Relief from sanctions for not turning up?

In Home Group v Matrejek [2015] EWHC 441 (QB), the High Court has applied Rule 3.9 of the Civil Procedure Rules and the guidance on applications for relief from sanctions in Denton v TH White Ltd [2014] EWCA Civ 906 (our note here) to a possession claim based on nuisance and anti-social behaviour.

Ms M has been an assured tenant with Home Group of a property in Braintree, Essex since November 2002. Between 2011 and 2013, Ms M was accused of acting in a anti-social manner towards her neighbours, a notice seeking Possession was served on 23/8/2013 and a claim was issued in Chelmsford County Court in October 2013.

On 12/2/2014, HHJ Lochrane listed the matter for a directions hearing on 28/4/2014, the purpose of which was to co-ordinate the possession claim with a Children Act application involving Ms M’s children. In the week before the hearing on 28/4/2014, both parties’ legal representatives sought an adjournment and the landlord’s solicitor believed that no further directions were required. No response was received from the Court and Ms M’s representatives attended Court on her behalf.

The Claimant’s legal representatives elected not to attend the hearing and informed neither the Court nor Ms M’s solicitors that they would not attend. The result was that HHJ Lochrane found that he was unable to manage both claims and so he dismissed the possession claim and ordered Home Group to pay Ms M’s costs.

Home Group applied for relief from sanctions and on 9/6/2014, HHJ Lochrane granted the application and restored the possession claim. The leading authority at the time was Mitchell v News Group [2013] EWCA Civ 1537 (our note here). The judge found that, although Home Group’s solicitor had acted deliberately, their decision not to attend was perhaps explicable given that the purpose of the hearing was not made clear and there was just about a reasonable excuse. Justice also dictated that the claim be reinstated.

By the time Ms M’s appeal was heard by the High Court on 28/10/14, the leading authority was Denton and judgement was given on 23/2/2014. Sweeney J held that the decision not to attend the directions hearing was serious but at the second stage, he agreed with the Circuit Judge that Home Group had “just about a reasonable excuse” for not attending. While the other circumstances of the case would not, in the Court’s judgement, carry particular weight on their own, the Court’s finding that there was a reasonable excuse allowed the Court to weigh those circumstances (e.g. the effect on neighbours) in the balance. The Appeal was therefore dismissed.

Comment

Shortly after this judgement was handed down, the Law Society Gazette published an article beginning “The High Court has shown a further sign of lenience towards non-compliance.” Lenience was of course meant to be curbed by both the Mitchell and Denton judgments and this appeal raises the question whether a reasonable excuse and deliberate conduct can amount to a good reason within the scope of Denton.

We understand that an appeal has been lodged against the High Court’s decision so we shall see whether the Court of Appeal is prepared to look again at its CPR 3.9 guidance.

About Giles Peaker

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, and still is Nearly Legal on Google +.
Posted in ASB, assured-tenancy, Housing law - All, Possession and tagged , , .

2 Comments

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