Defended possession claims and directions at first hearings

Must a defended possession claim at first hearing be adjourned with directions?

On a recent appeal, His Honour Judge Jan Luba QC has clarified expectations on the court rules for first possession hearings that are defended.

The court rules (CPR 55.8(3)) state that “Where the claim is genuinely disputed on grounds which appear to be substantial, case management directions given under paragraph (1)(b) will include the allocation of the claim to a track or directions to enable it to be allocated.”

In the case of Global 100 Ltd v Kyselakova & Ors, despite a defendant (who was a property guardian) having raised a defence on three grounds, a county court judge summarily dealt with the claim and made a possession order. The defendant appealed. On appeal the order was overturned and sent back for directions to be made and for the defended claim to be allowed to run its course. 

This was a property guardian case where a defence had already been served and a 14-page skeleton argument in reply from a QC had been prepared by the claimant landlord. Three points were raised by the occupier, namely;

• Whether the right body had brought the claim as landlord – the county court judge had found the documentation on this to be clear and on appeal HHJ Luba agreed it did not “appear to be substantial”
• They were a tenant, not a licensee – this was found to “appear to be substantial”
• Service issues – not substantial

HHJ Luba QC noted that;

“It seems to me not unimportant to note that in this claim, as it stood before this judge at the short first hearing before her (initially fixed for 15 minutes):

(1) the defendant was represented by specialist solicitors who had a contract with the Legal Aid Agency to conduct housing work, primarily in possession claims;

(2) the defendant had legal aid funding to defend the claim;

(3) a fully pleaded defence had been filed;

(4) that defence had been settled by specialist counsel from long-established chambers;

(5) the points taken had been considered sufficient on the claimant’s part to cause them to engage the services of leading counsel from whom a 14-page skeleton argument had been received;

(6) the defendant had been in residential occupation of the property for many months (if not a year or more) rather than just a few days or weeks;

(7) the argument took over an hour – with no waste of time; and

(8) the claim arose in the relatively novel area of emerging jurisprudence concerned with property guardianship.

One might have thought, having regard to the relatively low threshold, that unless the points pleaded by the defence were unarguable, this was the sort of case very unlikely to have been suitable for determination on a summary basis.”

Points to note

Note the reference to the threshold in the court rules for whether there is a defence that is “genuinely disputed on grounds which appear to be substantial“ as being “relatively low”. The judge is directed to consider whether the grounds appear to be substantial, not whether they are in fact substantial.

This decision does not mean that a defended possession claim will necessarily fail of course. It may be that at trial the defence is rejected and a possession order is still made. Directions may also not be complied with allowing orders debarring the defendant from defending to be made along the way. It does however provide a helpful reminder of what landlords can and should expect at a first possession hearing when a claim is defended.

If a landlord knows the claim is likely to be defended or a defence has already been served, then go to the first hearing with draft directions to prepare the case for trial rather than expecting it to be dealt with summarily at that first hearing.

This is a county court decision so is not binding on other courts. However, as HHJ Luba QC is a very experienced housing circuit judge and author, this case is more likely to be regularly referred to.

The case usefully reminds landlords and their lawyers that getting a possession order at the first hearing when the claim is defended should, in all but the most obvious cases (e.g. where the defence is clearly unfounded) be unlikely. In a defended claim, landlords should expect to come away with directions to take the matter through to trial. Otherwise, expect the risk of an appeal, which will simply increase costs and the time it takes to recover possession.

Directions can of course be carefully worded and staged so that if a defendant does not comply with them after the first hearing, which often happens, the matter can come back for a shorter disposal hearing rather than having to proceed through to full trial. 

For more information

Please contact Rebecca Sembuuze.

For property guardian issues, please contact Helen Tucker.

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