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Setting aside

This page has information relating to the setting aside of possession orders and warrants for possession.

Possession orders

Good reason for not attending trial

Estate Acquisition and Development Ltd v Wiltshire

[2006] EWCA Civ 533

Facts

An order forfeiting a lease of residential premises for non-payment of service charges was made. The house was an unencumbered leasehold property worth more than £140,000. The debt was £849.21. The defendants were not living at the property and so were unaware of the proceedings, that were properly served. When they became aware of the order they applied to have it set aside.

The issue

In order to be successful they needed to satisfy the three requirements set out in CPR r.39.3(5):
    "(5) Where an application is made under paragraph (2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant ...
      (a) acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him;
      (b) had a good reason for not attending the trial; and
      (c) has a reasonable prospect of success at the trial."
The issue in the case was whether or not the defendants had a "good reason" for not attending the trial. Counsel for the landlord sought to argue that the defendants should have had a system in place to make sure that any litigation came to their attention. It was no good simply stating that they did not know of the trial date.

Held

This argument was rejected and the order was set aside. Dyson LJ at para 24:
    "A person is under no obligation to make himself amenable to potential claims of which he has no notice. It must follow that, if he fails to attend a hearing in proceedings of which he is unaware, he has a good reason for failing to attend."

Setting aside order made on first date for hearing of the claim

Forcelux v Binnie
[2009] EWCA Civ 854

Summary

The hearing of a claim for possession made on the first date is not a “trial”. Thus, on an application to set aside the order CPR 3.1(2) applies – giving the court a wider discretion than it would have under CPR 39.3 (had it been a trial).

Facts

A claim for possession was made in respect of long lease of a flat with 94 years left based on ground rent and service charge arrears. The claim was served at the flat. D failed to attend the first hearing, because he was not living there at the time. An order for possession was made resulting in forfeiture of the lease. D subsequently became aware of the proceedings and applied to set aside, although he did not do so promptly. C argued that the hearing was a trial and that the strict test in CPR 39.3 therefore (i.e. the party applying to set aside must have (a) acted promptly (b) have good reason for not attending trial and (c) have a reasonable prospect of success at trial).

Held:

The hearing of a possession claim on the first date is not a trial for the purposes of CPR 39.3. Accordingly, in deciding whether or not to set aside a possession order made on that date the court should determine the matter under CPR 3.1(2) (m) and not under CPR 39.2(5). Further, the checklist set out in CPR 3.9 provided a helpful approach to determining how to exercise the discretion to set aside the order.

The first hearing of a possession claim was described as:
    “a summary procedure in the sense of a procedure carried out rapidly with the omission of most of the steps which in an ordinary case would lead to trial. … Moreover, Rules 55.8(1) and (2) have something in common with Part 24 (summary judgment). A claimant applying for summary judgment under Part 24 will produce evidence which, if it is not disputed, is sufficient to establish his case; the defendant can produce his own evidence in response but, unless the court considers that the defendant has a reasonable prospect of defending the claim, the claimant will ordinarily obtain his judgment. Similarly a claimant seeking possession under Part 55 will produce evidence at the first hearing which, if it is not disputed, should entitle him to an order for possession; the defendant can produce his own evidence in response which, if it is sufficient to show that he has a case which is genuinely disputed on grounds which appear to be substantial, will result in allocation to a track and case management directions for dealing with the case. In neither case does the court try-out the issues on contested evidence with cross-examination to test each side’s case. Indeed, a defendant may simply have no hint of a defence at all so that the court can deal with the matter in a way which can perfectly be property be described as summary and as not involving at trial.” [per Warren J paras 36-7]
On the matter of the court's discretion the CA had regard to the various factors in the checklist in CPR 3.9. However, the fact that the landlord would receive a windfall if the possession order was not set aside clearly carried great weight. Warren J at para 67:
    "In my judgment, this is a case for the exercise of the discretion in favour of Mr Binnie. Although, as I assume for the purposes of this appeal, that he had not acted promptly, his delay was not so long as to disentitle him from relief. The main factor in favour of granting relief is very strong, namely that Mr Binnie has a compelling case for relief from forfeiture and it is only because possession has been taken pursuant to the possession order that it can be said that he has lost his right to relief. The consequences of refusing to set aside the possession order would be that Mr Binnie would lose not a periodic tenancy at a rack rent, but a long lease at a ground rent. It would be no injustice to Forcelux to be deprived of the windfall that would otherwise accrue to it provided it received what it is entitled to under the Lease and its costs at least up to the end of the set-aside hearing before DJ Hudson. I call it a windfall because, although Forcelux has a right under the lease to forfeit it, the law regards that right as security for the observance of the covenants contained in it. Mr Binnie's default was a failure to pay a comparatively modest sum of money. Forcelux has been offered all that is necessary to compensate it for the breach of covenant which gave rise to the forfeiture."



