Porter v Shepherds Bush Housing Association [2008] EWCA Civ 196 is a Court of Appeal judgment on an appeal of an application for revival of tenancy where all the arrears were paid off on a breached suspended possession order.

The Court of Appeal was presented with the opportunity to follow its own 1958 decision of Payne v Cooper rather than the recent string of cases, (Burrows, Marshall, Aston, Ansell). The Court of Appeal declined the offer.

In the lead Judgment, Lord Justice Pill’s main reason for the choice is that Payne concerned an unconditional possession order (and whether it could be turned into a conditional order), rather than than the post HA 1985 rent arrears SPO where conditions are obligatory. The recent cases are, by contrast, exactly on point. The second reason is that Lord Evershed’s reference to non-jurisdictional matters in Payne may have influenced the decision.

The Court also considered a submission that a ‘paid-off’ SPO could be amended by the Court under the powers given in CPR 3.1(2)(a), so as to retrospectively give an extension of time for payment and removal of the instalment condition. This would then mean the Order could be discharged under s.85(4).

CPR 3.1(2)(a) provides:

“Except where these Rules provide otherwise, the court may –
(a)    Extend or shorten the time for compliance with any rule, practice, direction or court order (even if an application for extension is made after the time for compliance has expired;”

Lord Justice Pill said no. There was no reason why the CPR should override the statutory provisions. There were no unforeseen facts or change in circumstances to make the order misconceived or inappropriate. The emergence of the ‘permanent trespasser’ condition in case law, after the SPO was made in this case, did not amount to a change of circumstances that would enable the court to rewrite its earlier order.

The same went for the Court’s power to amend the order retrospectively. Statute provided for amendment on application. No application was made and nothing else had arisen to permit the rewriting under CPR 3.1

The Appellant’s submission that Marshall, Aston and Ansell were per incuriam because CPR 3.1 had not been considered in them – as a rule which would have affected the decisions – fell on this finding. In any case per incuriam only applies to a decision made without knowledge of binding precedent or statute on the matter.

Article 8, raised as an issue for construing s.85 and CPR 3.1, may be engaged by an order denying revival, but doesn’t go anywhere because “the Marshall and Aston constructions are compatible with Convention rights” (para 55)

Lord Justice Sedley was rather more open, both to Payne and to the Art 8 argument. The HRA wasn’t in force when the appellant became a tolerated trespasser, so was of no avail to him, but the Art 8 issues could mean that a Payne approach was to be preferred and the statute so construed, to avoid the Aston trap.(paras 59-61)

Lord Justice Longmore rejects Payne. If it had been raised in Marshall v Bradford, it would have likely been distinguished for the reasons (para 65):

i)    that the word “discharge” was used in the order in Payne’s case;
ii)    that there was no equivalent of section 82(2) in the 1923 Act; the regime introduced by the 1980 and 1985 Housing Acts is not the same as that utilised by the old Rent Acts;
iii)    that the earlier court did not consider the problems set out in the second and third reasons of Chadwick LJ in rejecting the argument.

In any case, Chadwick LJ’s first reason for dismissing the ‘discharge’ argument was based on the terms of s.82(2) HA 1985, which had no comparator in the earlier acts in Payne.

Even if all that was wrong, LJ Longmore would still prefer to follow the recent cases, to avoid a ‘divided voice’ in the Court of Appeal(!)(para 66).

So that, for the time being, is that. A divided judgment, to be sure, but one that puts the quietus to any lower court following in the footsteps of Helena Housing .

Payne may yet surface again in the House of Lords in the Ansell and White, but until then, it is sadly a dead issue.