In Southwark LBC v Ofogba  EWHC 1620 (QB) Hickinbottom J clarified the routes of appeal for appeals against orders arising in possession claims.
Briefly, Southwark brought a claim for possession against Mr Ofogba on the basis of rent arrears. Mr Ofogba defended the claim on the basis that he did not owe the arrears, because they consisted of estate cleaning and maintenance charges and water rates which were not recoverable under the tenancy agreement.
Mr Ofogba’s defence failed, but the circuit judge hearing the claim decided that Southwark had, for some years, charged unlawfully for CCTV coverage. Such charges were not covered by the tenancy agreement because Southwark had failed to serve a valid notice under s.103, Housing Act 1985 when they had sought to amend the tenancy agreement.
This meant that at the date proceedings were issued Mr Ofogba only owed around £90, albeit by the date of the trial he owed around £1,7oo The circuit judge gave a draft judgment and decided that it was not, despite the arrears of £1,700, reasonable to make a possession order. The circuit judge subsequently handed down her judgment formally at a hearing. Curiously, the circuit judge then ordered that the possession claim was adjourned generally with permission to restore after 24 February 2012.
Mr Ofogba sought to appeal on three grounds. Two of his grounds related to the points raised in his defence, but his third ground was that the circuit judge’s was wrong to adjourn the possession claim when in her draft judgment she had ordered that the possession claim should be dismissed.
At first Mr Ofogba lodged an appeal with the Court of Appeal, but did not pursue that appeal and instead lodged an appeal on the same grounds at the High Court. Mr Ofogba was subsequently given permission to appeal on all three grounds.
At his appeal hearing Hickinbottom J revoked Mr Ofogba’s permission to appeal on his first two grounds and transferred his third ground of appeal to the Court of Appeal under CPR 52.14(1)(b). He then gave reasons in a written judgment for doing so.
Routes of appeal
An appeal from a circuit judge ordinarily lies to a High Court judge save in circumstances where the decision to be appealed is a final decision in a Part 7 claim which has been allocated to the multi-track. In those circumstances any appeal lies to the Court of Appeal: Art.3 and 4, Access to Justice Act (Destination of Appeals Order) 2000. Equally, an appeal from a district judge lies to a circuit judge, unless the decision to be appealed is a final decision in a Part 7 claim which has been allocated to the multi-track.
A decision is final if it finally determines the entire proceedings: Art.1(2)(c). A decision is to be treated as final if a trial has been split into parts and the decision has been made at the conclusion of a part of a hearing or trial and, if it had been made at the conclusion of the trial, would have been a final decision: Art.1(3).
In this case this meant that the decision that Mr Ofogba owed£1,700 in rent arrears was a final decision, even though the possession claim had been adjourned. The claim for possession and the money claim had been split and the decision that Mr Ofogba owed £1700 was to be treated as a final decision.
This meant that the route of appeal in respect of Mr Ofogba’s first two grounds (which determined his financial liability) was to the Court of Appeal. The decision to adjourn, however, was not a final decision and was therefore to the High Court. Accordingly, the High Court lacked jurisdiction to grant permission to appeal on the first two grounds and that permission had to be revoked. Mr Ofogba was required to ask the Court of Appeal for permission to appeal on those grounds. The third ground of appeal was transferred to the Court of Appeal to enable all of the issues to be dealt with in one appeal forum.