Application to set aside or appeal?

Williams v Hinton
[2011] EWCA Civ 1123

Summary

Where a party is dissatisfied with judgment at a hearing at which they failed to attend and their main cause for complaint arises out of the failure to adjourn the matter, the proper route is an application to set the judgment aside under CPR 39.3(3) rather than appeal.

Facts

L sought possession from T, T counterclaimed for disrepair. There had been a number of abortive hearings and L failed to attend the final hearing. The Judge after considering the statements filed by both parties gave judgment against L.

L appealed on the basis that:
  • The hearing should not have gone ahead in their absence as it was not clear that they were aware of the hearing and

  • The Judge failed properly to consider the evidence before him.
Appeal

The Court of Appeal dismissed their appeal but took a preliminary point on the question of whether there should have been an appeal or an application to set aside under CPR 39.3. reference was made to Bank of Scotland v Pereira [2011] EWCA Civ 241 and the guidance given by Lord Neuberger MR. Considering those points, Gross LJ, just permitted the appeal to continue:
    “21. In my judgment, the Appellants in the present case ought to have applied under CPR 39.3, rather than pursuing an appeal. This was indeed a paradigm case for a CPR 39.3.application. The principal ground of appeal (Ground I) was entirely focused on the Judge proceeding in the Appellants’ absence; Ground II, at least in part, fell naturally under CPR 39.3. That Ground III was an independent ground does not mean, as explained by both Lord Neuberger MR and Lloyd LJ (supra), that the CPR 39.3 route should not have been pursued – a fortiori given the intrinsic weakness of Ground III.

    22. For my part, however, I would nonetheless be minded to entertain the appeal on the merits. My principal reason for reaching this conclusion is simply that the Appellants opted to pursue an appeal – rather than a CPR 39.3 application – prior to Pereira being decided in this Court and the clarification of the relationship between appeals and CPR 39.3 applications. In the circumstances, I do not think that this procedural error should deprive the Appellants of the opportunity of being heard in this Court
    .
    23. Additionally, it is fair to the Appellants to say that they are not seeking any
    “backdoor” advantages by appealing instead of seeking to have the Judgment set aside; cf., Pereira, at [117]. There is, in particular, no application before us to adduce fresh evidence on the appeal”
However there was a word of warning for the future:
    "24. Accordingly, I am of the view that the appeal should be entertained on its merits and I propose to proceed to do so. I would not, however, wish to leave this preliminary question without the following observations:

    i) It does not at all follow that in subsequent cases the decision (to entertain an appeal when the correct course was to apply by way of CPR 39.3) would be the same (as Lord Neuberger MR observed in Pereira, at [37], in the passage already cited). I take this opportunity of underlining the importance of Pereira in providing guidance for a litigant unhappy with a decision reached in his/her absence.

    ii) I am firmly of the view that the mere fact that a litigant is a litigant in person
    (“LIP”) would not, at least ordinarily, constitute an “unusual fact” (within
    Lord Neuberger MR’s observations in Pereira at [37]), warranting this Court entertaining an appeal when the correct course was to proceed by way of CPR 39.3. It is one thing to make even generous allowances, as the Court
    invariably does, for LIPs; but there should not be one rule for LIPs and a
    different rule for those legally represented.


