Grimason v Cates

For service of possession or forfeiture proceedings, a person may have more than one residence. Whether an address is the person’s usual or last known residence is a question of fact and degree, assessed by the person’s pattern of life and the evidence available to the claimant.

That issue may be determined on an interlocutory or summary application where the evidence permits a proper conclusion. When a tenant seeks to set aside a possession order made in the tenant’s absence, the requirements of CPR 39.3(5) ordinarily apply by analogy, alongside the court’s general case-management discretion. The six-month period for seeking relief from forfeiture under section 138(9A) of the County Courts Act 1984 is relevant to promptness. Article 1 of the First Protocol did not make the forfeiture disproportionate on these facts.

The appeals arose from two orders made by His Honour Judge Hollis in the Hastings County Court on 14 February 2013. The underlying dispute concerned the forfeiture of a 125-year lease of a flat after non-payment of ground rent and service charges.

The appellant sought to set aside the possession order, alleging that the forfeiture proceedings had not been served at her usual or last known residence. She also challenged the application of CPR 39.3(5), relied on relief from forfeiture, and raised proportionality under Article 1 of the First Protocol. Her separate restitution and unjust-enrichment proceedings had been struck out. The central issues were whether service was valid, which procedural test governed the application to set aside, and whether the forfeiture was disproportionate.

1. Service. The appeal court held that the issue under CPR 6.9 was whether the flat was the appellant’s usual or last known residence. Residence is a question of fact and degree, assessed by the person’s pattern of life: [2010] EWCA Civ 560. The issue can be resolved at an interlocutory stage by considering the evidence where the material facts are sufficiently established.
2. The evidence supported the finding that service at the flat was valid. It included the appellant’s instructions that correspondence and service should be sent there, the Land Registry address, telephone evidence, the condition of the flat when possession was taken, and a later reference to it as her home. The fact that she also lived or stayed in Northern Ireland did not prevent the flat from being a residence.
3. Setting aside the possession order. The court distinguished Nelson & Hanley v Clear Springs (Management) Limited [2006] EWCA Civ 1252, because that case involved service at an address known to be wrong. It adopted the approach in London Borough of Hackney v Findlay [2011] EWCA Civ 8: absent unusual and highly compelling circumstances, CPR 39.3(5) should generally be applied by analogy to an application under CPR 3.1.
4. Forcelux Limited v Binnie [2009] EWCA Civ 854 was confined to its unusual facts, including defective service, the landlord’s knowledge of the tenant’s absence, a defence to possession, willingness to pay, and a subsisting claim for relief from forfeiture. The appellant had acted far outside the six-month period in section 138(9A) of the County Courts Act 1984 and had no reasonable prospect of defending the forfeiture.
5. The proportionality challenge under Article 1 of the First Protocol had no merit. The statutory and procedural protections available to the appellant had been considered, and the orders below were not disproportionate. Both appeals were dismissed. The appellant was ordered to pay the respondent’s costs of £4,212.60 inclusive of VAT.

• High Court (Queen’s Bench Division): appeals from orders of His Honour Judge Hollis dated 14 February 2013 were dismissed.
• Hastings County Court: the appellant’s application to set aside the possession order was dismissed and her separate claims were struck out.