LB Wandsworth v Whibley [2008] EWCA Civ 1259.

If a postponed possession order is made and the landlord takes the view that the conditions of postponement have been broken, the application for a date for possession should be conducted on a summary basis and only on the basis of evidence submitted by the landlord… or so argued LB Wandsworth in this case. Unsurprisingly, they lost.

Mr Whibley is the secure tenant of LB Wandsworth. He was a man who cultivated and used cannabis and who had been convicted of the same. LB Wandsworth sought possesson of his property on the basis of his drug convictions and some minor rent arrears. In due course, after trial, a postponed possession order was made. For some reason (likely an administrative error on the part of the court) the PPO only referred to payment of rent and not to any conditions to do with the nuisance.

A few months after the possession order was made, Wandsworth received further complaints about the behaviour of Mr Whibley. The solicitor for Wandsworth wrote to him giving details of the complaints and asking for a response within 7 days, in particular, detailing whether or not he disputed the right of the council to seek to fix a date for possession.

Mr Whibley did not respond himself but, very sensibly, engaged Flack and Co, who informed Wandsworth that the allegations were disputed (in the interests of full disclosure, William Flack is a regular commentator on this blog and is a friend of NL).

Wandsworth then applied to the county court to fix a date for possession. They included a witness statement in support of their application but did not provide the court with a copy of the letter from Flack and Co. (Although nothing ultimately turned on that point, that strikes me as particularly sharp practice). They later added rent arrears as a second reason for seeking to fix a date.

Mr Whibley cross-applied, seeking to adjourn the hearing with directions or, alternatively, for any warrant to be suspended. It was made clear that he denied responsibility for any nuisance and that, on his case, the nuisance was caused by unwanted and uninvited ‘guests’ who had taken over his flat.

The DJ who heard the applications did not give possession as Wandsworth sought, but instead varied the original possession order so as to record the condition of postponement as regards nuisance and then gave directions. He did, however, give Wandsworth permission to appeal. Wandsworth accepted that invitation and appealed to the Circuit Judge. Their stated intention (both before the CJ and the CA) was to:

Secure a ruling that, save in quite exceptional cases… county courts should give summary judgment without hearing evidence on applications to set a date on a postponed possession order [10]

The Court of Appeal had no difficulty in disposing of this argument. Whilst it is possible to deal with rent arrears cases in this way, that is only because rent arrears are (usually) a matter of record. This was not (usually) the case in nuisance cases, where the conduct was often disputed. That being so:

It is not permissible for a tenant who has a possible answer to lose his or her home unheard [12]

The nature of any such hearing (the necessary directions etc) would vary from case to case, and courts would be alive to ensuring that nuisance tenants did not abuse this process, but the process still had to be fair to both sides. A summary procedure could not possibly be fair if there was any room for dispute about the factual allegations made by the landlord.

Wandsworth had relied on Southwark v St Brice [2001] EWCA Civ 1138 for the proposition that a landlord should not have to prove matters twice. However, as the Court of Appeal pointed out, that was not what would happen in a PPO. The landlord was alleging fresh breaches of the terms of the postponement. It should have to prove them in the usual way.

Of course, if a tenant did not dispute the allegations (whether to do with rent, nuisance or anything else) then a court could properly consider the matters on the papers and proceed in a summary fashion, but that was not the case here. Appeal dismissed.

Sometimes, you just feel like weeping. Social landlords do, in my view, have a very important role to play in progressing the law and in advancing the best arguments that they can. They can and should push the law where they see fit. But this argument was nothing of that sort. This just seems petty and vindictive.