Summary judgment and possession hearings: “something in common”?

 

An appeal last week, before His Honour Judge Luba Q.C., focussed on CPR r. 55.8 and first hearings in residential possession claims.

 

The question was whether or not the District Judge had been right to grant possession on mandatory Ground 8 where the landlord had a regular money judgment for rent arrears far in excess of two months’ rent but the tenant disputed rent arrears and had applied to set the judgment aside.

 

The court was referred to Forcelux v Binne [2010] HLR 20 in which Mr Justice Warren stated inter alia that CPR r. 55.8(1) and (2) “have something in common with Part 24” – a tenant can produce his own evidence which, if it is sufficient to show that he has a case which is genuinely disputed on grounds which appear to be substantial, will result in allocation to track and case management directions.  Accordingly, His Honour Judge Luba Q.C. accepted the submission that where a claim was genuinely disputed on a ground which “appeared” to be substantial, the proper course for the judge to take was to give case management directions.  It was held that the District Judge erred in exercising his generous discretion by choosing to accept the requisite rent arrears on the basis of the judgment, notwithstanding the extant set aside application.  Further, the District Judge did not call the landlord to give evidence to prove the claim in circumstances where, upon investigation, there were inconsistencies as to the contractual rent and the alleged total rent arrears.

 

The appeal was allowed and the matter was remitted to the County Court for allocation and directions.

 

Whilst there are similarities between CPR Part 24 and r. 55.8(1) and (2), there are also significant differences: the threshold for defeating a possession claim at first strike is surely lower. It is not for the tenant to show that there is a genuine dispute on substantial grounds but to show the appearance of substantial grounds.  Further, whilst the tenant need not produce evidence at this first hearing, landlords are well advised to produce a comprehensive statement and be prepared to give oral evidence. 

 

Practitioners should note also the provisions of PD 55 para. 5.4: (1) if the maker of a witness statement does not attend the hearing; and (2) the other party disputes material evidence contained in his statement, the court will normally adjourn the hearing so that oral evidence can be given. This guidance is, just about, complimentary to the dicta of Mr Justice Warren in Forcelux at para. 37: “In neither case does the court try-out the issues on contested evidence with cross-examination to test each sides’ case. Indeed, a defendant may simply have no hint of a defence at all so that the court can deal with the matter in a way which can perfectly be properly described as summary and as not involving a trial.”  A landlord, whose evidence is disputed by a tenant at the first hearing, can be called to give oral evidence in the hope of proving his case and perhaps ironing out any issues which are unclear or poorly explained in his written statement.  The tenant cannot cross-examine yet the court can decide the claim.  The District Judge therefore retains a broad discretion in these claims (words such as “which appear to be” and “normally” are used) and landlords should be ready to deal, succinctly and clearly, with arguments raised by tenants at the summary stage.

 

George Woodhead represented the successful tenant at the permission to appeal and appeal hearings only.