Benesco Charity Ltd v Kanj & Anor

On a summary possession claim, the court should not shut out a defendant where the evidence raises an arguable case that a tenancy exists, unless the evidence is incredible. The question under the summary possession procedure is whether the claim is genuinely disputed on grounds which appear substantial. Witness evidence should generally be tested at trial where it is capable of supporting the asserted legal interest. The existence of exclusive possession may be arguable on the totality of the evidence, even where the evidence is incomplete, ambiguous or open to serious cross-examination.

Benesco Charity Ltd sought summary possession of a garage occupied by Mr Kanj. The claim proceeded on the basis that the occupants were trespassers. Mr Kanj initially asserted a personal sub-tenancy, but later relied on an alleged sub-tenancy granted to Speedway Autocare Ltd and assigned to him.

HHJ Lamb QC concluded that the claim was not genuinely disputed on substantial grounds and refused permission to appeal. The issue before the High Court was whether the evidence disclosed a genuine and substantial dispute requiring a trial, particularly as to whether Autocare had a sub-lease involving exclusive possession.

1. Appeal allowed. The decision of HHJ Lamb QC summarily granting possession was set aside.
2. Under CPR 55.5(1) and (2), a summary possession claim should proceed to case management and trial where it is genuinely disputed on grounds which appear substantial.
3. The evidence should not be rejected at the summary stage unless it is incredible. The witness statements, read fairly and as a whole, asserted that Mr Kanj and/or Autocare had a sub-tenancy. The totality of the evidence made it at least arguable that Autocare had a sub-lease rather than a licence.
4. The evidence was ambiguous and exposed Mr Kanj and his wife to serious cross-examination. That was a reason for a trial, not a sufficient basis for summarily excluding the claim. The absence of clear evidence about the boundaries, security and control of the garage did not justify the conclusion that there was no evidence of exclusive possession.
5. The court declined to determine at the appeal stage the effect of the tenancy at will granted to ECRC Ltd, or the consequences of that arrangement for any sub-lease established by Autocare. Those issues were directed to be determined at the speedy trial.

• High Court (Chancery Division): Permission to appeal was granted and the appeal was allowed. The summary possession decision was set aside, with the disputed tenancy and related issues directed to trial.
• Central London County Court: HHJ Lamb QC held on 20 September 2011 that the possession claim was not genuinely disputed on substantial grounds and refused permission to appeal.