Neutral Citation Number: [2008] EWCA Civ 1259
Case No: B5/2008/0794
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WANDSWORTH COUNTY COURT
HER HONOUR JUDGE HALLON
6WT10782
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 14/11/2008
Before :

LORD JUSTICE TUCKEY
LORD JUSTICE SEDLEY
and
LORD JUSTICE LAWRENCE COLLINS
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Between :

	LONDON BOROUGH OF WANDSWORTH	Appellant/
Claimant	
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	DAVID WHIBLEY	Respondent/Defendant	

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Mr Jon Holbrook (instructed by Messrs Ashfords) for the Appellant
  Mr Robert Latham and Mr Jim Shepherd (instructed by Messrs Flack & Co) for the Respondent

Hearing date: Tuesday 28 October 2008 
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Judgment

Lord Justice Sedley : 

1.	Permission to bring this second appeal was given by Mummery LJ, who was satisfied that it raised a question of procedure or practice deserving this court’s attention. The appellant, the London Borough of Wandsworth, was the claimant below. 
2.	The defendant to these proceedings has since 1996 been a tenant of the claimant under a secure tenancy within the provisions of the Housing Act 1985. In 2005 he was convicted of cultivating cannabis in his flat. In January 2006 the local authority initiated possession proceedings under s.83. The grounds given in the notice were arrears of £615.12 and nuisance by growing cannabis. While these proceedings were pending the defendant was again convicted of cultivating cannabis. On both occasions he admitted having a drug problem and was given community sentences directed to his rehabilitation. The particulars of claim, once amended, relied both on these offences and on drug abuse and an episode of noise and loud music. The defence admitted the offences and a drug abuse problem but asserted that the defendant was trying to control it and was seeking help. 
3.	The claim for possession was tried before District Judge Tilbury in November 2006. He found the grounds made out and held it reasonable to make a postponed possession order, with conditions of postponement relating both to payment of rent and arrears and to observing the terms of the tenancy. The order as drawn, however, referred only to the rent; it was not amended until the crucial hearing before District Judge Gittens on 19 September 2007. 
4.	S.85(2) of the Housing Act 1985 permits the court making the possession order to stay or suspend its execution or to postpone the date of possession, in  either case for such period or periods as the court thinks fit, upon mandatory conditions as to rent arrears and discretionary conditions as to any other matters. If the conditions are complied with, subsection (4) allows the order to be discharged or rescinded; but, on present authority, a single non-compliance puts this step beyond the court’s reach. This is why a postponed possession order has come to be used as a less problematical alternative to a suspended order. The latter, by terminating the tenancy but withholding possession in many cases indefinitely,  leaves both landlord and tenant in a limbo in which the tenant has been aptly characterised as a tolerated trespasser, with no affirmative rights but a status of irremovability. This unsatisfactory situation is avoided by a postponed order, which preserves the tenancy pending discharge of the order, further postponement or the fixing of a date for possession. 
5.	No issue is or could be taken with the making in the present case of a postponed order. What followed, in brief, was this. Within a few months complaints were received from neighbours of anti-social conduct in the flat and common parts, albeit mostly not on the part of the defendant himself. The council’s solicitors wrote to the defendant on 18 June 2007 asserting that he had breached the conditions of the postponed possession order and asking him to notify them within 7 days if he disputed their right to apply for a date to be fixed for possession. The letter set out in summary a recent history of visitors to the defendant’s flat repeatedly causing a very serious nuisance; but the order itself, as drawn, stipulated only a condition as to payment of rent and arrears. The defendant himself did not respond as asked, but well within 7 days his solicitors had written to say they were taking instructions to enable them to decide whether to grant the defendant emergency public funding, following which they would need to take full instructions from him. This was followed on 25 June by a letter conveying the response that the neighbours’ allegations were false, a response which turned out not to be the eventual defence. 
6.	On 3 July 2007 the local authority applied to the county court to fix a date for possession, asking that the application be determined without a hearing but noting that the defendant opposed it. The application referred to “a number of serious further incidents of anti-social behaviour” in breach of the terms of tenancy. It enclosed the witness statement of Lisa Pennett, a housing officer who had collated the complaints but had no personal knowledge of them. It did not enclose the defendant’s solicitor’s reply; but since Ms Pennett’s statement had not previously been served, the defendant had in any event had no opportunity to respond to it. The application was, however, duly served on the defendant. 
7.	The defendant’s solicitors wrote promptly to the court to ask for a hearing of the council’s application. The papers were considered by way of box work by a district judge, who noted that the order as drawn related only to arrears. Although his order was not communicated to the parties (possibly because it was regarded as simply administrative), he directed a 30-minute hearing which, if the making of a final order was opposed, was to be a directions hearing. This was the hearing which came before District Judge Gittens on 19 September 2007. 
