Baqir Al-Chaalan & Anor v Abri Group Ltd [2026] EWCA Civ 946
This was an unsuccessful appeal to the Court of Appeal against a possession order by a tenant who argued that the proceedings had not been validly served on him and that, in any event, the order should be set aside.
Before the claim was issued
The tenant, Mr Al-Chaalan, had travelled to Iraq in June 2020 to visit his brother. He was taken ill and was unable to return from Iraq, according to information provided by his daughter to the landlord in around February 2022.
The landlord (identified as Octavia Housing in the judgment as that was its name at the time of the events) carried out an inspection and encountered a Mr Abualkibash at the property. Mr Abualkibash claimed to be the sole occupant of the property. The judgment reports that this individual, stated to be the tenant’s nephew and carer, had occupied the property since 2019.
The landlord, Octavia, served a notice to quit in September 2022. In January 2023 Octavia’s solicitors wrote to both the tenant and Mr Abualkibash threatening to commence proceedings. Mr Abualkibash instructed solicitors who wrote to Octavia asking for the basis of the notice to quit and for disclosure of documents relating to tenancy. Octavia declined on the basis that they could not provide information to Mr Abualkibash about a third party’s tenancy.
Possession claim
In April 2023 Octavia issued a claim for possession against the tenant, Mr Al-Chaalan. The claim was on the basis that he had sub-let the property, or ceased to occupy it as his only or principal home, or that he had died. His personal representatives were named as parties. The address for service on the defendants provided in the claim form was the property itself.
By this stage Mr Abualkibash’s solicitors were acting for the tenant Mr Al-Chaalan. They requested copies of the notices, correspondence and court papers from Octavia, but despite chasing, they did not receive any response.
On 18 May 2023 the court sent notice of a possession hearing in June to the parties. A defence was filed, signed by Mr Abualkibash purportedly as “litigation friend” for the tenant Mr Al-Chaalan. This defence stated that Mr Al-Chaalan was alive and was living in the property.
The hearing took place on 20 June 2023. Neither Mr Al-Chaalan nor Mr Abualkibash attended, and a possession order was made.
That same day Mr Abualkibash applied to set aside the possession order. It seems that he considered himself to be the “personal representative” of Mr Al-Chaalan, and he stated that he had been late for the hearing. This, and a second application made ten days later, were both dismissed as totally without merit. In response to a further email from Mr Abualkibash questioning the court’s finding that he had no standing in the proceedings, a District Judge explained that Mr Abualkibash could not be a personal representative for Mr Al-Chaalan since, according to his own application, Mr Al-Chaalan was alive, and “personal representative” refers to someone entitled to administer the estate of a deceased person.
On 29 September Mr Al-Chaalan applied, through his solicitors, for the possession order to be set aside. This third application was heard on 25 October 2023. Mr Al-Chaalan’s representative argued that he had not been served with the proceedings, and that Octavia had acted “improperly or remarkably” by not informing Mr Al-Chaalan’s solicitors of the details of the claim and hearing when requested in May 2023.
If the proceedings had not been validly served the possession order could not stand, but if they had been validly served, the remaining question before the court was whether to set aside a possession order made at a hearing that the tenant Mr Al-Chaalan had not attended. The Deputy District Judge, with the parties’ agreement, applied a test similar to that set out in CPR r 39.3(5), the rule addressing setting aside a judgment made at trial in the absence of a party. For the possession order to be set aside Mr Al-Chaalan therefore had to demonstrate that (1) he had acted promptly, (2) he had a good reason for not attending the hearing, and (3) he had reasonable prospects of successfully defending the claim.
Outcome of set aside application
The court found that the claim had been validly served either under CPR r 6.8 or alternatively CPR r 6.9.
Further, the judge found that Mr Al-Chaalan was aware of the hearing, since Mr Abualkibash knew about it, and the two had been in communication with each other. Mr Al-Chaalan should therefore have sent his solicitors to the hearing.
