Sangha v Amicus Finance Plc

A possession order is a final order for the purposes of CPR Rule 3.1(7) where it finally determines the claimant’s right to possession, even if other claims remain, execution is required, or statutory rights to suspend possession exist. The power to vary or revoke a final order is therefore confined to very rare and exceptional circumstances. A party who attended the hearing cannot ordinarily invoke the special approach applicable to an absent defendant by describing that attendance as “ineffectual”. The importance of finality, delay, and the avoidance of an appeal by another route are central considerations. The possibility of inconsistent decisions in related proceedings will not ordinarily justify reopening a final possession order.

Amicus Finance Plc obtained a possession order against Peter Singh Sangha in respect of a mortgaged property. Mr Sangha later applied under CPR Rule 3.1(7) to set the order aside, relying on a proposed misrepresentation defence connected with separate proceedings concerning another property and loan.

The Deputy District Judge dismissed the application, holding that the possession order was final, that there had been no material change of circumstances or misleading of the court, and that finality weighed heavily against reopening the order. Mr Sangha appealed, arguing that the order was hybrid or interim in character, that his attendance had been “ineffectual”, and that the related proceedings created a risk of inconsistent decisions.

1. Appeal dismissed. The possession order was a final order. It finally determined Amicus’s right to possession of The Mount, notwithstanding that the money claim remained unresolved, execution was still required, the mortgage could be redeemed, or possession could be suspended or postponed.
2. There was no third or hybrid category of order. The distinction between final and interim orders is material under CPR Rule 3.1(7). The circumstances in which a final order may be varied or revoked are very rare. A material change of circumstances or a misstatement of facts, which may suffice in relation to an interim order, is not by itself sufficient for a final order. Finality is a consideration of central importance.
3. The special approach applicable to possession orders made in the absence of the defendant, reflected by analogy in CPR Rule 39.3(5), did not apply. Attendance at a hearing is a binary issue. Treating attendance as “ineffectual” because a party failed to raise a point would create uncertainty and undermine finality.
4. In any event, Mr Sangha could not satisfy the relevant considerations. The facts supporting the proposed misrepresentation defence were known before the possession hearing, and the application was made more than ten months later. His lack of representation at the hearing did not explain the failure to raise the point.
5. The Deputy District Judge’s exercise of discretion was within the generous ambit of reasonable disagreement. An appellate court will not intervene merely because it might have balanced the factors differently. The related proceedings and the risk of inconsistent decisions had been considered, but did not outweigh finality and delay. The circumstances were not exceptional.

• High Court (Chancery Division): appeal from the order of Deputy District Judge Sharp dated 6 April 2018 dismissed.