8.	The day before the hearing Flack and Co, the defendant’s solicitors, served a cross-application returnable at the same hearing. It asked for an adjournment of the council’s application with directions for a full hearing, and (contingently) for a further postponement of possession or suspension of the warrant. It was supported by a witness statement of Jane Pritchard, the defendant’s solicitor at Flack and Co, which for the first time indicated that the defence was “cuckooing”: that is to say, that the defendant had been dispossessed by undesirables, who were responsible for the nuisance. It also took issue with the reliability of one of the neighbours, Mrs Hutson, on whose evidence the council was relying. Ms Pritchard said, however, that because of illness the defendant had been unable to give her full instructions. 
9.	Also on the eve of the hearing, the local authority wrote to say that they would be relying on rent arrears as the basis of their application. These amounted to no more than £62 and had accrued because an increase of £3.34 per month had not been added by the defendant to his payments. When the cross-applications came before the district judge, however, the council relied on the nuisance claim provided it could be determined without live evidence. This the district judge declined to do. Instead he set directions for a hearing on the first open day after 6 weeks with a time allocation of a day. Five weeks later the court set 23 January 2008 for the hearing of the cross-applications. 
10.	The district judge had also given the claimant permission to appeal his directions. The appeal was fixed for 10 January 2008, but for want of time HH Judge Behar adjourned it to the date set for hearing of the substantive applications, 23 January. On that date, however, rather than go ahead with the application to fix a date for possession, the council used the allocated day (and part of the next day) before HH Judge Hallon to pursue its appeal against the district judge’s directions. Its object, then and now, has been to secure a ruling that, save in quite exceptional cases of which this was not one, county courts should give summary judgment without hearing evidence on applications to set a date on a postponed possession order. The substantive application to fix a date was consequently stood over to 25 February, but that date has been vacated to allow this appeal to be pursued. 
11.	There is nothing in the CPR or in the remaining County Court Rules which answers this issue. In addition to the overriding objective, Mr Holbrook, for the claimant, has relied principally on 55 CPR PD 10, which according to its caption sets out the procedure ordinarily to be followed on an application to fix a date for possession. It is apparent from its text, however, that it is concerned - in terms at least – with cases of repeated non-payment of rent and arrears. It provides as follows: 
SECTION IV – ORDERS FIXING A DATE FOR POSSESSION
10.1 This paragraph applies where the court has made an order postponing the date for possession under section 85(2)(b) of the Housing Act 1985 (secure tenancies) or under section 9(2)(b) of the Housing Act 1988 (assured tenancies).
10.2 If the defendant fails to comply with any of the terms of the order which relate to payment, the claimant, after following the procedure set out in paragraph 10.3, may apply for an order fixing the date upon which the defendant has to give up possession of the property. Unless the court further postpones the date for possession, the defendant will be required to give up possession on that date.
10.3 At least 14 days and not more than 3 months before applying for an order under paragraph 10.2, the claimant must give written notice to the defendant in accordance with paragraph 10.4.
10.4 The notice referred to in paragraph 10.3 must –
(1) state that the claimant intends to apply for an order fixing the date upon which the defendant is to give up possession of the property;
(2) record the current arrears and state how the defendant has failed to comply with the order referred to in paragraph 10.1 (by reference to a statement of the rent account enclosed with the notice);
(3) request that the defendant reply to the claimant within 7 days, agreeing or disputing the stated arrears; and
(4) inform the defendant of his right to apply to the court –
(a) for a further postponement of the date for possession; or
(b) to stay or suspend enforcement.
10.5 In his reply to the notice, the defendant must –
(1) where he disputes the stated arrears, provide details of payments or credits made;
(2) where he agrees the stated arrears, explain why payments have not been made.
10.6 An application for an order under paragraph 10.2 must be made by filing an application notice in accordance with Part 23. The application notice must state whether or not there is any outstanding claim by the defendant for housing benefit.
10.7 The claimant must file the following documents with the application notice –
(1) a copy of the notice referred to in paragraph 10.3;
(2) a copy of the defendant’s reply, if any, to the notice and any relevant subsequent correspondence between the claimant and the defendant;
(3) a statement of the rent account showing –
(a) the arrears that have accrued since the first failure to pay in accordance with the order referred to in paragraph 10.2; or
(b) the arrears that have accrued during the period of two years immediately preceding the date of the application notice, where the first such failure to pay occurs more than two years before that date.
10.8 Rules 23.2.3, 23.2.4 and 23.2.5 (dealing with applications without a hearing), 23.7 (service of a copy of an application notice), and 23.10 (right to set aside or vary an order made without service of the application notice) do not apply to an application under this section.
10.9 On being filed, the application will be referred to the District Judge who –
(1) will normally determine the application without a hearing by fixing the date for possession as the next working day; but
(2) if he considers that a hearing is necessary –
(a) will fix a date for the application to be heard; and
(b) direct service of the application notice and supporting evidence on the defendant.
10.10 The court does not have jurisdiction to review a decision that it was reasonable to make an order for possession.

