Long lease – Forfeiture – Possession order – Respondent seeking to forfeit lease of flat for non-payment of ground rent – Appellant lessee not attending hearing – Forfeiture and possession order granted – Respondent re-entering flat – Appellant applying to set aside possession order more than a year after order made – Judge finding proceedings properly served on appellant and no grounds for setting possession order aside – Whether judge erroneously determining application under CPR 39.3 rather than CPR 3.1 or 3.9 – Whether entitled to take into account provisions for relief from forfeiture in section 138(9A) of County Courts Act 1984 –Appeal dismissed
In 2006, the appellant purchased, for £100,000, a 125-year lease of a flat in the respondent’s development in Hastings. Thereafter, the appellant failed to make any payments in respect of either the £150 pa ground rent reserved under the lease or the service charge.
The respondent brought proceedings to forfeit the lease, relying on arrears of ground rent in respect of which notice had been served under section 166 of the Commonhold and Leasehold Reform Act 2002. The proceedings were served at the appellant’s flat. At the hearing in June 2011, which the appellant did not attend, an order for forfeiture was made on the ground of arrears of ground rent in the sum of £600; a possession order was granted and judgment was also entered for the sum of £692 on the respondent’s money claim for the service charge arrears. The respondent re-entered the flat in September 2011.
In July 2012, the appellant applied to set aside the possession order. The county court judge rejected her contention that the proceedings had not been properly served at her “usual or last known residence” as required by CPR 6.9; he found that the relevant address for service was the flat and not, as the appellant contended, another address in Northern Ireland. Applying the provisions of CPR 39.3, the judge concluded that it would be inappropriate to set aside the possession order where the appellant had no good reason for not attending the forfeiture hearing, had not acted promptly after the order was made, particularly in light of the six-month period permitted for seeking relief from forfeiture, and had no reasonable prospect of successfully defending the proceedings.
The appellant appealed. She contended that the judge had erred in proceeding under CPR 39.3, which applied where a party did not attend at trial, since: (i) there had been a failure to serve, not a mere failure on her part to attend; and (ii) in her absence, there had been no trial but only a summary procedure. She submitted that the less restricted discretionary approach under CPR 3.1 and 3.9 applied. She further submitted that the judge had erred in applying section 138(9A) of the County Courts Act 1984 relating to relief from forfeiture.
Held: The appeal was dismissed.
(1) The disputed issue as to whether the flat was the appellant’s “usual or last known residence” had been suitable for summary judgment by the county court judge and did not require a trial. In considering the application to set aside the possession order on the ground of non-service, a determination was required as to whether the appellant had a good arguable case that the flat was not her usual or last-known residence, which could only be resolved by consideration of the evidence. The issue of whether a person’s use of a property characterised it as his or her “residence”, in the sense that her or she could fairly be described as residing there, was a question of fact and degree. The resolution of that issue was a matter for the judge had his assessment of the evidence. There were no grounds for concluding that his findings were unsupported by the evidence or unreasonable. There had been valid service of the application for forfeiture and of the subsequent application for a possession order.
(2) Where the court made a possession order in the absence of the tenant following forfeiture of a lease for non-payment of ground rent, and the tenant subsequently applied to have the order set aside, the relevant rule was CPR 3.1. However, in the absence of some unusual and compelling factor, a court that was asked to set aside a possession order under CPR 3.1 should, in general, apply the requirements of CPR39.3(5) by analogy. Accordingly, the judge had not erred in applying CPR 39.3: Hackney London Borough Council v Findlay [2011] EWCA Civ 8 applied; Forcelux Ltd v Binnie [2009] EWCA Civ 854 distinguished. Likewise, section 138(9A) of the 1984 County Court Act 1984 had been relevant so far as it provided that a tenant could apply to the court for relief at any time within six months of the date on which the landlord recovered possession. The appellant’s failure to apply within that six-month period was a relevant consideration when applying CPR 39.3(5).
Bruce Speller (instructed by Funnel & Perring Solicitors, of Hastings) appeared for the appellant; Abigail Cohen (instructed by Jeremy Simon & Co, of Watford) appeared for the respondent.
Sally Dobson, barrister
