London Borough of Hackney v Findlay

A possession hearing conducted in a tenant’s absence is not a trial for the purposes of the Civil Procedure Rules. The court may therefore set aside the resulting order under its general case-management power.

Unless unusual and highly compelling circumstances exist, the court should apply the requirements of CPR 39.3(5) by analogy. Promptness, a good reason for non-attendance and a reasonable prospect of success take precedence over the broader CPR 3.9 considerations.

Those requirements may be applied less rigorously to a secure tenant where strict application would defeat the opportunity contemplated by section 85(2) of the Housing Act 1985. Execution of the possession order remains a highly relevant circumstance, particularly where the property has been reallocated or refurbished.

A local authority obtained an outright possession order against a secure tenant who did not attend the hearing. The order was executed, but a district judge subsequently set it aside and permitted re-entry. On appeal, HHJ Birtles QC upheld that decision and held that the requirements of CPR 39.3(5), and the execution of the warrant, need not be treated as controlling considerations.

The local authority appealed from the Mayor’s and City of London County Court. The central issue was how the discretion under CPR 3.1 should be exercised when a tenant seeks to set aside a possession order made in the tenant’s absence, particularly after execution.

1. The appeal was allowed unanimously. The orders of HHJ Birtles QC and DJ Armon-Jones were set aside in part. The outstanding factual and legal issues were remitted to a district judge.

2. Forcelux Limited v Binnie [2009] EWCA Civ 854 was not decided per incuriam. A short possession hearing is not a trial for CPR 39.3, and the court has power under CPR 3.1 to set aside an order made at such a hearing when the interests of justice require it. Roult v Strategic Health Authority [2010] 1 WLR 487, concerning the reopening of a final order rather than an order made in a party’s absence, did not compel a different conclusion.

3. The discretion is not normally wide and unstructured. Unless there is an unusual and highly compelling consideration of the kind present in Forcelux, the court should apply CPR 39.3(5) by analogy. It should therefore consider whether the applicant acted promptly, had a good reason for not attending and has a reasonable prospect of success. Those requirements should ordinarily take precedence over the broader considerations in CPR 3.9, although all the circumstances remain relevant.

4. A qualification applies to secure tenancies. Section 85(2) of the Housing Act 1985 contemplates that a secure tenant may ask the court, before execution, to stay or suspend enforcement or postpone possession. The CPR 39.3(5) requirements should not be applied so rigorously that this statutory purpose is defeated. When assessing the explanation for non-attendance, the court may consider the Rent Arrears Pre-Action Protocol, social landlords’ best practice and the wider social context.

5. Execution of a possession order is a relevant circumstance and will ordinarily be highly relevant absent a compelling countervailing factor. Its weight depends on the facts, including whether the landlord has properly reallocated or incurred expense refurbishing the property. If the underlying possession order is set aside, however, the execution must also be set aside, restoring the opportunity for an appropriate order under section 85(2).

6. The Court of Appeal could not determine the tenant’s application because material factual disputes remained, including disputes about the arrears and housing benefit. A separate allegation of oppression in the execution of the warrant also remained unresolved. Those matters were remitted without the court expressing a view on their merits.

1. Court of Appeal (Civil Division): Allowed the local authority’s appeal unanimously, set aside in part the orders below and remitted the outstanding issues to a district judge: [2011] EWCA Civ 8.

2. Mayor’s and City of London County Court: HHJ Birtles QC dismissed the local authority’s appeal, upheld the setting aside of the possession order and the tenant’s re-entry, and remitted the possession claim for a further hearing.

3. County Court: DJ Armon-Jones set aside the possession order under CPR 3.1(7), permitted the tenant to re-enter and adjourned the possession claim.

4. County Court: DJ Manners made an outright possession order and entered judgment for the arrears after the tenant failed to attend.