12.	There is no great difficulty in adapting these provisions to nuisance cases such as the present one. But the practice direction cannot simply be read across from the one situation to the other. Arrears are ordinarily a matter of record, and any dispute as to the accuracy of the lessor’s records will commonly depend on the defendant’s own records. By the time the application to fix a date for possession comes before a district judge it should be apparent whether there is a triable dispute, and §10.9 makes it clear that it is only where there is such a dispute that the district judge should direct a hearing. In that event the application must be adjourned to a suitable date, since the assumption is that at this stage the defendant is not present. In a nuisance case there is obvious good sense in following a similar procedure: if, on being notified of the impending application and invited to respond, the defendant remains silent or puts in a plainly spurious or irrelevant response, an order may properly be made summarily. But if, as is more probable in nuisance cases, an issue is raised which is capable of affecting the court’s decision, justice will require the defendant to be given an opportunity to put his or her case. The court will of course be astute not to let merely factitious or obstructive responses impede a summary disposal; but, inconvenient though it will be for the lessor and for a time nightmarish for the neighbours, it is not permissible for a tenant who has a possible tenable answer to lose his or her home unheard. How the evidence is to be taken is governed by principles of law on which it is not necessary to embark here, but which permit the use of hearsay and enable most such hearings to be expeditiously conducted. Everything depends, both in arrears cases and in nuisance cases, on a judicial appraisal of how the issues can be fairly and economically determined. 
13.	The case as it reached District Judge Gittens was problematical, and to that extent out of the ordinary, for reasons which will now be apparent. The full terms of his order were as follows: 
On Wednesday, 19th September 2007

District Judge Gittens sitting at 76-78 Upper Richmond Road Putney London heard Counsel for the Claimant. and Counsel for the Defendant and 
ordered that: 
1. The order of District Judge Tilbury of 2 November 2006 be amended under the slip rule by adding to the end of “paragraph 4 ‘and complies with the terms of his tenancy agreement’ and” by deleting the first sentence under the words ‘And it is ordered that’
2. Disclosure of documents shall be dealt with as follows:
a) The parties shall give to each other standard disclosure of documents by serving copies together with a disclosure statement by 4pm on Wednesday, 10th October 2007: in the case of the Claimant this includes the Defendant's housing file, and any separate anti-social behaviour and rent arrears files.
b) Any request to inspect the original of a copy document shall be made by 4pm on Wednesday, 17th October 2007 and any such request shall be complied with within fourteen days of receipt of the request.

3. Each party shall serve on every other party the witness statements of all witnesses of fact on whom the party intends to rely by 4pm on Wednesday, 31st October 2007.
4. The application be adjourned until the first available date after 6 weeks, to be listed before the Circuit Judge with a time estimate of one day: the parties' solicitors to lodge any dates of non-availability within 7 days.
5. Costs in the case.
6. Permission to Claimants to appeal, if so advised.

