Forcelux and Mr Binnie were the landlord and tenant of a flat in Lincoln. Under the lease, the tenant was obliged to pay ground rent and other charges. The lease contained a forfeiture provision in the event of non-payment of rent or charges. Mr Binnie fell into arrears and Forcelux obtained a default judgment against him. No payment was made following the judgment and so Forcelux served a notice on Mr Binnie under section 146 of the Law of Property Act 1925 and section 81 of the Housing Act 1996. There was no response to that notice and so Forcelux commenced proceedings for possession. By that time Forcelux had received no payment from Mr Binnie for over 2 years and had heard nothing from him for 12 months. The claim form gave an address for Mr Binnie as required by Rule 6.6 (2); it was the address of the flat. When the hearing date was fixed, the court attempted to serve the proceeding by post but the envelope was returned ‘Gone Away’. This was because, for some time passed, Mr Binnie had not been living in the flat. He was in fact then living with his girlfriend in another flat in the same building and had not collected any documents relating to the case from the flat.
The landlord appealed against the setting aside of his order for possession. The long residential lease provided for forfeiture for non-payment of ground rent or charges. The possession order was set aside and relief from forfeiture given on terms as to payment of arrears.
Held: Where the court makes a possession order in the absence of the tenant, following forfeiture of a lease for non payment of the ground rent, and the tenant subsequently applies to have the order set aside, the rule which is of relevance is CPR 3.1 (2). This is because, when the tenant does not appear at the hearing, there is no trial.
Warren J said: ‘Where a defendant does not appear at all, the test of the judge is entirely straight forward and routine once he is satisfied that service has been properly effected. He looks at the evidence and having no material which would suggest that the defendant has a case at all, let alone one which is genuinely disputed on grounds which appear to be substantial, he makes an order for possession.
I do not consider that such a process of determination and decision can sensibly be called a trial as a matter of the ordinary use of the word. Nor do I consider that it is being seen as a trial within Rule 39.3; the word is not to be given some special and wider meaning in the context of that Rule. Rather it can be seen more as a summary procedure in the sense of the procedure being carried out rapidly with the omission of most of the steps which in an ordinary case lead to trial it also has a lot in common with a disposal hearing as referred to in the PD Part 26 which I have already described, and which is clearly not a trial either in the ordinary sense of the word or in the context of the CPR’
Judges:
Ward, Jacob, Warren LJJ
Citations:
[2009] EWCA Civ 854, [2010] CP Rep 7
Links:
Statutes:
Law of Property Act 1925 146, Housing Act 1996 81, Civil Procedure Rules 39.3 55.5, County Court Act 1984 138
Jurisdiction:
England and Wales
Citing:
Cited – Estate Acquisition and Development Ltd v Wiltshire and Another CA 4-May-2006
The defendants appealed a decision that they had no sufficient reason for not attending court on the day of the trial.
Held: The fact that the defendants had a continuing commercial relationship with the claimants was not enough to justify an . .
Cited – Nelson and Another v Clearsprings (Management) Ltd CA 22-Sep-2006
The defendant did not appear at the trial and now appealed the judgment. The claim form and court papers had been served by post at the wrong address. The question was whether a defendant wanting to set aside a judgment was required to persuade the . .
Cited – Regency Rolls Ltd and Another v Carnall CA 16-Oct-2000
The court considered what was meant by ‘act promptly’ in the Rule.
Held: Dictionary definitions were considered by both Arden LJ and Simon Brown LJ – ‘with alacrity’ or ‘all reasonable celerity in the circumstances’. The court no longer has a . .
Cited – McCann v The United Kingdom ECHR 13-May-2008
The applicant and his wife were secure joint tenants of a house of a local authority under section 82. Their marriage broke down, and the applicant’s wife moved out of the house with the two children of the marriage. She returned after obtaining a . .
Cited by:
See Also – Forcelux Ltd v Binnie CA 21-Oct-2009
. .
Cited – Pritchard and Others v Teitelbaum and Others ChD 20-Apr-2011
The claimants sought orders allowing them to re-enter the tenanted properties after eviction in order to allow them recover their possessions left behind. Proceedings for recovery of possession had continued over several years.
Held: The . .
Cited – Grimason v Cates QBD 26-Jul-2013
The claimant tenant appealed against frfeiture of her leas saying that she had not received any notices. The parties disputed whether the addresss was the usual or last known address, and also that the forfeiture gave the landlord an unjust . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant, Litigation Practice
Updated: 04 August 2022; Ref: scu.376208