Ahern v Southern Housing Group Ltd

On a renewed application for permission to appeal, the relevant threshold is whether the proposed appeal has a real prospect of success, a relatively low threshold. An appeal concerning a section 21 possession notice could properly raise whether the notice was lawful when served by reference to public-law considerations, including alleged breaches of the landlord’s policies and other public-law errors. The issue was not necessarily confined to rationality. Permission may be granted despite limited confidence in the eventual prospects of success.

Southern, a registered provider of social housing, obtained a forthwith possession order against Mr Ahern in Brighton County Court. The proposed appeal concerned the lawfulness of Southern’s section 21 notice, including alleged departures from its policies and other public-law errors. Patten LJ refused permission on the papers. Mr Ahern renewed the application before the Court of Appeal, which considered whether the proposed grounds crossed the relatively low threshold for permission.

Permission to appeal granted. Sir Colin Rimer considered both grounds of appeal sufficiently arguable to pass the real-prospect-of-success test, although he had no great confidence that the appeal would ultimately succeed.

1. The first ground raised whether the county court judge had properly considered the lawfulness of service of the Housing Act 1988 section 21 notice at the time it was served. This included alleged failures to comply with Southern’s policies and procedures.
2. The second ground raised whether the judge had been required to consider alleged public-law errors, and not merely the rationality of serving the notice. The judge’s observation that the issue was not compliance with the letter of Southern’s policies gave the proposed appeal an arguable basis.
3. The court did not determine the merits of those public-law issues. It granted permission on both grounds and stayed execution of the possession order and the warrant for eviction pending judgment on the appeal or further order.
4. Southern was given liberty, on 48 hours’ prior written notice to Mr Ahern’s solicitors, to apply to vary or discharge the stay.

• Court of Appeal (Civil Division): On 16 July 2015, the renewed application for permission to appeal was granted on both grounds. Execution of the possession order and eviction warrant was stayed.
• Brighton County Court: His Honour Judge Simpkiss made a forthwith possession order on 10 March 2015.
• Permission stage: Patten LJ refused permission to appeal on the papers on 13 May 2015.