Landlord and tenant – Possession proceedings – Property guardians – Respondent licensor seeking possession of property from licensees, including appellant, occupying premises as property guardians – Claim brought pursuant to CPR Part 55 on basis that licensees were trespassers – District judge making possession order – Appellant appealing – Whether judge wrongly making possession order where appellant disputing claim on substantial grounds – Whether substantial dispute that appellant granted exclusive possession – Appeal allowed in part
NHS owned premises at Stamford Brook Centre, 14-16 Stamford Brook Avenue, Hammersmith, London W6 which had been used to accommodate nursing staff and then as office space until they became empty.
NHS entered into a written property guardianship arrangement with GGM which was associated with the respondent company. GGM agreed to bring the premises into habitable condition and install individuals as “guardians”. The arrangements were to run initially for four months, thereafter determinable by four weeks written notice.
GGM granted a licence to the respondent under which guardians signed agreements directly with the respondent which was granted a sufficient interest in the properties to bring claims for possession against the guardians to whom it had granted licences.
NHS subsequently required possession of the premises to accommodate temporarily decanted staff. The respondent gave notice to the occupiers including the appellant. It was accompanied by the statutory particulars required to determine a tenancy or licence of a dwelling.
The respondent subsequently issued a claim for possession, naming the appellant and other individuals as defendants. The claim was brought pursuant to CPR Part 55 on the footing that the individuals were trespassers within the meaning of CPR 55.1(b). The district judge was not satisfied that there were substantial grounds for defending the claim and made an order for possession.
The appellant appealed contending, amongst other things, that the judge was wrong to make a possession order where the appellant had disputed the claim on substantial grounds. She ought instead to have made case management directions, sending the claim forward for trial; amongst other things, there was a substantial dispute whether the appellant had been granted exclusive possession.
Held: The appeal was allowed in part.
(1) The correct starting point for an appeal of this nature was that a decision whether to adjourn a hearing was pre-eminently a matter of judicial case management. A possession claim hearing might be adjourned for a wide range of reasons, not limited to those in CPR 55.8 (eg, lack of court time, sudden illness of a party, breakdown of video/audio arrangements, etc, etc) and on any such adjournment case management directions might or might not be given.
But the specific inclusion of the features identified in CPR 55.8 strongly suggested that if the claim before a judge had been disputed on grounds which appeared to the judge to be substantial, case management directions for the future determination of those matters should ordinarily be given.
The threshold in CPR 55.8 was relatively low. Albeit that whether to adjourn or proceed was a discretionary case management decision, the appeal court would interfere if what had been put before the judge was an outline defence which raised a genuine dispute with the claim on what appeared to be substantial grounds and the district judge was wrong not to identify it as such: Birmingham City Council v Stephenson [2016] HLR 44 considered.
It was notable that, in the present claim, as it stood before the judge at the short first hearing: (i) the appellant was represented by solicitors who specialised primarily in possession claims; (ii) the appellant had legal aid funding to defend the claim; (iii) a fully pleaded defence had been filed; (iv) that defence had been settled by specialist counsel; (v) the points taken had been considered sufficient enough to cause the respondent to engage the services of leading counsel who provided a detailed skeleton argument; (vi) the appellant had been in residential occupation of the property for many months rather than just a few days or weeks; (vii) the argument took over an hour with no time wasted; and (viii) the claim arose in the relatively novel area of emerging jurisprudence concerned with property guardianship.
(2) As regards the contention that there was a substantial dispute whether the appellant had been granted exclusive possession, the context was one in which the claimant for possession against trespassers accepted that it allowed the defendant into residential occupation, for payment, and had given notice to quit “a dwelling” which had expired following the entry of the parties into a ‘licence agreement’.
The appellant pleaded that she held a tenancy, and not a licence, of the premises. The task for the judge was to determine whether that appeared to raise a substantial defence to the claim. The respondent’s submission, that the matter was in effect foreclosed by the terms of the written licence agreement and the decision in Camelot Guardian Management Ltd v Khoo [2018] EWHC 2296 (QB), ought not to have been accepted by the judge and was rejected on appeal.
In the present case, the terms of the licence agreement entered into by the appellant might have been similar, or even identical, to those of the Camelot case. But that did not foreclose her from contending that, in the circumstances of her particular occupancy, she actually enjoyed a tenancy and that the licence agreement either innocently mislabelled the relationship or was a sham. Neither the licence agreement nor the Camelot case inevitably dictated the result of the lease/licence point in the present claim: Ibrahim v Haringey London Borough Council [2021] EWHC 731 (QB) considered.
The occupancy of the premises by the appellant began before the parties each signed the licence agreement now relied upon and the premises she occupied were not a former warehouse of some other empty commercial building but a property with a history of use for residential occupation. The licence being entered into by an incumbent resident in such accommodation might have very much coloured the contextual background.
Accordingly, the judge was wrong to find that the defence advanced did not even appear to raise substantial grounds for defending the claim.
(3) Having regard to the low threshold in CPR 55.8, one might have thought that, unless the points pleaded by the defence were unarguable, this was the sort of case very unlikely to have been suitable for determination on a summary basis. It might have been hoped that, post-Stephenson, fewer such successful appeals would be brought because fewer unsuitable cases would be determined on a summary basis. However, that was not the case and a clear steer was needed on the correct application of CPR 55.8 in the generality of cases.
Nick Bano (instructed by Edwards Duthie Shamash Solicitors) appeared for the appellant; Nicholas Grundy QC (instructed by Kelly Owen Ltd Solicitors) appeared for the respondent.
Eileen O’Grady, barrister
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