The Mortgage Arrears Pre-Action Protocol: An Opportunity Lost

Abstract

In February 2008, the Civil Justice Council circulated for consultation a mortgage arrears pre-action protocol that proposed some of the most radical and significant reforms of the repossession process for a century. Hinting at a return to the equitable tradition, the draft protocol required a minimum level of equitable dealing within the mortgage relationship coupled with the restriction and, at times, exclusion of the lender's inherent right to possession. The version which emerged following the period of consultation, however, bore little if any resemblance to its predecessor. The Pre-Action Protocol for Possession Claims Based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property attempts no alteration of the parties' existing rights and obligations and seeks merely to encourage rather than compel lenders to view repossession as a last resort. To this extent, therefore, it represents an opportunity lost to afford borrowers greater protection within the repossession process.