Baqir Al-Chaalan & Anor v Abri Group Limited

A tenancy clause providing that any legal notice or other communication arising from the agreement is validly served at the premises can give an address for service of proceedings within CPR r 6.8(a). Express reference to proceedings is unnecessary where the clause, construed in its contractual context, covers a possession claim arising from the tenancy.

On an application to set aside a possession order made in a tenant’s absence, CPR r 39.3(5) applies by analogy unless an unusual and highly compelling factor warrants a different course. Such applications will normally be determined on written evidence. The court may draw reasonable inferences from evidential silence and reject evidence that is inconsistent or inherently improbable. An appellate court should intervene only where the first-instance judge went wrong in principle.

The tenant appealed against Her Honour Judge Bloom’s dismissal of his appeal from Deputy District Judge Thomas. The Deputy District Judge had refused to set aside a possession order made after a hearing which the tenant did not attend.

The landlord had served the possession claim at the demised flat while the tenant was in Iraq. The tenant later contended that service was invalid, that the judge had impermissibly inferred his knowledge of the hearing from the written evidence, and that the landlord’s conduct required the possession order to be set aside.

The central questions were whether the tenancy agreement supplied an address for service under CPR r 6.8(a), and whether the judges below erred in applying the analogous CPR r 39.3(5) requirements.

1. Appeal dismissed unanimously. Lady Justice Asplin gave the judgment, with which Lord Justice Baker and Lord Justice Newey agreed.

2. The possession claim was validly served under CPR r 6.8(a). Clause 1(5)(ii) of the tenancy agreement provided that any legal notice or other communication arising from the agreement was validly served if delivered or posted to the premises. Construed in context, those words included a possession claim. A claim form was a legal notice arising from the landlord and tenant relationship created by the agreement. The mirror provision in clause 1(5)(i), read with Landlord and Tenant Act 1987, reinforced that construction. CPR r 6.8(b) and CPR r 6.11 were permissive provisions and did not require an express contractual reference to proceedings.

3. The Court therefore did not determine CPR r 6.9(2) or (3), although it expressed serious doubts about the approaches taken below to those provisions. The contractual cases relied on by the tenant turned on materially different wording. The broad approach to a tenancy notice clause in Khan v D’Aubigny [2025] EWCA Civ 11 was consistent with the conclusion reached.

4. Under CPR r 3.1(2)(m), the requirements of CPR r 39.3(5) applied by analogy to the set-aside application: promptness, a good reason for non-attendance, and reasonable prospects of success. Following Hackney LBC v Findlay [2011] EWCA Civ 8 and Bank of Scotland Plc v Pereira (Practice Note) [2011] EWCA Civ 241, oral evidence and cross-examination are exceptional. A judge may decide the application on written evidence, including by drawing inferences from gaps in the evidence and rejecting an inherently improbable suggestion.

5. The Deputy District Judge was entitled to infer that the tenant knew of the hearing. His statement did not deny such knowledge; his nephew knew the hearing date and attended late; and both had instructed the same solicitors. Her Honour Judge Bloom correctly applied the restrained appellate approach and was entitled not to interfere.

6. The landlord’s failure to engage with the tenant’s solicitors was regrettable, but it had been considered below and did not displace the findings on knowledge or delay. The remaining matters, whether separately or cumulatively, were not egregious or an unusual and highly compelling factor justifying the setting aside of the possession order.

• Court of Appeal (Civil Division): Dismissed the tenant’s appeal from Her Honour Judge Bloom.
• County Court at Central London: Her Honour Judge Bloom dismissed the tenant’s appeal against Deputy District Judge Thomas’s refusal to set aside the possession order.
• County Court at Central London: Deputy District Judge Thomas refused to set aside the possession order following the tenant’s non-attendance at the possession hearing.