Judges reject appeal over whether proceedings for possession were properly served by social landlord in relation to assured tenancy

Lady Justice Asplin, Lord Justice Newey and Lord Justice Baker heard the case brought by the appellant over whether possession proceedings were properly served for an assured tenancy in west London.

Lady Justice Asplin said the case in particular concerned whether an address mentioned in the tenancy agreement satisfied the requirements of CPR r 6.8(a) or, alternatively, CPR r 6.9 and raised questions about the way evidence was approached and whether the conduct of Octavia - since renamed Abri Group - was egregious.

In June 2020 the appellant visited his brother in Iraq. The judge said it was stated in correspondence by an individual named as next of kin that the appellant died in Iraq.

In February 2022, however, the appellant's daughter informed Octavia he was alive but had been taken ill in Iraq and was unable to travel.

Octavia inspected the property and met the appellant’s nephew, who claimed to be the sole occupant.

Octavia later served a notice to quit on the appellant at the property.

In January 2023, Octavia's solicitors wrote to the nephew, the appellant and his daughter to say possession would be sought.

The nephew instructed a firm of solicitors who asked Octavia for the basis for the notice to quit and for copies of documents.

Octavia's solicitors declined to provide clarification and said they could not give information about a third party's tenancy.

In April 2023 they told the nephew's lawyers that Octavia had issued proceedings against the appellant on the basis he had sub-let the property, or ceased to occupy it, or had died.

The court heard that in May 2023, the nephew's lawyers told Octavia's solicitors the firm now represented the appellant and requested copies of all notices, correspondence and court papers, but got no response.

The nephew then stated that the appellant was alive and there had been no sub-letting as the appellant’s daughter was still living at the property.

Deputy District Judge Le Bas then made a possession order as no one attended the possession hearing on behalf of the appellant or the nephew.

The nephew then applied to set aside the possession order as he had informed the court he was running late, but the hearing had proceeded in his absence. This was dismissed as totally without merit. 

Several other attempts to have the order set aside were also unsuccessful.

Asplin LJ noted there were four grounds of appeal. The first concerned whether the possession proceedings were properly served at the property. The second was that it was plainly wrong to decide that the proceedings had been validly served pursuant to CPR r 6.9 because CPR r 6.9(3) had been engaged and had not been complied with.

She said the third ground was that DDJ Thomas made findings of fact in an earlier hearing which were contrary to the uncontroverted evidence of the appellant and his solicitor, and HHJ Bloom was plainly wrong not to interfere with those findings of fact when the case had come before her.

The fourth ground was that the judges were plainly wrong and/or unjust in not setting aside the possession order in circumstances in which Octavia's conduct had been egregious.

Asplin LJ said: “In my judgment, Her Honour Judge Bloom and Deputy District Judge Thomas were correct to decide that the possession proceedings were properly served pursuant to CPR r 6.8(a).”

She said on the first ground the plain meaning of the phrase “[A]ny legal notice, or any other communication arising from the Agreement” was sufficiently wide to include the service of proceedings arising from the tenancy agreement, and it was difficult to see how a claim form seeking possession is not a “legal notice” arising from the agreement.

Asplin LJ said the possession proceedings were properly served and so ground 2 did not arise.

She dismissed the third ground on the basis that it involved findings of fact which the DDJ Thomas was entitled to make.

The fourth ground also failed over the claim “that Octavia's conduct was quite extraordinary”.

The appellant complained of Octavia's deliberate choice not to co-operate with his solicitors in May 2023 and its failure to provide a copy of the possession order, the failure to serve a notice of the application for eviction and the eviction notice.

“It also seems to me that the conduct relied upon has been expanded to include the treatment of [the appellant’s] alleged death,” the judge said. “In any event, in my judgment, this ground has no merit.”

Lady Justice Asplin said that DDJ Thomas had dealt with Octavia's failure to engage with the appellant’s lawyers, which he concluded was “regrettable" but did not affect his finding of fact that the appellant was aware of the possession hearing and order.

Lady Justice Asplin dismissed the appeal and Baker LJ and Newey LJ both agreed.

Mark Smulian