Banking (Special Provisions) Bill

Amendment No. 5 covers a very wide range of possibilities in the area of the bank’s enterprise. I suspect, however, that the motivation behind the amendment was probably benign and proper—to try to safeguard the position of mortgagors who find themselves in difficulties with repayments under their mortgages. The amendment is really an appeal for guidance in those narrow and perilous waters that divide Scylla and Charybdis; I cannot now remember which was the rock and which the whirlpool, but there was a rock—albeit a southern rock. Therefore, it is a difficult situation if a mortgagee finds himself or herself having on the one hand to do that which is prudent and, on the other, that which is humane with regard to a debtor. I would make an obvious point without apology. The ultimate determination does not, of course, lie with the bank or mortgagee itself, but with the courts. The question of whether one triggers the mechanism to commence an action in the courts for sale or for foreclosure is a decision for the mortgagee, but the ultimate decision—under the Administration of Justice Act 1970—lies with the courts. In practice, it lies with a district judge, who would have to decide whether the debtor has a reasonable prospect, within the total term of the mortgage, of making that repayment.