A possession order is a final order, and it will therefore be rare for it to be set aside using the court’s case management powers under CPR 3.1(7).
The court’s general powers of management include a power to vary or revoke an order (CPR 3.1(7)). Authorities draw a distinction between interim and final orders, with the basis for varying or revoking a final order being very much narrower than those that are interim in nature.
In the appeal of Peter Singh Sangha v Amicus Finance plc (In Administration) [2020] EWHC 1074, Mr Justice Zacaroli confirmed that a possession order is a final order.
On 30 July 2015, Amicus Finance plc (Amicus) had loaned approximately £550,000 to Mr Peter Singh Sangha (Mr Sangha), secured by first legal charge over a property at The Mount in Reservoir Road, Birmingham (the Mount). Contrary to the terms of the loan, it was not repaid. Amicus issued possession proceedings and eventually a possession order was made.
Mr Singh failed to give up possession of the Mount by the date ordered (1 March 2017) and Amicus applied for a warrant. Mr Singh applied to suspend that warrant with the hearing of that application adjourned to 4 December 2017, in part to allow further evidence. No further evidence was provided.
Instead, on 1 December 2017 Mr Singh made an application under CPR Rule 3.1(7). His evidence was that on 30 November 2017 he had had a conference with counsel, became aware that he had a potential defence to the possession proceedings and a draft defence and counterclaim was prepared (raising issues linked with other proceedings between the parties).
The hearing of 4 December 2017 stayed the application to suspend the warrant (pending determination of the application to set aside) and stayed the possession order in light of the last-minute application to set it aside. The application to set aside the possession order came before Deputy District Judge Sharp on 6 April 2018, when it was dismissed.
DDJ Sharp treated the possession order as a final order. On appeal it was argued that this approach was incorrect and that possession orders by their nature were a hybrid. Mr Justice Zacaroli reviewed the authorities and rejected this contention. Possession orders are final orders.
To set such final orders aside, it is not sufficient to show that there was a change in circumstances or that the facts were misstated at the time of the original decision. The importance of finality is a critical consideration in an application to set aside a final order. The circumstances in which it might be appropriate to set aside a final order will be very rare.
There was also an attempt to argue that Mr Singh’s attendance at the hearing where the possession order had been made was ineffectual such that it should be treated as akin to non-attendance, arguably increasing the possibility of the order being set aside. This idea of “ineffectual” attendance was (perhaps unsurprisingly) rejected – attendance or non-attendance at a hearing is a simple binary issue.
The deputy district judge had made no error of law on the need for finality and the need to avoid an appeal by another route. Her discretion had been properly exercised. The appeal was dismissed.
Elizabeth Haggerty is a barrister at Lamb Chambers
