Defending Possession Proceedings Post Possession Order

Speaker: Ranjit Bains
Chambers: The Community Law Partnership

Defending Possession Proceedings Post Possession Order
Ranjit Bains
Solicitor HCA
The Community Law Partnership

This seminar will cover

Options
• Set-aside
• Appeal
• Extended discretion
[Part 20 Claims / Oppression]
• Objective: To have a seat at the table

SET-ASIDE
• r39.3 CPR: Failure to Attend Trial
(3) Where a party does not attend and the court […] makes an order against him, the party who failed to attend may apply for the […] order to be set aside.
(4) An application under […] paragraph (3) must be supported by evidence.
(5) Where an application is made […] by a party who failed to attend the trial, the court may grant the application only if the applicant –
(a) acted promptly when he found out that the court had exercised its power to […]make an order against him;
(b) had a good reason for not attending the trial; and
(c) has a reasonable prospect of success at the trial.

PROBLEMS WITH THE ABOVE
LAA FUNDING
• Applications 10 working days
• Amendments 6 working days
• Appeals 20 working days
• Case plans 32 working days
• Target: 20 working days for 80% applications
Urgent app  expedite  complain  letter before claim
APPEALS
• Need permission –r52.3: original hearing/upstairs?
• Deadline: 21 days/other such time – r52.12
• Need to ask for a stay
• Real prospect of success/other compelling reason (r52.5).
– important point of principle/practice (or other compelling reason for CA to hear) (r52.7)
• Important to get through the door
• Wrong; or unjust because of a serious procedural or other irregularity in the proceedings below (r52.21)
• Ladd v Marshall
• Generally review not re-hearing

FIRST AID
• Make the facts better
• R v Gargett
• Kerr v Department for Social Development
• Best quality expert evidence (£1620)
• Consider scope and costs condition on certificate
– Enhancement
– Counsel?
– Court fees £255; Counterclaim ?£455

EXTENDED DISCRETION (s85 HA 1985)
• Discretionary grounds
• (1) Adjourn proceedings
• (2) at any time before the execution of the order, the court may—
– (a)stay or suspend the execution of the order, or
– (b)postpone the date of possession
• (3) shall impose conditions with respect to the payment by the tenant of arrears of rent (if any) and rent unless it considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable, and
• (b)may impose such other conditions as it thinks fit.
Conditions on who?
• (4) may discharge or rescind the order for possession if it thinks it appropriate
• See also s9 HA 1988

IT’S NOT OVER UNTIL IT’S OVER
• Midland Heart v Burns
• BCC v Stephenson
• Mr R
• Mr M
• Midland Heart v Grier

BEST PRACTICE
• Complain
• Issue Letter Before Claim

SO, WHICH ONE?
• It depends
• Do all three? Let the Judge decide?
• Stay some processes pending determination of others
• Act quickly: file further material later
• Keep happy the:
– Client
– Court
– LAA

You can contact Ranjit Bains HCA at the Community Law Partnership on
office@communitylawpartnership.co.uk

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