order therefore needed to be set aside before the mortgagee could proceed; and
2. Even if the claim were sustainable in principle, it was an abuse of process due to the mortgagee’s decision not to intervene in the forfeiture proceedings and its close relationship with the lessee.

Second Hole: The Appeal

The mortgagee appealed on the basis that both of the above points were incorrect and, if point 1 was correct, the Judge should have considered that the matter could have been remedied by amendment of the case to seek that the possession order be set aside.

The High Court held that the mortgagee’s claim was valid as the landlord was still “proceeding” within the meaning of section 146 of the Act at the relevant time, namely when the claim was issued. There was also no procedural requirement for the application to be made within the landlord’s existing proceedings.

It was far from a hole-in-one for the mortgagee, however, as the substantive application was held to be an abuse of process. The Court did not accept the “bald” explanation that the mortgagee did not consider it necessary to intervene until the possession order had been made because the lessee was defending those proceedings. Rather than behaving with “perfect propriety”, the mortgagee was found to have made the claim as part of a scheme to string out the litigation. The appeal was therefore dismissed.

Attending the Flag: Advice for Mortgagees

Sir Anthony Mann’s comments went a fairway to provide useful guidance for mortgagees considering at what point to make an application for relief from forfeiture. He acknowledged that there might be a driving range of legitimate commercial reasons to delay making an application until genuinely disputed proceedings between the landlord and tenant concluded, but there was no evidence as to what their thinking was as they continued to delay while the dispute continued. Mortgagees in such circumstances may be wise to keep the decision under review and record the reasons for delay.