Possession notice – Housing Act 1988 – Non-payment of rent – Respondent landlord serving possession notice under section 8 of 1988 Act relying on non-payment of two months’ rent within ground 8 in Schedule 2 – Possession order made at hearing attended by both parties – Application to set aside dismissed – Judge subsequently declining to hear appeal against original notice on grounds relating to defective notice – Judge instead directing formal application to appeal possession order out of time – Whether judge erring in exercise of discretion – Appeal dismissed
The appellant was the tenant of a house under an assured shorthold tenancy from the respondent landlord, at a monthly rent of £650. In April 2012, the respondent served a notice, under section 8 of the Housing Act 1988, seeking possession for non-payment of rent. The notice stated that the respondent was relying on one of the mandatory grounds in in Schedule 2 to the 1988 Act, namely ground 8, which it paraphrased as being that: “the tenant owed at least two months’ rent…” before further explaining that the appellant owed £1,680, which represented three months’ rent. Both parties attended a subsequent hearing of the respondent’s claim for possession, at which a possession order was made by a district judge.
The appellant applied to have the possession order set aside, and to stay the warrant for possession, on the ground that the respondent’s notice was defective owing to the failure to include the statutory words “rent means rent lawfully due from the tenant” contained in ground 8. That application was dismissed by a second district judge, who considered that the notice did not comply with the statutory requirement to set out the ground relied on, owing to its failure to set out the statutory language verbatim, but held that he had no power to set aside a possession order made in the presence of both parties.
The second district judge’s decision was upheld by a judge on appeal. The judge agreed that there had been no power to set aside the order, but she also expressed the view that the notice had in fact been in proper form since it gave the required information to the tenant. She rejected a request from the appellant, made in the course of oral argument, that she should hear and allow an appeal from the original possession order; she directed that the appellant would need to make a formal application for permission to appeal out of time. The appellant was subsequently unsuccessful in such an application.
On a further appeal, the appellant contended that the judge should not have required a formal application for permission to appeal against the possession order out of time but should instead have recognised that the defective notice point was arguable, given permission to appeal against the district judge’s order and allowed that appeal.
Held: The appeal was dismissed.
The district judge had correctly held that he had no jurisdiction to set aside the possession order in circumstances where the appellant had attended the hearing at which that order was made: Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen [2003] EWHC 1740 (Ch), Collier v Williams [2006] EWCA Civ 20; [2006] PLSCS 22, Roult v North West Strategic Health Authority [2009] EWCA Civ 444 and Thevarajah v Riordan [2014] EWCA Civ 14 applied; Hackney London Borough Council v Findlay [2011] EWCA Civ 8; [2011] PLSCS 19 distinguished. That was therefore the end of any appeal from the district judge’s decision.
As to any appeal from the original possession order, the decision to direct a formal application for permission to appeal was not open to challenge in the Court of Appeal as being wrong in principle. It was a case management decision of the kind with which the appeal court had always been unwilling to interfere. It would be wrong for that court to lay down principles as to when county courts should direct separate permission applications and when, if ever, they should take steps to bring on an appeal from possession proceedings. Everything would depend on the circumstances of the particular case.
The judge’s exercise of discretion was not based on an erroneous view of the law in relation to the defective notice. The grounds in Schedule 2 to the Act could be validly specified in the notice in words different from the statutory language, provided that the words were adequate to achieve the legislative purpose of giving to the tenant the information that the provision required to be given in the notice, so as to enable the tenant to consider her position and do whatever was in her power to put things right and to best protect her against the loss of her home. The respondent’s notice was not vitiated by the failure to include the statutory words “rent means rent lawfully due from the tenant”. A statement that rent was “unpaid” would not be the same as a statement that rent was lawfully due, since the party served with a notice in those terms would not appreciate that she could argue that the rent, although unpaid, was not lawfully due. By contrast, a statement that rent was “owed”, as in the instant case, was sufficient notice to enable a recipient to appreciate that it would be an answer to the claim to show that the rent was not lawfully due: Mountain v Hastings (1993) 25 HLR 427; [1993] 2 EGLR 53; [1993] 29 EG 96 distinguished. It followed that the judge had not misdirected herself when she concluded that the notice given by the respondent was not defective. Her exercise of discretion to direct a formal application for permission to appeal was therefore beyond reproach. Even if the judge had taken the course advocated by the appellant of hearing and determining the appeal from the possession order, she should, on that point at least, have dismissed it.
Per curiam: Although a notice that did not set out the statutory language verbatim would not necessarily be invalid, the following statement of Ralph Gibson LJ in Mountain v Hastings remained sound advice: “It is difficult to think of any good reason why a person given the task of settling a form of notice should choose to use words differently from those in which the Crown has stated in the schedule”.
Sylvester Carrott (instructed by Rodman Pearce Solicitors Ltd, of Luton) appeared for the appellant; Robert Rees (instructed by DV Solicitors LLP, of Bedford) appeared for the respondent.
Sally Dobson, barrister
