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Procedure

Rent arrears protocol

Before starting a claim for possession based on rent arrears social landlord must follow the steps in the Pre-action protocol for possession claims based on rent arrears. The protocol does not apply to long leases or where there is no security of tenure. It is intended to reflect the guidance on good practice given to social landlords in the collection of rent arrears.


Procedure and Forms

General procedure

The general procedure for possession claims is set out in Part 55 of the Civil Procedure Rules. The forms to be used can be found on the HM Courts and Tribunal Service website housing forms page. Type in "possession" into the box called "Form/leaflet title".

Possession claims online

Possession Claims Online is as its name implies an on-line method of applying for possession. There are on-line claim forms, defences and application forms. It is also possible pay the court fees on-line. CPR, 55.10A and PD 55B apply to this procedure. The service can be accessed via https://www.possessionclaim.gov.uk/pcol/.


Service of proceedings

Akram v Adam
[2004] EWCA Civ 1601

Facts

The possession claim was served by first-class post to T at his regular address in accordance with CPR, r6.5(6) (service where defendant has no solicitor). The claim did not come to T's attention and L obtained judgment without T's knowledge. When T found out about the order he applied to set it aside.

The district judge found that it was well known that T had been having difficulties with his post, that at the time of service T was at his sisters address and that L knew of his absence.

Held

The service, nonetheless, was in accordance with the rules and was good.

T could only have the order for possession set aside as a matter of discretion under CPR 13.3. As on the facts he had no real prospect of defending the claim L had offered suitable alternative accommodation - the order would not be set aside. These rules do not breach Art 6 of the ECHR. Brooke LJ at para 34:
    "In the present case on the findings of the district judge the judgment was regularly entered, because it was posted to the defendant at his usual residence and the district judge made no finding that the claim form was returned undelivered. The situation might have been different if she had found that the claimant deliberately suppressed the claim form when it arrived by post in his house. It follows that on the ordinary interpretation of the relevant provisions of the Civil Procedure Rules, supported by the judgment of this court in Smith v Hughes (see paras 23-24 above), this judgment could only be set aside as a matter of discretion pursuant to CPR 13.3, and it would not be possible to fault the way in which Judge Yelton exercised his discretion. The suggested defence had no merit at all."

Second claim - abuse of process?

Spicer v Tuli
[2012] EWCA Civ 845

Summary

The court refused to strike out a second set of proceedings for possession when the first set had been dismissed by consent. It had been made clear that the claim would be pursued at the time of the initial dismissal. The fact that the word “dismissal” was used by mistake instead of “withdrawn” or “miscontinued” did not alter the merits of the situation, ie that the second claim should be allowed to proceed.

Facts

R were appointed receivers of a flat and wished to sell it. They discovered that D was in occupation and brought trespasser proceedings against them (CPR 55.4, using the form required by CPR 55.4 (i.e. N121) in order to obtain vacant possession.

D claimed that they had been in possession pursuant to a tenancy agreement and filed a Defence accordingly and the matter was listed for trial. The day before the hearing D finally produced the documents relied upon to establish a tenancy. R suggested that the proceedings should be withdrawn as they needed more time to consider the documents because they did not consider that they were genuine. A signed consent order was then delivered to the court providing for the proceedings to be dismissed.

Subsequently fresh proceedings were commenced for possession claiming amongst other matters, that any tenancy was fraudulent. D sought to strike out this fresh claim on the basis of estoppel or abuse; the previous action had been dismissed (and not discontinued) and therefore there was a cause of action estoppel, alternatively it was an abuse of process. Neither argument succeeded before either the District or Circuit Judge on appeal. The case came before the Court of Appeal.

Decision

Appeal dismissed.

The Court of Appeal considered first the claim of abuse of process. After reviewing Johnson v Gore Wood & Co [2002] 2 AC 1, and noting that the basis of an argument for abuse was founded on what the parties had understood they had compromised in proceedings, Lewison LJ said:
    “The conduct of the parties in bringing an end to the first action is part of the broad merits-based approach to the question of abuse of process that Lord Bingham, with the agreement of the whole House, had commended. It was quite clear in the present case that the receivers said they would pursue their claim against Ms Tuli; that was the basis of the suggestion that the action be withdrawn. The accident that the draft consent order substituted “dismissed” for “withdrawn”, instead of “discontinued” cannot in my judgment alter the broad merits-based approach. It would, in my judgment, be unconscionable to allow Ms Tuli to take advantage of what was plainly a technical error. If, therefore, there is no cause of action estoppel, I would hold that there is no abuse of process.”
As to cause of action estoppel, the first consideration was whether it applied to a consent order and if so, how. It was contended by D that a consent order operated the same way as a judgment on the merits and therefore gave rise to a cause of action estoppel. Lewison LJ disagreed with this and said:
    “21 In my judgment, Dyson LJ's approach [in Ako v. Rothschild Asset Management Limited [2002] EWCA Civ 236] gains added force in the light of Article 6 of the European Convention on Human Rights . That article, as is well known, entitles a person to a fair and public hearing in determining his civil rights. In the present case, the action was dismissed without a hearing. It is of course possible for a litigant to waive his rights under Article 6 . Entry into a contract containing an arbitration clause is one example. But where it is alleged that a person has waived his Article 6 rights as a result of a friendly settlement, a thorough analysis is needed in order to determine whether a friendly settlement has indeed been reached, including an investigation into the surrounding circumstances. An investigation into the surrounding circumstances in this case makes it clear that there was no friendly settlement; rather, the receivers made it clear that they would pursue their claim. In my judgment, it is clear from the surrounding circumstances in this case that the receivers did not intend to abandon their claim, and it is equally clear that Ms Tuli, through her solicitors, knew that. This case is, in my judgment, indistinguishable from Ako . It would, in my judgment, be unjust not to allow the receivers to proceed with their claim, even if the cause of action in the second action is the same as in the first."

Proceeds of Crime Act

The Proceeds of Crime Act 2002 does not confer on the court the power to make a possession order. What it does do is enable the vesting of property in the trustee who can in turn apply to the court for possession following CPR Part 55. (Olden v Serious Organised Crime Agency [2010] EWCA Civ 143, See Sir Scott Baker at paras 70 to 80).

Note also B v N where the court held that a receiver appointed under the Criminal Justice Act 1988 to enforce a confiscation order could only obtain possession against assured shorthold tenants by following the procedure set down by the Housing Act 1988. The power provided in the 1988 Act did not override the tenant’s statutory or contractual protection.


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