Housing Act 1985 – Secure tenancy – Postponed possession order – Date for possession – Appellant council applying to court to fix date for possession on ground respondent’s tenant of alleged breaches by conditions of postponed possession order – Judge refusing to determine application summarily and fixing date for hearing – Whether summary judgment to be given on applications to fix date for possession save in exceptional circumstances – Appeal dismissed
The respondent was the tenant of a flat let by the appellant council under a secure tenancy within the Housing Act 1985. Following the respondent’s conviction for cultivating cannabis in the flat, the appellants brought proceedings seeking possession both on the grounds of rent arrears and of the nuisance consequent upon the cannabis. At a hearing in November 2006, the district judge found that the grounds for possession were made out and that it was reasonable to make a postponed possession order under section 85(2) of the 1985 Act, with conditions of postponement relating both to the payment of rent and arrears and to observing the terms of the tenancy.
The respondent’s neighbours subsequently complained to the appellants regarding anti-social conduct by visitors to the respondent’s flat. The appellants wrote to the respondent asserting that he was in breach of the postponed possession order and notifying him of their intention to apply to fix a date for possession. They made the application on the ground of further serious incidents of anti-social behaviour, in breach of the terms of the tenancy. The respondent asserted that the neighbours’ allegations were false and issued a cross-application for an adjournment of the appellants’ application with directions for a full hearing. The district judge declined to determine the appellants’ application without hearing evidence and gave directions for a hearing with a time allocation of one day. The appellants were given permission to appeal those directions, and did so. The appeal was dismissed in the High Court, and was renewed before the Court of Appeal.
On the appeal, the appellants contended that, save in exceptional cases, county courts should give summary judgment without hearing evidence on applications to set a date for possession on a postponed possession order. It relied by analogy upon the provisions of CPR 55 PD 10 concerning the ordinary procedure for an application to fix a date for possession in cases of a breach of conditions relating to the payment of rent and arrears.
Held: The appeal was dismissed.
Although there was no difficulty in adapting the provisions of CPR 55 PD 10 to nuisance cases, that practice direction could not merely be read across from the one situation to the other. Arrears were ordinarily a matter of record, and any dispute regarding the accuracy of the lessor’s records would commonly depend upon those of the tenant. By the time the application to fix a date for possession came before a district judge, it would ordinarily be apparent whether the issue was triable. A hearing should be directed only where there was a triable issue; in that event, the application should be adjourned to a suitable date for a hearing with the tenant in attendance. A similar procedure should be followed with nuisance cases so that if, on being notified of an impending application and invited to respond, the tenant remained silent or put forward a spurious or irrelevant response, it would be proper to make an order summarily. However, if an issue were raised that was capable of affecting the court’s decision, justice required that the tenant should be given an opportunity to put his case. It was not permissible for a tenant who had a possible answer to lose his home unheard. A hearing should be conducted expeditiously according to a judicial appraisal of how the issues could be fairly and economically determined.
The district judge in the instant case had not misunderstood the procedure or the issue with which she was dealing. It was appropriate to fix a date for possession summarily, without considering further evidence than had been submitted by the landlord, in cases involving an established breach: Southwark London Borough Council v St Brice [2001] EWCA Civ 1138; [2002] 1 WLR 1537 considered. However, the appellants had not proved a breach of the conditions of postponement. Without such proof they could not ask the court to fix a date for possession. The district judge had manifestly been in no position to resolve that issue summarily in the appellants’ favour and an adjournment was unavoidable.
Jon Holbrook (instructed by Ashfords, of Exeter) appeared for the appellants; Robert Latham and Jim Shepherd (instructed by Flack & Co) appeared for the respondent.
Sally Dobson, barrister
