Loveridge v Mayor and Burgesses of the London Borough of Islington

In expedited possession proceedings against trespassers, the court must remain alert to whether the claim is genuinely disputed on substantial grounds under CPR 55.8(2). Where the dispute requires a fact-sensitive assessment of Convention rights, the judge must be in a position to consider the defendant’s evidence sufficiently to decide whether summary determination is fair. Ordinarily, advocates should draw relevant evidence to the court’s attention. However, unusual circumstances may require an adjournment or for the judge personally to read the relevant evidence, particularly where an unqualified advocate has not reviewed witness statements and seeks time to prepare. An appellate court should not decide whether material unseen by the lower court would have produced a different outcome. Procedural unfairness under CPR 52.21(3)(b) is distinct from an erroneous decision under CPR 52.21(3)(a).

Islington brought expedited possession proceedings under CPR Part 55 against persons occupying land at Dixon Clark Court without consent. The defendants included protesters relying on rights under Articles 8, 10 and 11 of the ECHR. At the possession hearing, the defendants were represented by an unqualified student advocate who had not read all the witness statements produced shortly before the hearing. The Deputy Master proceeded to determine the claim and ordered possession.

Mr Loveridge, subsequently named as a defendant, appealed with permission. The appeal alleged serious procedural irregularity, including failure to put the Deputy Master in a position to determine whether the possession claim was genuinely disputed on substantial grounds and whether the order was proportionate. Islington argued that the order should be upheld because it would or should have been made in any event. The central issue was whether the procedure below was sufficiently fair to permit summary determination.

1. The appeal was allowed and the possession order was set aside. The issue was not whether the Deputy Master’s decision was wrong on the material actually considered. It was whether a serious procedural irregularity made the order unjust under CPR 52.21(3)(b). The two limbs of CPR 52.21(3) must not be elided.

2. Under CPR 55.8(2), the court hearing an expedited possession claim must consider whether the claim is genuinely disputed on grounds which appear substantial. The existence of such grounds does not invariably prevent summary determination, because the claim may still be fairly decided at the hearing. However, the court must be alive to the issue and give appropriate case-management directions where summary determination would not be fair.

3. The Deputy Master’s failure to read the defendants’ witness statements was not, by itself, decisive. In inter partes proceedings the court is ordinarily entitled to rely on advocates to draw salient evidence to its attention. A party will generally find it difficult to challenge an order on appeal because an advocate failed to make a factual point which could have been made below.

4. The circumstances here were exceptional. The dispute required a fact-sensitive assessment of the balance between Islington’s possessory interests and the protesters’ rights under Articles 8, 10 and 11 ECHR. The defendants were represented by an unqualified advocate who had not read all the statements, could not fairly be criticised for that failure, and sought a limited adjournment to obtain further advice and prepare the case. The Deputy Master therefore had either to adjourn or to read the statements himself sufficiently to establish that the advocate had not missed material matters.

5. The appellate court could not properly decide whether the unseen evidence would have changed the result. That would convert a procedural-irregularity appeal into an assessment of whether the underlying order was substantively right. The claim was not reheard on appeal because there was insufficient time and Mr Loveridge should have the opportunity to consider adducing further evidence. Directions were made for an expedited rehearing.

• High Court (Chancery Division): On appeal from the order of Deputy Master Linwood dated 17 November 2020, the appeal was allowed and the possession order was set aside. The claim was directed to be reheard urgently.