Delay in applying to set aside order - abuse of process

Abbey National plc v Miller
[2007] EWCA Civ 138

Facts

This was a mortgage possession claim:
  • Year 1: Abbey National (Abbey) brought standard arrears-based mortgage possession proceedings and obtained a suspended order for possession.
  • Year 11: Following further default, Abbey renewed its application for possession. The borrower did not dispute the validity of the suspended order, but challenged the account. An account was ordered
  • Year 15: Following further proceedings, the borrower appealed, disputing the validity of the original suspended order on the ground that it had not been sealed and had therefore not been perfected.
The judge dismissed the appeal. The borrower appealed again.

Held

There was an issue of fact requiring evidence as to whether or not the original order had been perfected. However, even if there was evidence that the order had not been validly made, it was far too late to challenge it. The parties had proceeded on the basis that the order was valid and it would be an abuse of process to take the point that the order was not valid.


Warrants - oppression etc.

The basic principles

The principles to be applied when setting aside a warrant after execution are that this will only occur where (1) the order on which it is issued is itself set aside, (2) the warrant has been obtained by fraud, or (3) there has been an abuse of process or oppression in its execution (Jephson Homes v Moisejevs (2000)).

Principles re-affirmed

The CA re-affirmed these principles in Circle 33 Housing Trust Ltd v Ellis [2005] EWCA Civ 1233.

Facts

This case had a chequered history. The possession order was made by the District Judge when the tenant did not turn up at court. The warrant was executed and the defendant only then applied to the court, to set aside the warrant. The application came before the county court judge. This was a housing benefit case and at the date of that hearing there were effectively no arrears and it was reasonably plain that future Housing Benefit would have been paid if it were not for the fact that eviction had taken place. However, the county court judge took the view that there was no fraud or oppression and that the failure to get to grips with the housing benefit problem was that of the defendant. He therefore refused the application.

First appeal

There was then an appeal to a High Court judge who took a completely different view. He considered that the fault lay with the local authoritys inefficient and irrational behaviour in relation to the housing benefit and that the landlord should have contacted the authority before evicting. He thought it was one of those rare cases where execution of the warrant was oppressive.

Second appeal - decision

There was then a second appeal to the CA by the landlord. Second appeals are highly unusual but the CA gave permission for the appeal and granted it because the High Court judge was plainly wrong. The CA re-affirmed and applied the principle stated above, ie. that a warrant will only be set aside after execution if the order itself is set aside, there is fraud, abuse of process or oppression. Sympathy with the tenant is not enough.

Citation

Chadwick LJ continued at paragraph 26 and 27 of the judgment:
    "25 In this important and sensitive field of social housing, Parliament has prescribed a regime which recognises that a tenant should not be evicted from his home if some alternatiove solution reasonable in the interests of both the landlord and the tenant can be found. It has provided the opportunity to seek such an alternative solution through the courts right up to the point of eviction. The courts role does not cease when it makes a possession order. The jurisdiction to stay or suspend the order, or to stay or suspend execution of the warrant, is exercisable at any time before execution of the order. The provisions of section 9(2) of the Housing Act 1988 mirror those .. in s85(2) of the Housing Act 1985.

    26 But Parliament has recognised that there must come a time when the landlord is able to relet the property in the knowledge that a former tenant can no longer return to the court with proposals for a solution which enables him to resume occupation. The scheme in the Housing Acts, provides that that time comes when eviction has taken place. Thereafter the statutory scheme provides that the landlord can relet in the knowledge that the scheme for protecting the former tenant has run its course."
Misconduct by the court

Rendham Holdings Ltd v Patel
[2002] All ER(D) 132; Legal Action, December 2002, p21.

