Important Court of Appeal decision on housing possession cases

Friday 3 December 2021

Nick Bano, of the Garden Court Chambers Housing Team, acted for the legally aided occupier throughout the proceedings, instructed by Simon Mullings of Edwards Duthie Shamash solicitors.

Mark Wonnacott QC led on the standing and estoppel points in the Court of Appeal.

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On Friday 3rd December 2021 the Court of Appeal handed down judgment in Global 100 v Laleva [2021] EWCA Civ 1835.  The judgment establishes the correct approach to CPR 55.8(2) – the threshold for making a summary possession order in a defended claim – and also concerns interesting points of land law concerning standing to bring a claim and estoppel.

Ms Laleva was one of a number of ‘property guardians’ living at a disused health centre in West London.  The land was owned by the NHS, which had granted a licence to a company called Global Guardians Management Ltd (Global). Global, through its sister company Global 100, had let Ms Laleva and a number of other property guardians occupy the building.  When the NHS needed the building back Global 100 issued possession proceedings, and the guardians defended the claim against their home.

At the first hearing, DJ Parker made a summary order for possession.  She decided that none of the defences that Ms Laleva had pleaded (including a lease/licence dispute) appeared to be substantial, so it should not proceed to a trial.

Ms Laleva appealed, and HHJ Luba QC allowed her appeal in part.  He suggested that CPR 55.8(2) imposed an ‘arguability’ threshold, and held that DJ Parker should not have made a summary possession order because she had been wrong to decide that the lease/licence dispute did not appear to be substantial.  The matter needed to go to a full trial.  HHJ Luba did not decide a point raised by Global, which concerned whether Ms Laleva was estopped from disputing the right of a sub-licensee (rather than the freeholder or a lessee) to bring a claim for possession in its own name.

Global appealed, Ms Laleva cross-appealed, and the Court of Appeal agreed to expedite the case.  By the time of the hearing there was an argument that the appeal had become academic, because the NHS had obtained its own possession order against Ms Laleva in the meantime.  Nevertheless, because of the importance of the issues, the Court of Appeal agreed to hear both the appeal and the cross-appeal.

Lewison LJ’s judgment provides useful clarity on the threshold for summarily deciding defended possession claims.  Disagreeing with HHJ Luba, he explained that CPR 55.8(2) is the same threshold as summary judgment: ‘realistic prospect of success’.  Whether a case meets that threshold is not a discretionary case management decision (which would be more difficult to appeal), but a matter of evaluating the merits of a potential defence.

That is not to say that the summary judgment test is appropriate in every possession hearing.  The Court of Appeal was clear that this is the correct approach where a defence has been filed, but recognised that there will be situations where it would be procedurally unfair to prevent tenants from even pleading a defence.

The Court of Appeal overturned HHJ Luba, holding that the guardians did not have a realistic prospect of succeeding on the lease/licence dispute.

On Ms Laleva’s cross-appeal, in which she had argued that a licensee does not have standing to bring a claim for possession and that Manchester Airport v Dutton had been wrongly decided, the Court of Appeal declined to decide the point (just as it had 11 years earlier in Mayor of London v Hall, and 12 years before that in Countryside Residential v T (2008) 81 P&CR 2).  This was because the Court of Appeal accepted that Ms Laleva was estopped from taking the point.

The Court of Appeal’s judgment, in this case, will inform district judges’ decisions in the hundreds of defended possession claims that come before the County Court each week, as well as any appeals from those decisions.

Download the judgment here.

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