Wandsworth v Whibley

On an application to fix a possession date under a postponed possession order, the landlord must establish breach of the order’s conditions. The original possession order proves the earlier grounds for possession; it does not prove a later breach. The court must examine the circumstances and decide whether a possession date should be fixed. Summary determination is appropriate where no tenable answer is advanced, but a tenant raising a potentially material issue must have a fair opportunity to present it. A bare denial or unsupported assertion is ordinarily insufficient.

A secure tenant faced possession proceedings after convictions for cultivating cannabis and complaints of nuisance and antisocial behaviour. The county court made a postponed possession order, but the order as drawn initially included only rent-related conditions. The local authority later applied to fix a possession date, relying on alleged nuisance and seeking summary determination. The tenant disputed the allegations and said that others had taken over the property and caused the nuisance.

The district judge adjourned the application for disclosure and a full hearing. Her Honour Judge Hallon dismissed the local authority’s appeal. The issue before the Court of Appeal was whether an application to fix a possession date following an alleged breach of a postponed possession order should ordinarily be determined summarily on written evidence.

1. Appeal dismissed. The district judge had power to adjourn the application and direct a hearing. The order was neither irrational in content nor outcome.
2. Under the Housing Act 1985, a landlord seeking to fix a possession date must prove a breach of one or more conditions of the postponed possession order. Proof of the original arrears or nuisance, and the resulting possession order, does not prove the subsequent breach.
3. Rix LJ’s dictum in Southwark LBC v St Brice [2002] 1 WLR 1537, that a lessor need not prove again what it has already proved, did not govern this issue because the alleged later breach remained unproved.
4. The court has an obligation, rather than merely a discretion, to examine the circumstances and decide whether it is right to fix a possession date. Summary judgment may be appropriate where no triable answer is advanced.
5. Where the tenant raises an issue capable of affecting the decision, justice requires an opportunity to present the case. A bare denial or unsupported assertion will ordinarily not suffice; details capable of amounting to a cogent answer are expected where there is prima facie evidence of repetition. Hearsay evidence may be used and the hearing conducted expeditiously.
6. The procedure in 55 CPR PD 10, framed for payment defaults, may be adapted to nuisance cases but cannot simply be transposed. The court should use a fair and economical procedure suited to the issues.

Lord Justice Lawrence Collins and Lord Justice Tuckey agreed with Lord Justice Sedley.

• Court of Appeal (Civil Division) [2008] EWCA Civ 1259 dismissed the second appeal.
• Wandsworth County Court Her Honour Judge Hallon dismissed the local authority’s appeal from District Judge Gittens’s directions order.
• Wandsworth County Court District Judge Gittens adjourned the application to fix a possession date and directed disclosure and service of witness statements.