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On appeal, HHJ Bloom has overturned District Judge Redpath-Stevens’ decision in a residential possession claim permission, filing that the defence relied on an argument that the judge provided to them during the hearing.
The appeal is particularly interesting, as it arose from the first hearing of a possession claim, heard for just ten minutes in a busy list. HHJ Bloom (a former district judge herself) thought that the way the District Judge had handled the matter was clearly wrong. Finding the defence unarguable, she made clear her sympathy for the Defendant. The point had been raised by the judge, not by the Defendant, and it was unsurprising that the Defendant believed that she could rely on the argument in her defence. HHJ Bloom took the view that the way the judge proceeded was not in the Defendant’s interests, and that the proceedings should come to an end as soon as possible. She made an order for possession forthwith and, in doing so, gave something of a warning to district judges hearing possession lists not to push procedural boundaries so far in the interests of fairness that they actually act against the interests of defendants without realistic defences to claims.
The Claimant, Regis Group (Barclays) Ltd, purchased a house in London from the Defendant’s sister-in-law. After the sale had completed, the Defendant’s mother remained in possession. The Claimant issued a possession claim against her. She defended that claim on the basis that she was solely beneficially entitled to the property pursuant to a constructive trust in her favour. That was because she had originally owned the property, but had transferred title to her son on the understanding that she would be entitled to live there until she died. Her son subsequently transferred the title to his wife, from whom the Claimant purchased the house. That possession claim was settled, on terms that in return for the members of the Yankey family executing deeds declaring that they had no beneficial interest in the house, the Claimant would grant the Defendant’s mother a licence to live in the house until her death. The deeds were provided, and the Claimant granted the Defendant’s mother a licence pursuant to the terms of a written agreement. The terms allowed the Defendant a period of two months following her mother’s death to vacate the property.
The Defendant’s mother died in 2019, but the Defendant neither notified the Claimant nor vacated the house. When the Claimant discovered the position, it sent notices and letters requesting possession. The Defendant failed to return possession, so the Claimant issued a further possession claim against her. No defence was served before the first hearing.
The first hearing came before District Judge Redpath-Stevens in the Stratford Housing Centre in November 2022 in the possession list. The Defendant attended but was unrepresented and raised no defence to the claim. The Claimant sought a possession order on the basis that the licence had come to an end and that the Defendant occupied as a trespasser.
The District Judge doubted that the agreement created a licence. In response to submissions, he remarked “that is fascinating, but as Street v Mountford makes absolutely clear, if you grant somebody exclusive possession for a period then it is not a licence”. When counsel pointed out that that point was not taken by the Defendant, he responded, “I am taking it”, and told counsel “I need you to satisfy me why it isn’t a tenancy”. After counsel failed to do so in the course of further submissions, he gave the Defendant permission to file a defence. Before the Defendant served her defence, the Claimant applied for permission to appeal the District Judge’s order, on the ground that he had erred in law in finding that the Defendant had an arguable defence that the agreement created a tenancy and not a licence.
That appeal was heard by HHJ Bloom in the County Court at Central London on 7th June 2023. She accepted that the test which the judge had to apply was the same as that for summary judgment: whether the defence had a real prospect of success. HHJ Bloom thought that the District Judge had been “plainly wrong” to focus on whether there was exclusive possession without taking the surrounding circumstances of the grant of the licence into account. In her view, everything pointed very clearly to the agreement creating a licence. The District Judge was therefore wrong to find that it was arguable that the parties had created a tenancy. The appeal was allowed.
Tom Morris acted for the Claimant and successful Appellant, instructed by Liam Hale at Winckworth Sherwood LLP.
