Practice and procedure – Landlord and tenant – Possession order – Variation – Appellants appealing against decisions of county court concerning procedure for recovery of possession of dwelling houses held on secure and assured tenancies – Whether county court having jurisdiction to vary existing suspended possession order from discretionary to mandatory grounds – Appeals dismissed
Two appeals, heard together, both raised questions about the procedure a landlord had to follow to recover possession of a dwelling house on the ground of anti-social behaviour resulting in conviction for a serious offence. The Hajan appeal concerned a secure tenancy protected by the Housing Act 1985; the Poplar appeal concerned an assured tenancy protected by the Housing Act 1988.
The issue on both appeals was whether the county court had power, on a landlord’s application, to vary an existing suspended possession order made on discretionary grounds, to an outright possession order on a mandatory ground.
In Hajan, the question was whether a landlord who served notice under section 83ZA of the 1985 Act might apply to amend existing proceedings to allow reliance on that ground; or whether such a landlord had to begin fresh proceedings to rely on it. The appellant argued that section 83ZA(9)(a) and section 83A(2) together meant that the landlord had to “begin” proceedings after the specified date. Amending existing proceedings did not comply with that requirement, because the proceedings had already begun.
In Poplar, the issue was whether the court, in exercise of its wide powers in respect of assured tenancies under section 9 of the 1988 Act (and section 85 of the 1985 Act for secure tenancies) or under an implied “liberty to apply”, had power to vary a suspended order for possession originally made on a discretionary ground by making an unconditional order on a mandatory ground.
Held: The appeals were dismissed.
(1) The overall purpose of the mandatory ground for possession (in both the 1985 Act and the 1988 Act) was to expedite the eviction of landlords’ most anti-social tenants to bring faster relief to victims. The provisions were introduced to speed up the possession process in cases where anti-social behaviour or criminality had already been proven by another court.
(2) The issue in Hajan raised questions as to the meaning of “proceedings” in sections 83ZA(9) and 83A; and when proceedings were “begun” for the purposes of those sections. The purpose of section 83ZA was to inform the tenant of the landlord’s decision (with reasons), give them a fair opportunity to request a review of it and ensure that the tenant was not subjected to proceedings based on a stale conviction. The purpose of section 83A(2) was to preclude the court from acting unless that process had been concluded.
Where a landlord began an action based on a discretionary ground for possession, it necessarily placed in the hands of the court the decision whether it was reasonable to make an order and, if so, whether that order should be suspended. One purpose of the review in circumstances like the present was to give the tenant the opportunity to persuade the landlord to leave the decision whether to make a possession order in the hands of the court, rather than deprive the court of discretion.
In the light of those considerations, it was possible to interpret “proceedings” as referring to an amended claim. Those proceedings were “begun” when the landlord obtained the assistance of the court in securing possession on the ground of satisfaction of one of the conditions in section 84A by permitting an amendment and specifying when it came into effect.
Accordingly, giving a purposive interpretation to sections 83ZA and 83A(2), if the court were to exercise its power to fix a date from which the amendment took effect, there would be no difficulty in interpreting the word “proceedings” as referring to amended proceedings, and regarding those proceedings as having “begun” on the date when the amendment took effect.
(3) Although the issue in Poplar concerned the powers of suspension and variation under section 9 of the 1988 Act, most of the case law concerned section 85 of the 1985 Act. On an application under section 85, the court might consider matters that were not within the scope of the original proceedings which led to the making of the possession order in the first place. In the light of those matters, the court might reconsider any terms of suspension or postponement of possession; in the exercise of its powers under that section the court might vary a conditional order to turn it into an outright order. It was also clear that the court might exercise its powers under section 85 at any time before the execution of the order; and might do so on multiple occasions either at the instance of the tenant or of the landlord: Sheffield City Council v Hopkins [2001] EWCA Civ 1023; [2001] PLSCS 136; [2002] HLR 12 and Manchester City Council v Finn [2003] HLR 41 applied.
Section 9 of the 1988 Act was in very similar terms. Its purpose was the same as that of section 85 of the 1985 Act. The trigger for section 9(2) and the power to suspend an order was the making of an order for possession. In this case, that was the original order. The powers under section 9(3) to impose conditions were triggered by the suspension of the order under section 9(2). Section 9 remained engaged for as long as the original order (made on a discretionary ground) remained unexecuted.
Section 9(6) removed the court’s power to stay, suspend or vary, where the landlord was entitled to possession on mandatory grounds. It did not preclude the court from considering material that would have established a mandatory ground when considering varying an order for possession which had originally been granted on a discretionary ground. It was still necessary for the court to exercise its discretion in the light of the new material. However, if the court was satisfied that the mandatory ground was made out, the discretion could in reality only be exercised one way. Since the power under section 9 included the discharge of conditions originally imposed, the court might discharge conditions subject to which the order for possession was suspended and allow it to take effect as an immediately enforceable order.
(4) Section 9 of the 1988 Act, like section 85 of the 1985 Act, conferred on the court a continuing jurisdiction (until execution of the possession order) to re-examine the terms of any suspension in the light of circumstances existing at the time when it was asked to carry out that review.
In the Hajan appeal: Toby Vanhegan and Stephanie Lovegrove (instructed by G T Stewart Solicitors & Advocates) appeared for the appellant; Nicholas Grundy KC and Serena Lee (instructed by Brent LBC Legal Services) appeared for the respondent. In the Poplar appeal: Martin Hodgson and Daniel Grütters (instructed by T V Edwards LLP) appeared for the appellant; Laura Tweedy, Jaysen Sharpe and Callum Reid-Hutchings (instructed by In House at Poplar HARCA) appeared for the respondent.
Eileen O’Grady, barrister
