Hajan v Mayor & Burgesses of the London Borough of Brent (2024) EWCA Civ 1260

My very grateful thanks to William Heath and Frank Bowmaker of One Pump Court for the following note of the Court of Appeal judgment in these joined appeals. The issue was the correct procedure for landlords seeking to recover possession on grounds of serious anti-social behaviour within existing possession claims initially brought on other grounds.

Facts – Hajan v Brent

The Claimant (Respondent) was Brent Borough Council, who granted the Defendant (Appellant) Mr Hajan a secure tenancy in 2010.

On 5 August 2022, Mr Hajan pleaded guilty to an offence under s.1 of the Criminal Damage Act 1971 committed in June 2022 at Brent Civic Centre.

Brent served a notice seeking possession on Mr Hajan in November 2022 on grounds 1 and 2 in Schedule 2 to the Housing Act 1985. The notice relied on alleged rent arrears, noise nuisance, drug dealing, attempted arson, and possession of a weapon and the criminal damage conviction. They issued proceedings the following month.

After receiving a certificate of Mr Hajan’s conviction, Brent on 4 May 2023 served a further notice on Mr Hajan under s.83ZA, relying on the mandatory ground in s.84A. The notice stated that court proceedings for possession would not be begun until after 5 June 2023.

Rather than commence new proceedings on the ground in s.84A, Brent applied on 6 June 2023 to amend the Particulars of Claim in the existing proceedings to include that ground. DDJ Samuel granted the application. Mr Hajan applied for permission to appeal, which was granted by HHJ Luba KC in the Circuit Court, but the appeal was transferred to the Court of Appeal to be heard alongside Poplar HARCA v Kerr.

Judgment of the Court of Appeal – Hajan v Brent

Hajan v Brent turned on an argument over what it means for ‘proceedings’ to be ‘begun’ in the possession context.

If landlords wish to rely on the ground in s.84A, they must give notice to the tenant in the form prescribed by s.83(ZA). Significantly in this case, s.83(ZA)(9) provides that:

(9)  The notice—

(a)  must also specify the date after which proceedings for the possession of the dwelling-house may be begun, and

(b)  ceases to be in force 12 months after the date so specified.

Similarly, s.83A provides that:

(2) Where—

(a)  a notice under … 83ZA has been served on a tenant, and

(b)  a date after which proceedings may be begun has been specified in the notice in accordance with … section 83ZA(9)(a),

the court shall not entertain proceedings for the possession of the dwelling-house unless they are begun after the date so specified and at a time when the notice is still in force.

It was argued for Mr Hajan that the natural reading of ‘begun’ and ‘proceedings’ in these provisions required new proceedings to be issued after the date specified on the s.83(ZA) notice. Brent argued that the meaning was broader and that ‘proceedings’ were ‘begun’ when a landlord made an application to amend. Brent’s Respondent’s Notice also sought to amend the order of DDJ Samuel to state that the amendment should take effect ‘from the date of this order’.

The Court of Appeal applied a purposive interpretation to ss. 83ZA and 83A, finding at (50) that:

“50. Their first purpose is to inform the tenant that the landlord will seek possession on the mandatory ground and give reasons for that decision. Their second purpose is to inform the tenant of their right to request a review of that decision. Their third purpose is to ensure that the landlord acts promptly after the conviction. Their fourth purpose is to specify a date after which proceedings may be begun (which will generally be a month or thereabouts after service of the notice), and to ensure that proceedings are begun within a year thereafter. The date specified in the notice will also be the deadline for completing any review under section 85ZA. Overall, therefore, the purpose of section 83ZA is to inform the tenant of the landlord’s decision (with reasons); to give him a fair opportunity to request a review of it and to ensure that the tenant is not subjected to proceedings based on a stale conviction. The purpose of section 83 A (2) is to preclude the court from acting unless that process has been concluded…”

The Court accepted that ‘proceedings’ could refer to an amended claim but rejected the submission that such proceedings could be begun on the date of the application to amend. Such an application might not be granted, and the Claimant may choose not to do so even if it were.  Rather, providing the amendment is granted and an effective date is specified on the order, ‘proceedings’ are ‘begun’ on the date when the amendment takes effect.

