Case Note: Routes of Appeal in Possession Claims
Case Note: Routes of appeal in possession claims
Southwark LBC v Ofogba [2012] EWHC 1520(QB)
On 15 June 2012, the High Court gave judgment in a case concerning the routes of appeal in possession claims under the Access to Justice Act (Destination of Appeals Order) 2000 (‘the Destination Order’). Hickinbottom J. gave clarification as to the routes of appeal in possession claims heard, including whether the route of appeal is to the Court of Appeal (Civil Division) or to the High Court.
The appellant was the former secure tenant of the respondent local housing authority. In 2009, the respondent issued a possession claim and shortly thereafter the parties agreed a consent order containing terms as to the payment of the ongoing rent along with agreed contributions towards the rent arrears claimed. The county court approved the consent order. The appellant subsequently failed to comply with the terms of the consent order and thereafter the possession claim was restored. The claim was allocated to the multi-track. The appellant was given permission to rely on an amended defence and counterclaim, by which he defended the claim on two grounds previously not pleaded in his defence, namely that the alleged rent arrears included: water charges which the respondent was not entitled to recover (on the basis that the water charges it could impose were limited as it was in law a ‘water reseller’); and charges for cleaning, lighting and maintenance etc. in respect of which no valid variation notices had been given by the respondent.
The claim was tried by a circuit judge. The trial judge upheld certain aspects of both parts of the amended defence and entered a money judgment in favour of the respondent, but for a lower figure than had been claimed. Materially, prior to handing down judgment the trial judge circulated a draft judgment in which she found inter alia that, in light of all the circumstances of the case including the level of rent arrears as had been recalculated after her findings, the possession claim should be dismissed. At the handing down of judgment, the trial judge entered a money judgment for outstanding rent arrears (calculated in the sum of £1,731.78). In relation to the respondent’s possession claim, the trial judge considered that, in the light of the current level of arrears and the appellant’s poor payment record and in the exercise of the statutory power in section 85(1) and (3) of the Housing Act 1985, the appropriate order was to adjourn the claim for possession generally, with permission to restore after 24 February 2012 and made an order accordingly.
The appellant (by this time acting in person but with some assistance from his former solicitors) intended to appeal on three discrete grounds—
- The judge erred in adjourning the claim for possession, having dismissed the claim in the draft judgment which she circulated (Ground 1);
- The judge erred in not finding that the respondent was a water reseller (Ground 2); and
- The judge erred in finding that the appellant was liable for charges, in circumstances in which valid notices of change had not been served on him (Ground 3).
The appellant initially lodged an appellant’s notice with the Court of Appeal (Civil Division), relying upon all three of the above grounds; however, that appeal was not pursued and an appeal on the same grounds was subsequently lodged in the High Court. The respondent lodged a respondent’s notice, appealing against the findings of the judge that various charges could not be claimed because valid notices had not been served in respect of them. On 14 March 2012, Globe J. granted the appellant general permission to appeal, and directed the appeal be set down with a time estimate of one day.
The appellant’s appeal to the High Court came before Hickinbottom J. for hearing in May 2012, at which the grant of permission in respect of Grounds 2 and 3 was revoked on the basis that any appeal in respect of those grounds must be to the Court of Appeal and the appellant’s appeal to the High Court was restricted to permission on Ground 1. In respect of that ground, Hickinbottom J. transferred the appeal to the Court of Appeal pursuant to powers under CPR Rule 52.14(1)(b).
Hickinbottom J. observed that although section 77(1) of the County Courts Act 1984 provides, generally, that if a party to proceedings in the county court is ‘dissatisfied with the determination of the judge […] he may appeal from it to the Court of Appeal’, the Destination Order implemented a new general principle with regard to routes of appeal, namely that an appeal lies to the next level of judge in the court hierarchy. In support of this principle, Hickinbottom J. cited Tanfern Ltd v Cameron-MacDonald (Practice Note) [2000] 1 WLR 1311, at [15].
Article 3 of the Destination Order provides that, subject to the exceptions in Articles 4 and 5, an appeal from a circuit judge sitting in the county court lies to a single High Court Judge.
