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The Court of Appeal provides helpful guidance to second possession claims and set aside applications

20.03.2019

Introduction

The Court of Appeal has today handed down judgment in the case of Salix Homes v Graciano Mantato [2019] EWCA Civ 445. Salix had appealed against a deputy district judge's decision setting aside both a (2017) possession order and (executed) warrant of possession and striking out the possession claim.

He did so on the basis that Salix should rather have proceeded under a 2008 possession order obtained by its predecessors in title, Salford City Council, for the same reasons (rent arrears). He held that the doctrine of res judicata/merger barred the fresh claim, which was thereby an abuse of process.

Findings

Salix's appeal was allowed and the Court of Appeal found that:

1. The facts entitling Salix to possession in the 2017 claim were not the same as allowed the Council to obtain the 2008 possession order: paragraph 32.

2. It was not correct to detach a claim for possession from a claim for rent (the respondent accepting the latter was a different cause of action) when considering whether the cause of action in 2017 was the same as that in 2008: paragraph 34.

3. It was sufficient that new arrears had accrued post-2008 possession order, and the fact that Salix could have sought to rely on the 2008 order (including by seeking permission to issue a warrant after 6 years) was of no relevance to this analysis: paragraph 34.

4. Ground 1 of Schedule 2 to the Housing Act 1985 (a necessary ingredient of the 2008 cause of action) was different to Grounds 10 and 11 of Schedule 2 to the Housing Act 1988 (a necessary ingredient of the 2017 cause of action): paragraph 35.

5. The Deputy District Judge had, in any event, failed to properly consider the respondent's delay in submitting his application (some six months after his eviction). Whilst the application was properly considered under CPR r.3.1(2)(m) and (7), in line with Hackney LBC v Findlay [2011] EWCA Civ 8, [2011] HLR 15 he should have applied the requirements of CPR r. 39.3(5): paragraph 43.

44. It follows that, in deciding whether to allow Mr Mantato's application to set aside the June 2017 possession order, the Deputy District Judge ought to have paid close attention, by way of analogy, to the three conditions in CPR 39.3(5). He did not do so.

What the case tells us

It is not uncommon for social landlords to issue fresh proceedings for possession based on rent arrears rather than seek to rely on an older order for possession made for the same reason.

That of course provides the tenant with an opportunity to deal with any problems during the pre-action protocol process, defend proceedings (say on reasonableness grounds or by way of (disrepair) set-off) and seek in any event (assuming a mandatory ground is not used) a suspended order on terms. The only real negative for the tenant is a second set of court costs, though seeking to enforce the first order by way of a CPR r. 83.2 application for permission to issue a warrant of possession when six years or more has elapsed since the date of order will necessarily have its own costs.

The Salix judgment confirms that such "second claims" are possible and not otherwise barred, though it would be sensible to deal with the first order when making the second one (e.g. providing for its variation and discharge).

Andy Lane led Kirsty Varley of Croftons Solicitors in this appeal on behalf of Salix Homes.