London Fire & Civil Defence Authority v Sayed Jamel Ahktar

On an application under CPR 39.3(5) to set aside an order made in a party’s absence, the court must consider promptness, the reason for non-attendance and reasonable prospects of success. In a secure-tenancy possession claim based on rent arrears under the Housing Act 1985, a disrepair counterclaim need not extinguish the arrears. It remains relevant to whether making a possession order is reasonable. An arguable error in assessing that issue, or the reason for non-attendance, may justify allowing the application to proceed.

The London Fire & Civil Defence Authority obtained a 28-day possession order, a money judgment of approximately £12,178 and costs against Sayed Jamel Ahktar in Lambeth County Court after he failed to attend the hearing.

Mr Ahktar applied to set the order aside, relying on ill health and a counterclaim for disrepair supported by surveyors’ reports. His application was considered under CPR 39.3(5). The Court of Appeal examined whether the county judge had properly addressed promptness, the reason for non-attendance and reasonable prospects of success.

1. Application allowed and adjourned. The application was allowed to continue and adjourned for a further hearing on notice, with an appeal to follow if permission were granted. A stay was granted on terms requiring the applicant to begin paying current rent within 14 days and to maintain those payments during the stay.
2. Under CPR 39.3(5), the court had to consider whether the applicant had acted promptly, had a good reason for non-attendance and had reasonable prospects of success. The county judge’s treatment of promptness was arguably wrong if he had found that a 13-day delay was not prompt in the circumstances.
3. The reasoning on non-attendance was insecure. The note did not show that the judge had addressed evidence that a medical certificate had been faxed to the court. It also failed to explain the treatment of the relevant certificates or the credibility of the deponent. The conclusion that there was no good reason for non-attendance was therefore open to doubt.
4. The prospects-of-success assessment was arguably flawed. The possession claim was based on rent arrears under ground 1 of Schedule 2 to the Housing Act 1985. Even if a disrepair counterclaim did not extinguish the arrears, it was relevant to the discretionary assessment whether possession was reasonable. A counterclaim potentially worth approximately £11,500 could materially affect that assessment.
5. The litigation was described as wholly disproportionate. Before any further listing, the parties were to be invited to submit to the Court of Appeal ADR service. The operative directions also dealt with bundles, public funding and costs of the appeal.

• Court of Appeal (Civil Division): The application was allowed and adjourned for further hearing on notice, with an appeal to follow if permission were granted.
• Lambeth County Court: His Honour Judge Welchman made the possession order, money judgment and costs order after the applicant failed to attend. His Honour Judge Cox later determined the application to set aside under CPR 39.3(5); the Court of Appeal held that aspects of his reasoning were arguably wrong.