The recent High Court decision in Mentmore Golf Investments Ltd v Gaymer [2025] EWHC 2604 (Ch) offers important clarification on the timing of applications for relief from forfeiture and the boundaries of legitimate litigation conduct.
The case explores applications for relief from forfeiture in the contexts of the execution of possession orders, mortgagee rights, and the doctrine of abuse of process, with implications for landlords, tenants, and secured lenders.
Background
Mentmore Golf Investments Ltd (MGIL), acting as mortgagee, sought relief from the forfeiture of a lease over a golf course owned by Mr Gaymer. The lease had been forfeited due to the tenant’s failure to carry out repairs. The tenant, Mentmore Greenland Ltd (MGL), was closely associated with MGIL, with both entities forming part of the same trust arrangement.
MGIL’s application for relief from forfeiture was submitted after a possession order had been granted against MGL but before it was executed. However, by the time the application came before the court, the possession order had been executed and possession re-taken.
At first instance, the judge concluded that, due to the execution of the possession order, the landlord was no longer actively proceeding with forfeiture “by action or otherwise” as required for relief to be granted under sections 146(2) and 146(4) of the Law of Property Act 1925. In such a scenario, the court held that a tenant or mortgagee must first seek to have the possession order set aside before applying for relief under section 146.
The judge also found the application to be an abuse of process on the basis that the application had not been made by MGIL within the landlord’s possession proceedings, despite them having been served with notice of the same well in advance of the possession order being made. As such, the judge struck out the application and granted summary judgment in favour of Mr Gaymer.
The Decision
On appeal to the High Court, Sir Anthony Mann partially overturned the first instance decision.
He ruled that MGIL’s application had been made in time, as the relevant moment for assessing whether the landlord was “proceeding” is when the application is filed, not when it is heard. The point was made that the “issue of proceedings is the point of time at which the right to apply falls to be tested, and the mortgagee applied in time.” This interpretation aligns with precedent, including Lock v Pearce [1892] and Billson v Residential Apartments Ltd [1992], which clarify that a landlord is considered to be “proceeding” with the forfeiture until the possession order is executed.
The court also confirmed that sections 146(2) and (4) of the Law of Property Act 1925 do not require a mortgagee to apply for relief within the landlord’s possession proceedings. Separate proceedings are permissible and do not inherently undermine the legitimacy of the application.
However, despite finding that the application was procedurally valid, the court upheld the strike-out on different grounds. It concluded that MGIL’s “very late application for relief” was an “abuse of the process and should be struck out”. This highlighted the “pattern of abusive litigation”. The evidence revealed a coordinated litigation strategy involving MGIL and MGL, designed to “prolong the process” rather than genuinely protect mortgagee interests. The court found that MGIL had acted as a “reserve claimant” stepping in only after the tenant’s position had become untenable, and that this tactic unfairly prolonged the litigation to the detriment of the landlord.
Key Takeaways
- Timing matters: Relief from forfeiture applications must be assessed as of the date they are filed, as opposed to the date they are heard. Filing a relief application before execution of a possession order thus satisfies the timing requirement under section 146 of the LPA 1925.
- Separate proceedings are permissible: Mortgagees are not obliged to seek relief within the landlord’s possession proceedings. Independent claims for relief are procedurally acceptable.
- Abuse of process is a real risk: Even a timely and procedurally sound application can be struck out if it is part of a broader strategy to manipulate the litigation process. Courts will scrutinise the conduct and relationships of parties to determine whether a claim is genuine or oppressive.
- Strategic litigation must be justified: Entities operating within shared structures must demonstrate independent and bona fide motives when seeking relief. Attempts to delay enforcement through coordinated claims may backfire.
This case serves to provide caution for mortgagees and associated entities navigating forfeiture disputes. While the law provides avenues for relief, courts remain vigilant against tactics that undermine the integrity of the judicial process. However, the case also provides much-needed clarity that relief from forfeiture applications will be considered made in time if they are filed prior to the execution of the relevant possession order.
Judgment: Mentmore Golf Investments Ltd v Gaymer [2025] EWHC 2604 (Ch)
If you would like any more information then please contact Mark Foxcroft or Jatinder Bhamber.