In this regard, Article 4(a) provides—
‘An appeal shall lie to the Court of Appeal where the decision to be appealed is a final decision […] in a claim made under Part 7 of the Civil Procedure Rules 1998 and allocated to the multi-track under those Rules’.
As regards the definition of a ‘final decision’, Article 1(2)(c) and (3) of the Destination Order provides:
‘(2)(c) ‘final decision’ means a decision of a court that would finally determine (subject to any possible appeal […]) the entire proceedings whichever way the court decided the issues before it.
(3) A decision of a court shall be treated as a final decision where it:
(a) is made at the conclusion of a part of a hearing or trial which has been split into parts; and
(b) would, if made at the conclusion of that hearing or trial, be a final decision under paragraph (2)(c).’
In relation to the meaning of ‘final decision’ under the Destination Order, Hickinbottom J. said—
‘Of course, what matters for these purposes is not whether a formal direction for a split trial is made prior to the event; but rather whether a decision is made at the conclusion of part of a hearing or trial which has, in fact, been split into parts. Therefore, where a court gives judgment on liability only because time constraints means that there is insufficient time for damages to be dealt with at a trial originally planned to deal with both, an appeal against that judgment will lie to the Court of Appeal; just as much as where a trial of issues of liability only is earlier directed at a case management hearing. However, if, at the same time as giving judgment on liability, a circuit judge in the county court makes case management orders in relation to quantum, those would not be “final decisions” and would be appealable to the High Court.’ ([2012] EWHC 1620 (QB) at [17]).
Hickinbottom J. summarised the requirements under the Destination Order for the direct route of appeal to the Court of Appeal in a possession claim:
- The possession claim must have been made under Part 7 (until October 2001, when the Civil Procedure (Amendment) Rules 2001 (SI 2001 No 256) introduced CPR Part 55, possession claims were brought under CPR Part 8. CPR Part 55 introduced a new procedural code for possession claims, under which claims are treated as Part 7 claims (see CPR PD 7A paragraph 3.3, and Scribes West Limited v Relsa Anstalt (No 2) [2004] EWCA Civ 965 at [30] – [33]);
- The claim must have been allocated to the multi-track;
- The decision against which an appeal is made must be a ‘final decision’ within the meaning of the Destination Order;
- So long as the other conditions apply, it is irrelevant whether the judge in the county court is a circuit judge or a district judge. An appeal against a final decision in the county court in a Part 7 claim which has been allocated to the multi-track is directly to the Court of Appeal, whether the county court judge is a circuit judge or a district judge;
- Where the decision of the county court is itself made on an appeal (i.e. by a circuit judge from a district judge), then the decision can only be made to the Court of Appeal (see: Article 5 of the Destination Order);
- In identifying the correct appeal route, the appeal court can only interpret the order as it finds it (citing Scribes West at [29] per Brooke LJ). However, where permission to appeal is requested from the lower court, CPR Rule 40.2(4) requires the substantive judgment or order to state whether it is final, and the route of appeal. Where it does not do so, an application under the slip rule can be made to require those mandatory particulars to be included.
- Applying the above to the facts of the case, Hickinbottom J. held that the respondent’s claim was a claim under CPR Part 7 which, by the time of trial, had been allocated to the multi-track. The appellant sought to appeal both the money judgment and the decision of the judge to adjourn the claim for possession. By dealing with the money claim and the claim for possession, the trial judge had split the trial into parts.
In relation to the money claim, the judgment was a final decision and any appeal was to the Court of Appeal. In relation to the claim for possession part, the decision to adjourn was not a final decision and any appeal was to the High Court. As regards Grounds 2 and 3, Globe J. did not have jurisdiction to grant permission to appeal and the appellant required permission from the Court of Appeal. Although the permission in relation to the adjournment of the claim for possession was properly granted; but, to enable all issues to be dealt with in one appeal forum, Hickinbottom J transferred that appeal to the Court of Appeal pursuant to the power in CPR Rule 52.14(1)(b).
Hickinbottom J. also observed obiter that when managing a possession claim a judge had to give careful consideration to allocation of track, as that could affect not only the costs regime but also the route of appeal ([2012] EWHC 1620 (QB) at [21]).
The appellant’s application for permission to appeal to the Court of Appeal remains outstanding.
