12/07/2020

Getting late legal advice not a ground for set aside of possession order

Sangha v Amicus Finance Plc (2020) EWHC 1074 (Ch)

This was Mr Sangha’s appeal of a refusal of his application to set aside a possession order against his property by a lender who had a charge on the property against a bridging loan which was not repaid. The back story is somewhat complicated, involving commercial properties, loans and leases, but not relevant to the grounds of the decision, so anyone interested can read the judgment.

A possession order had been made on 27 Janaury 2017. At the hearing, Mr S had represented himself. In September 2017, Mr S applied to stay a warrant of possession obtained by Amicus, but before that was heard, Mr S applied on 1 December 2017 to set aside the possession order under CPR 3.1(7), on the basis that “he had a conference with counsel on 30 November 2017, at which point he became aware that he had a potential defence to the possession proceedings”.

That application was dismissed on 6 April 2018. Mr S appealed.

The appeal was dismissed.

i) A possession order was a final order. It was irrelevant that Amicus had not yet executed it.

ii) Other than where a defendant did not attend the hearing at which the order was made, truly exceptional circumstances were required to set aside a possession order under CPR 3.1(7) and the circumstances in which it would be appropriate to do so would be very rare. Daniel Terry v BCS Corporate Acceptances Limited (2018) EWCA Civ 2422

iii) Unlike Forcelux v Binnie (2009) EWCA Civ 854, Mr S had attended the hearing. The fact that Mr Sangha was unrepresented at the hearing did not mean that he had not been in attendance. Attendance was a binary issue, there or not.

Even if ‘ineffectual’ attendance could count as ‘non-attendance’, the CPR 39.3(5) criteria applied. Mr S’s application was delayed by 10 months. There were no new facts not known at the possession hearing, and there was no explanation as to why Mr S was not represented at the possession hearing, as he had been represented prior to it, or did not get legal advice for 10 months after the hearing, when he had solicitors again some two months after the possession hearing.

iv) Nor were the circumstances exceptional.

Appeal dismissed.

 

 

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.

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