In coming to this conclusion, the court appears to have been persuaded by the practical implications of the two competing interpretations. Lewison LJ observed that:

55. The interpretation for which the tenant contends is wasteful of costs and court time, and results in an unnecessary duplication of effort. That is contrary to the judgment of Ward LJ in Manchester CC v Finn (2002] EWCA Civ 1998, (2003] HLR 41; and the observations of Lord Neuberger in Knowsley Housing Trust v White (2008] UKHL 70, (2009] 1 AC 636 (both of which I cite below). It is also contrary to the policy of the CPR which encourages all issues between parties to be decided in the same action. The substantive protections given to the tenant by the statutory scheme (i.e. the time lapse between service of the notice and taking steps to recover possession on the mandatory ground, and the ability to apply for a review of the landlord’s decision to serve the notice) have been adhered to. The procedural tail should not be allowed to wag the substantive dog.

Facts – Poplar HARCA v Kerr

The Claimant (Respondent) was a social landlord, Poplar Housing and Regeneration Community Association Limited. The Defendant (Appellant), Mrs Kerr, had been a tenant since 2004. Her tenancy was an assured tenancy protected by the Housing Act 1988.

Mrs Kerr fell into rent arrears and her landlord sought possession. On 7 February 2017, DJ Pigram made an order for possession on discretionary grounds relating to the arrears. The Judge further directed, pursuant to ss. 9(2) and 9(3) of the 1988 Act, that it be suspended on condition that Mrs Kerr paid the landlord £3.75 per week in rent and arrears.

Mrs Kerr’s son was subsequently convicted of possession of an imitation firearm with intent to cause of violence. In light of that offence, the landlord decided to seek possession under the mandatory ground at Ground 7A in Schedule 2 to the 1988 Act. Rather than initiate fresh proceedings, the landlord applied to the court in the extant proceedings for a variation of the suspended order, which it described as “converting the suspended order…into an outright possession order”.

DJ Bell heard the application on 16 February 2022. She found that she had jurisdiction to make the order under s. 9 and varied the original order to an outright order for possession. Mrs Kerr appealed.

HHJ Luba KC heard the appeal on 26 July 2023. He found that s. 9 was not in play; rather, a suspended order for possession carried with it an implicit “liberty to apply”, and this gave the Court the power to vary the suspended order as sought by the landlord.

Judgment of the Court of Appeal – Poplar HARCA v Kerr

The issue on appeal was whether the court has the power to vary a suspended order for possession originally made on a discretionary ground by making an unconditional order on a mandatory ground, either in exercise of its powers under s.9 of the 1988 Act or under an implied “liberty to apply”.

S.9 relevantly provides:

“(1) Subject to subsection (6) below, the court may adjourn for such period or periods as it thinks fit proceedings for possession of a dwelling-house let on an assured tenancy.

(2)  On the making of an order for possession of a dwelling-house let on an assured tenancy or at any time before the execution of such an order, the court, subject to subsection (6) below, may—

(a)  stay or suspend execution of the order, or

(b)  postpone the date of possession,

 for such period or periods as the court thinks just.

(3)   On any such adjournment as is referred to in subsection (1) above or on any such stay, suspension or postponement as is referred to in subsection (2) above, the court, unless it considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable, shall impose conditions with regard to payment by the tenant of arrears of rent (if any) and rent and may impose such other conditions as it thinks fit.

(4)  If any such conditions as are referred to in subsection (3) above are complied with, the court may, if it thinks fit, discharge or rescind any such order as is referred to in subsection (2) above.