19th September 2007
6WT10782
						 District Judge Gittens

14.	The district judge explained his decision in a short judgment. 
 “This application of 3 July 2007 was fixed for a 30 minute hearing, and the defendant says that there is not the time to deal with it. Mr Holbrook says that there would be time if the two statements that had been filed were considered. One statement is from the claimant’s Housing Officer, Lisa Pennet, and the other is from the defendant’s solicitor.
On 2 November 2007 District Judge Tilbury made a possession order that enabled a date for possession to be given in the event of breach. Normally such an application would be dealt with on the papers but in this case the claimant relies on anti-social behaviour, since the order was made which it says enable a date to be fixed. I take the view that the court has discretion to consider whether or not it is right to make an order and to examine the circumstances. The defendant denies any substantial rent arrears (although Mr Holbrook says that he is not relying upon this alleged breach today) and he also denies he has been guilty of anti-social behaviour that is capable of allowing a date to be fixed.
The claimant’s statement is missing from the file, but I am told that there is compelling evidence and that the defendant’s evidence refers to anti-social behaviour that justifies the making of an order. There is also a statement from the defendant’s solicitor which refers to activity in the house. Mr Shepherd says the possession of the property has been taken by trespassers who have caused the anti-social behaviour. He does dispute the allegations.
In dealing with somebody’s home and a person who would be vulnerable if he did not have it it would be a significant step to deprive a man of his home unless it is justified. The defendant should have the right to test the claims made and therefore I adjourn today’s application with directions.”

15.	Since this is in law an appeal against the district judge’s decision, the commendably full and careful judgment of HH Judge Hallon need not be set out here.  Her conclusion was this:
 “47. It seems to me that the facts in this situation are not straightforward and that the law relating to the facts, if those facts are found as the defendant alleges them to be, is not straightforward. So that then raises the question: could the facts and the law really be decided on the statements as they stood and were available (save that they were missing from the court file) on 19 September 2007?”
48. It seems to me that a decision made on those statements could not be made judicially because it would be impossible to weigh up the relative reliability of what was being said. The decision could only be made on the basis that the defendant had caused nuisance and annoyance before (that being the basis upon which a possession order was made) and that to use a colloquial expression, “There’s no smoke without a fire”. That is not a judicial approach and plainly would be the wrong approach.
49. In those circumstances I am unable to say that District Judge Gittens was wrong in law, or that he exercised his jurisdiction on no rational basis when he directed a full hearing as he did. In those circumstances therefore the appeal is dismissed.
16.	The grounds of appeal to this court are that there was in truth no rational basis for the district judge’s order and that the circuit judge misunderstood the nature of an application to fix a date. It would be enough to say that, for reasons clearly explained by Judge Hallon, District Judge Gittens’ order lay within his powers and is irrational neither in content nor in outcome. So far as it may matter on a second appeal, I can see no evidence that Judge Hallon misunderstood the procedure or the issue with which she was dealing. But it is right that we should address the local authority’s real reason for coming to this court, about which Mr Holbrook has been candid: to seek to establish a general rule that applications to fix a date for possession following the making and breach of a postponed possession order should be dealt with summarily. By ‘summarily’ Mr Holbrook meant without considering more evidence in the present case than has been submitted in writing by the lessor. 
17.	So stated, there is no problem with the proposition: it presupposes an established breach. But Mr Holbrook’s reliance for this purpose on Rix LJ’s dictum in Southwark LBC v St Brice [2002] 1 WLR 1537, §40, that a lessor should not have to prove again what it has proved already, is misplaced. The local authority in a case like the present has proved arrears and nuisance and has obtained a possession order postponed on specified conditions; what it has not yet proved is a breach of one or more of those conditions, and without such proof it cannot ask the court to fix a date for possession. That is the problem which faced the district judge here, and he was manifestly in no position to resolve it summarily in the claimant’s favour. An adjournment was unavoidable. Indeed the district judge may have been understating the position when he said  “…. the court has a discretion to consider whether or not it is right to make an order and to examine the circumstances”. A court has an obligation to do so. 
18.	In many cases the discharge of that obligation will lead to summary judgment where no triable answer has been advanced. But this was not such a case, and the consequent order for adjournment and hearing was justified. The terms of the order, although debatable, are not separately challenged. They might well have been more robust by, for example, not requiring full mutual disclosure and providing instead for a short clear statement of each side’s position on the basis of which the court, on the adjourned hearing, could rapidly see and determine any triable issue or issues. As has been seen, Judge Hallon noted certain possible issues in the present case. We are not called upon to determine their viability. What will not suffice to procure a hearing is an unsupported assertion that the tenant has an answer. Nor will a bare denial amount to an answer: save in exceptional cases the court will expect details, since a tenant who has already, by definition, breached the terms of the agreement has to have a cogent answer once there is prima facie evidence of repetition. 
19.	While, therefore, I would accept (as Mr Latham for the defendant was prepared to accept) much of Mr Holbrook’s case in favour of summary disposal of applications to fix a date wherever justice permits, I would dismiss this appeal.

Lord Justice Lawrence Collins:
20.	I agree.

Lord Justice Tuckey:
21.	I also agree.