S.85 Application Randomness

We’ve been doing quite a few s.85 revival of tenancy applications recently, mostly successful. Where arrears have been paid off, our usual line is that no specific payments have been made for court costs and that court costs have not been added to the arrears. As the costs are outstanding, the Suspended Possession order has not been satisfied and remains both enforceable and variable under s.85. Usually this has worked.

But now, one of our local District Judges apparently has taken it into their head that if the rent account went into credit to a level higher than the court costs, then the costs are deemed paid. The DJ, so I have heard, found authority in L&Q v Ansell.

This is annoying. Not only because in my view there is no authority for this proposition in Ansell at the Court of Appeal, as I have previously discussed, but because, practically, we now are left with a lottery of which DJ hears a similar future application. Most of them have been happy to accept our point, but what if we get this DJ? Damn.

Also annoying is that we aren’t in a funding position on this case to take it to appeal. The Court of Appeal pretty much invited an appeal on this issue in Ansell. Somebody please take them up on it. If we get a suitably funded application to revive turned down by the same DJ, we will probably be looking to do so, but this needs sorting out as soon as possible.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


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