12/08/2010

Suspended Possession Orders and Insolvency: with benefit of transcript

And as if by magic (thanks J) we have a transcript for the permission hearing judgment in Godfrey v A2 Dominion [2010] EWCA Civ 941, following our earlier note here.

Brief facts – the assured tenant ran up rent arrears. A2 began possession proceedings. Before hearing, the Official Receiver made a “debt relief order” in respect of T, within the meaning of Part 7A of the Insolvency Act 1986, as amended. That order included the rent arrears.

At hearing of the possession claim the DJ made an SPO on terms of rent plus £5 pw towards the arrears, apparently, or impliedly, refusing to stay the proceedings as per s.251(3) Insolvency Act:

If on the effective date a creditor to whom a specified qualifying debt is owed has any such petition, action or other proceeding as mentioned in subsection (2)(b) pending in any court, the court may–
(a) stay the proceedings on the petition, action or other proceedings (as the case may be),
or
(b) allow them to continue on such terms as the court thinks fit.

On first appeal, the CJ dismissed the appeal on the grounds that a possession order based upon arrears of rent was not “a remedy in respect of the debt” within the meaning of section 251G(2).

T applied for permission to appeal, arguing that:

A2’s proceedings were for a “remedy in respect of the debt” within the meaning of section 251G(2), manifested by the fact that A2’s claim included a claim for the arrears of rent and District Judge Gatter’s order gave judgment against the applicant for such arrears. It is said that she was wrong in principle not to stay the proceedings under section 251G(3) and it is sought to be argued that the making of a suspended possession order, such as she made, was also a “remedy in respect of a debt”, the whole point of a suspended order being, Ms Bretherton [for G] submits, to compel the payment of the arrears. Ms Bretherton fairly recognises that it is said that there stands in the path of a successful appeal along these lines the decision of this court in Harlow District Council v Hall [2006] EWCA Civ 156, [2006] HLR 27, but she has advanced at least three submissions to me as to why she says that that case is in no way dispositive of the arguments that she wishes to deploy in what she says are the very different circumstances of the present case.

Permission to appeal granted as the arguments appeared:

to raise important questions of principle turning on the new regime of debt relief orders, upon which there is no direct authority in this court and in respect of which the material before me shows that there is considerable professional interest.

So, quite different grounds and some diofferent facts to those apparently at issue in North British Housing v Sharples. Could be a very interesting pairing on appeal.

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.

10 Comments

  1. Anna Socci

    Hi

    could you pass on the transcript please? Alternatively, could you please advise on who to contact to obtain it?

    Many thanks

    Reply
    • NL

      You’ve got mail.

      Reply
  2. James Ellis

    Does anyone know when this appeal is likely to be heard?

    Reply
    • NL

      From a Counsel in the case, we understand ‘some way into 2011’ is likely. Also probably to be joined with North British v Sharples.

      Reply
  3. James Ellis

    Hi again

    Does anyone know if this and/or Sharples has been heard yet?

    Difficult to tell whether we’re “some way into 2011” yet or not!

    Thanks

    Reply
    • NL

      Some point in May, I vaguely recall. Anyone else know better?

      Reply
    • JS

      By the way James the best way to find out these things is Case Tracker on the HMCS website .Just put in the name of a party and it will give you a generaly reliable update.

      Reply
      • NL

        HMCTS…

        Reply
  4. JS

    Floating on 16/17 May – Lord Neuberger MR, Etherton and Aikens

    Reply
  5. James Ellis

    Thanks a lot everyone.

    Will keep my eye’s peeled!

    Reply

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