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A summary right to possession - Jon Holbrook

The High Court dismissed a tenant's appeal against a possession order made on a summary basis. By his pleaded Defence the tenant raised a number of public law and human rights/proportionality arguments which a Recorder dismissed on a summary basis without the need for a trial with oral evidence. Eady J upheld the possession order and the summary process which the Recorder had used.
This is one of the first possession claim appeals in the wake of the Supreme Court decisions in Pinnock and Powell. As such it is welcome news for social landlords who are keen to avoid the problem that Lord Hope described as 'the risk of prolonged and expensive litigation, which would divert funds from the uses to which they should be put to promote social housing in the area' (Powell §31).

Mr Holmes, a man in his early fifties with a history of mental health problems which caused him to have a priority need for accommodation, was a non-secure tenant who Westminster were housing under homelessness duties. Westminster revived a possession claim after Holmes allegedly assaulted two housing officers as they sought to give him a letter about alternative accommodation. After the court gave directions paving the way for a 2-day multi-track trial Westminster applied for possession on a summary basis namely on the basis of written evidence only so as to avoid the delay and expense associated with preparing for a 2-day multi-track trial.

Key points

(1) Possession procedure: CPR 55 intends that possession claims will normally be determined without the need for a trial namely on a summary basis where the judge is only expected to read the written evidence submitted (§9 citing CPR 55.8).

(2) Proportionality & exceptionality: the threshold for a tenant raising an arguable case on proportionality (ie an article 8 defence) is a high one which will 'succeed in only a small proportion of cases' (§27 citing Powell §35). The Supreme Court in Powell in a 'statement of law comes close, although it has been disavowed, to espousing a test of exceptionality.' (§28 citing Powell §37)

(3) Disputed facts: what mattered in this case was 'whether or not the Council had reasonable grounds to believe that he (Holmes) had behaved in the way described by its officers. In order to base a possession order on a tenant's conduct, it is not necessary to go through a trial process to establish criminal guilt, or even to prove a civil wrong on a balance of probabilities. Conduct may be legitimately regarded as unacceptable, on the part of a tenant, without necessarily passing either of those tests.' (§37)

(4) Breach of policy: in Barber v Croydon LBC [2010] HLR 26 Patten LJ observed that 'the Council behaved ... as though its policies on vulnerable people had no application and the decision reached had been' perverse on the facts (§15 citing Barber §45). But in the instant case Westminster had had regard to its own Anti-Social Behaviour Policy (§45) and the Recorder was entitled to conclude that he was 'unable to identify any cogent evidence to show that there has been any breach of policies' (§46).

(5) Disability discrimination: the Recorder 'rightly noted that there was a need for cogent evidence of breach of policies or duties under statute before such a defence can carry weight' (§47) and he was entitled to conclude that 'there was no cogent evidence to demonstrate a breach of statutory duty' (§49).

(6) Conclusion: the Recorder was entitled to conclude that he 'could reach a fair outcome without the need for oral evidence' and his approach was 'in accordance with the public policy requirements, under CPR Part 55, to the effect that there should be a summary determination wherever possible.' (§34) The 'Recorder was fully entitled to come to the conclusion ... that there was no need to reject what has become the standard summary procedure for possession cases and to adopt, contrary to normal practice, a trial process involving a determination of whether or not Mr Holmes had committed either a criminal or civil assault.' (§40, 51)

Jon Holbrook, instructed by Devonshires, appeared for Westminster City Council in the county court and High Court.