Kishenin (t/a Beidebecke's Hotel and Restaurant) v Von Kalsten Bleach & Ors

An order for possession cannot be made against a party without evidence that the party was or had been in possession. Where a party has applied to strike out, the court must address that application and identify the evidence answering it. Costs must be considered separately. Without evidence against joined parties, there is no basis to order them to pay the claimant’s costs, and the proper order will ordinarily be payment of their costs by the claimant. An extension of time to appeal requires consideration of the seriousness of delay, the reason for it and all the circumstances. Truly exceptional circumstances may justify relief despite substantial delay.

The High Court ordered the defendants to vacate a hotel and pay the claimant’s costs. The order was made after the court determined the first defendant’s alleged occupation arrangements largely from his written evidence, without separately determining the second defendant’s application to strike out the claim against her.

The second defendant appealed, contending that she was merely an employee and that there was no evidence that she possessed the hotel. She also sought to pursue an appeal on behalf of a company which had been omitted from the appellant’s notice. The central issues were whether time should be extended for the company and whether the possession and costs orders against the second defendant and the company were justified.

Appeals allowed. The Court of Appeal extended time for Scarborough Cocktails Ltd to file an appellant’s notice, directed that the notice filed by Ms Shard should stand as the company’s notice, and granted the company permission to appeal.

1. In considering an extension of time, the court applied the three-stage approach identified in Denton v T H White Ltd [2014] EWCA Civ 906. It considered whether the delay was serious or significant, whether the explanation was reasonable, and whether an extension was just and appropriate in all the circumstances. The need for efficient litigation at proportionate cost and the need to enforce compliance with rules and orders were important. The delay here was exceptionally long, but Ms Shard’s genuine failure to realise that the company had been omitted from the appeal, the identical factual position of the company and Ms Shard, and the potential consequences for her as sole director made an extension just.
2. The possession orders against Ms Shard and the company could not stand. The evidence relied upon, consisting principally of Mr Bleach’s statement and pleadings, did not establish that either of them was or had been in possession of the hotel. The judge should have dealt with their applications to strike out and considered the evidence relevant to those applications.
3. The costs orders were also wrong. The judge had given no adequate consideration to whether either appellant should pay the claimant’s costs. On the evidence before the court there was no basis for such orders. The proper order was that the claimant pay the costs of the parties who had been joined but against whom no evidence had been adduced. Evidence that a demand to give up possession had been made and not obeyed might have affected the costs decision, but no such evidence was presented.
4. The claimant was given 14 days after service of the order and judgment to apply to set aside the orders relating to the company. Ms Shard was awarded £2,000 for her costs of the action and appeal, payable within 28 days.

1. Court of Appeal (Civil Division): appeals by Ms Shard and Scarborough Cocktails Ltd allowed in [2015] EWCA Civ 1184.
2. High Court, Chancery Division: Mr E Murray, sitting as a Deputy Judge, ordered the defendants to give up possession of the hotel and pay the claimant’s costs on 28 July 2014.