T applied for a stay of execution of a possession order pending appeal. Due to an error in the court office the application was not put before a judge. A warrant for possession was issued and executed. T successfully applied to have the warrant set aside on the basis of oppression and obtained relief from forfeiture. Ls appeal to the High Court was unsuccessful. T was entitled to believe that a warrant would not be issued and enforced before considering the application for the stay.

Mortgage case - allegation that sale will be at undervalue - not oppression

Da Rocha-Afodu v Mortgage Express
[2007] EWHC 297 (QB)

Summary

What happens if a warrant for possession has been enforced, the property is on the market for sale, but the borrower wants to go back in?

Facts

Following protracted proceedings, the lender obtained an order for possession and issued a warrant due for execution on 29 September 2006. On the 28 September 2006 the borrowers applied for a suspension. The court refused the application. The warrant was executed and possession was taken.

On 28 December 2006, the borrowers filed an Appellant's Notice, out of time, seeking permission to appeal the refusal. They sought to challenge the judge's findings of fact and his exercise of discretion. They also applied for a stay of execution and an order that they be allowed back into possession in the meantime. Apart from hardship, they also cited issues about the disposal of personal property and the prospect of a sale at an undervalue.

On 16 January 2007 the court granted a stay of execution. On 26 January 2006 the lender applied to lift the stay.

The hearing

At the substantive hearing on 14 February 2007, the court had to determine the borrowers' application to be allowed back into the property and the lender's application to lift the stay.

The principal ground relied on by the lender was that the court had no jurisdiction to grant a stay, save in exceptional circumstances which did not apply, in a case where an eviction had already taken place (Cheltenham & Gloucester Building Society v Obi (1996) 28 HLR 22).

The borrowers submitted that the court had jurisdiction on the basis that they had a reasonable prospect of success and that without a stay, they would be ruined (Linotype-Hell Finance Ltd v Baker [1993] 1 WLR 321).

Held

Cheltenham & Gloucester v Obi applied. The court could not set aside or suspend a warrant for possession after execution unless either (1) the possession order on which it was issued was itself set aside, (2) the warrant had been obtained by fraud, or (3) there had been an abuse of process or oppression in its execution.

On the facts, none of the exceptions applied. Marketing the property at an alleged undervalue was not oppression. Nor was there any abuse of process in respect of the judge's earlier findings of fact:
    "The warrant has been executed and the court has no jurisdiction to grant a stay in the circumstances of this case. Still less does the court have any jurisdiction to order the [lender] to permit the [borrowers] to re-enter the property by way of interim measure pending the hearing of an application for permission to appeal out of time".
Stay lifted; borrowers' application refused.

Abuse of process - false representation that no application pending

Ahmed v. Mahmood
[2013] EWHC 3176 (QB)

Summary

A writ of possession was set aside after the tenant was evicted due to a false representation by the landlord that no application was pending.

Facts

L claimed possession and T defended and claimed damages for unlawful eviction. At the start of a three day trial, T applied for an adjournment, which was granted on the basis that T paid all the rent arrears.

T appealed the decision to make the adjournment conditional on the payment of the arrears. T failed to pay the arrears, the defence was struck out and a possession order made. In drafting the order for possession, L added provision for the matter to be transferred to the High Court for enforcement.

L then applied to the High Court for a writ of enforcement. In doing so, L stated that there was no other application or procedure pending. The writ was executed, T was evicted and the property re-let. T applied to set aside the writ.

Decision

The High Court granted the application. Lang J said:
    “A warrant or writ cannot be set aside after execution unless it was obtained by fraud, abuse of process or oppression – see Leicester City Council v Aldwinkle [1991] 24 HLR 40 , Hammersmith & Fulham Trust Limited v Ellis [2005] EWCA (Civ) 1233; [2006] HLR 7”.
Here there was no question of fraud or oppression, however, the failure to mention the appeal was a falsification amounting to an abuse or process which meant that that writ should be set aside.

Comment

The fact that the property had been re-let should have caused added difficulties for an already complicated case. The Judge seemed to be satisfied that the writ should be set aside on an undertaking by T that they would not seek to retake physical possession until the appeal(s) had been concluded.


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