Possession order — Jurisdiction — Consent — Judge making possession order with consent of appellant tenant — Whether judge having jurisdiction to make order — Whether judge required to satisfy himself that grounds for possession established — Whether appellant’s consent amounting to admission of grounds — Appeal allowed
The appellant held an assured tenancy of a property in London E3. The respondent, which owned the reversion, having purchased it from the previous landlord, served a notice on the appellant, under section 8 of the Housing Act 1988, seeking possession of the property. It relied upon grounds 8 and 10 in Schedule 2 to the 1988 Act, which were, respectively, that the appellant owed at least eight weeks’ rent and that rent lawfully due was unpaid. Ground 8 was a mandatory ground, but ground 10 gave the court a discretion as to whether to order possession. In her defence, the appellant referred to an ongoing claim against her previous landlord, admitted that sums were “due” to the respondent, but alleged a right to set off those sums against a counterclaim in respect of breaches of the landlord’s duties.
Following discussions on the day of the trial, the appellant agreed to the making of a possession order. No formal hearing took place. Instead, the judge simply made the order as requested, after being informed that the claim was a ground 8 claim, and after confirming that the appellant did indeed consent. He did not read the trial bundle or hear any evidence.
The appellant appealed, contending that the judge had had no jurisdiction to make a possession order by consent, but had been required to satisfy himself that the necessary conditions had been fulfilled.
Held: The appeal was allowed.
The court’s jurisdiction to make a possession order under the 1988 Act was limited. It could do so only if it were satisfied that the relevant grounds had been established. It was therefore under a duty to investigate whether those grounds were made out, regardless of whether either party had put the matter in issue. Jurisdiction could not be conferred merely by the consent of the parties: Barton v Fincham [1921] 2 KB 291 and R v Newcastle upon Tyne County Court, ex parte Thompson [1988] 2 EGLR 119 applied.
It could not necessarily be implied from a tenant’s consent to an order for possession that he or she had admitted the relevant grounds. A consent could, for instance, merely be evidence of a compromise having been reached without admissions on either side. The key question, where the landlord relied upon the tenant’s consent, was whether there had been an appropriate admission of the relevant factors, and this would depend upon the particular circumstances. The relevant admission, whether express or implied, had to be clearly shown.
Both ground 8 and ground 10 required the court to be satisfied that the relevant rent was lawfully due, and to give express consideration to that matter. The rent “lawfully due” was the rent after deduction of the amount of any equitable set-off in respect of the appellant’s counterclaim for breach of the landlord’s obligations: British Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd [1979] 1 EGLR 65 and Connaught Restaurants Ltd v Indoor Leisure Ltd [1993] 2 EGLR 108 applied. Ground 10 also required the court expressly to consider whether it was reasonable to make the order.
In the present case, the judge had not been told, and had not asked, whether the appellant had admitted that at least eight weeks’ rent was lawfully due. He had not applied his mind to that question, and it was not sufficient for him to have asked whether the appellant consented to the order. The consent order itself did not contain any express or implied admission by the appellant. There was no other indication that the judge had given any independent consideration as to whether ground 8 had been satisfied. Nor had he given any consideration to the question of reasonableness, relevant to ground 10, since it had not been suggested to him that that ground had been relied upon. Accordingly, he had had no jurisdiction to make the possession order, which would therefore be set aside.
Daniel Lightman (instructed by Balsara & Co) appeared for the appellant; Peter-John White (instructed by London Law Practice) appeared for the respondent.
Sally Dobson, barrister