…

(6)  This section does not apply if the court is satisfied that the landlord is entitled to possession of the dwelling-house—

(a)  on any of the grounds in Part I of Schedule 2 to this Act; or

(b)  by virtue of subsection (1) or subsection (4) of section 21 below.”

As a starting point, the Court of Appeal considered the powers provided by s.85 of the Housing Act 1985: a provision it found to be similar in terms and purpose to s. 9. It analysed two related cases, Sheffield City Council v Hopkins (2001] EWCA Civ 1023, (2002] HLR 12 and Manchester CC v Finn (2002] EWCA Civ 1998, (2003] HLR 41, and derived three propositions at (75]:

1. On an application under section 85 the court may consider matters that were not within the scope of the original proceedings which led to the making of the possession order in the first place.
2. In the light of those matters, the court may reconsider any terms of suspension or postponement of possession; and

• In the exercise of its powers under that section the court may vary a conditional order so as to turn it into an outright order.

It was argued for Mrs Kerr that s.9 of the 1988 Act does not provide the court with an express power to vary an order for possession. This was raised in relation to s.85 in Manchester but rejected on the basis that a purposive construction to the Act was needed. Mrs Kerr argued that this was obiter, and in any event the legislation relating to the security of tenure of residential tenants should be “clear, simple and consistent” such that a purposive approach was inappropriate.

The Court of Appeal disagreed. It held that it was necessary to interpret s.9 in light of what Lewison LJ had at (38] established as the purpose of mandatory grounds for possession: to expedite the eviction of landlords’ “most anti-social tenants” and bring faster relief to victims.

Further, Counsel for Mrs Kerr had accepted that a court could discharge the conditions on which a suspended order was made, thus allowing it to be enforced and executed, but argued that this was not possible where the material relied upon to vary the order would have established a mandatory ground. This was said to be because s. 9(6) prohibited the use of the s.9 power in cases where the landlord was entitled to recover possession on a mandatory ground.

Conversely, the Court of Appeal held that s.9(6) did not limit the court’s discretion. The function of s.9(6) is to remove the court’s power to stay, suspend or vary where the landlord is entitled to possession on mandatory grounds, not to preclude the court from varying an order for possession made on discretionary grounds where there was new material that would have established a mandatory ground.

The Court’s reasoning was as follows. An order for possession is made under s.7. S. 9 only bites after an order for possession has been made under s.7. In the instant case, that was paragraph 1 of the original order of DJ Pigram. It is then that the power to suspend is engaged under s. 9(2) and, if exercised, the power to impose conditions under s. 9(3). Those powers implicitly include the power to vary or rescind any suspension conditions up until the order is executed. Having made an order for possession, DJ Pigram in subsequent paragraphs exercised the s.9 power to suspend the order on conditions. DJ Bell used that same power to discharge the suspension, effectively making the order an outright one:

Since the power under section 9 includes the discharge of conditions originally imposed, the court may discharge conditions subject to which the order for possession was suspended and allow it to take effect as an immediately enforceable order. (89]

Paragraphs 90-91 deal with submissions regarding the reasoning of HHJ Luba QC in dismissing Mrs Kerr’s first appeal. While DJ Bell considered her jurisdiction to vary the possession order to arise from s.9 of the 1988 Act itself, HHJ Luba accepted the submission made on behalf of Mrs Kerr but held instead that the jurisdiction arose from the ‘liberty to apply’ implicit in any suspended order for possession. It was therefore argued for Mrs Kerr in the Court of Appeal that such ‘liberty to apply’ does not extend to the fundamental variation of a conditional or suspended order into an outright one.

The Court of Appeal rejected this submission, finding that DJ Bell had not rewritten the order, but rather discharged the conditions of suspension using the s.9 power. In any event, Lewison LJ departed from the interpretation of HHJ Luba, declaring the ‘liberty to apply’ matter a ‘red herring’ (91] and preferring the reasoning of the District Judge.