It was, the Deputy District Judge found, “regrettable” that Octavia had not communicated with the solicitors acting for Mr Al-Chaalan and Mr Abualkibash, but this was caused by a “misconception” on the part of Octavia and did not change the fact that Mr Al-Chaalan should have sent his solicitors to the hearing.
Mr Al-Chaalan therefore did not have a good reason for failing to attend the hearing. The court also held that Mr Al-Chaalan had not acted promptly enough in applying to set aside the order.
Finally, the Deputy District Judge decided that the ‘reasonable prospects of success’ criterion was fulfilled, but this in itself was not enough to justify setting aside the order.
Appeal to Circuit Judge
Mr Al-Chaalan appealed. His appeal was not heard until 6 June 2025, some twenty months later. Perhaps it was not worth the wait for Mr Al-Chaalan, as his appeal was dismissed and he was ordered to pay costs.
Her Honour Judge Bloom agreed that the proceedings were validly served. She concluded that the Deputy District Judge was entitled to draw the inference that Mr Al-Chaalan must have been aware of the proceedings and the hearing. Regarding the complaint about the failure to communicate with Mr Al-Chaalan’s solicitors, the Deputy District Judge had made “a proper finding that he was entitled to make on the evidence that was before him”.
Court of Appeal
Mr Al-Chaalan’s second appeal raised the same issues again. He argued that he had not been validly served with the proceedings, that the assessment of the evidence was subject to fundamental errors, and that the “egregious” conduct of Octavia in itself required that the possession order be set aside.
The judgment notes that Mr Al-Chaalan’s tenancy agreement specified:
“Any legal notice, or any other communications arising from the Agreement, shall be treated as validly served on the Tenant if posted or delivered to the Premises”.
Asplin LJ finds at paragraph 26 that the claim form would fall within the meaning of ‘legal notice’ in this clause.
“It seems to me that the plain meaning of the phrase “[A]ny legal notice, or any other communication arising from the Agreement” is sufficiently wide to include the service of proceedings arising from the Tenancy Agreement, in the sense of the contractual relationship of landlord and tenant created by it. It is difficult to see how a claim form seeking possession is not a “legal notice” (emphasis added) “arising from the Agreement.” Although it is a formal court document, it is a legal notice which relates to the relationship of landlord and tenant, is served by the landlord in that capacity upon the tenant qua tenant and arises from the terms of the tenancy agreement.”
Accordingly, this clause of the tenancy agreement was sufficient to establish that the property’s address was one which Mr Al-Chaalan had given for the purpose of being served with the proceedings pursuant to CPR r 6.8(a):
6.8 <…> –
(a) the defendant may be served with the claim form at an address at which the defendant resides or carries on business within the UK and which the defendant has given for the purpose of being served with the proceedings;
In respect of the factual findings, and the treatment of the landlord’s conduct, the court found that the Deputy District Judge and the Circuit Judge were entitled to reach the decisions they did and the possession order should not be set aside.
Comment
One might have thought that serving proceedings on a residential tenant at the property they are renting ostensibly as their main home ought to be uncontroversial. It normally is.
Proceedings are typically served on defendants who are individuals at their usual or last known residence, that being the location specified in the table at CPR r 6.9(2).
In this case, when the proceedings were served, the claimant was unsure whether the tenant was alive or dead, and believed him to be living abroad if he was alive. That might engage rule 6.9(3), which specifies that where a claimant has reason to believe that the usual or last known residence of the defendant is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the defendant’s current address.
If the court had not found that the terms of the tenancy agreement amounted to agreement by the tenant to accept service of proceedings at the property, further examination of rule 6.9(3) would have been required.
Asplin LJ indicated at paragraph 39 that since Ground 2 (dealing with CPR r 6.9(3)) was academic, the court did not consider it appropriate to address it, despite it having been argued “quite extensively” before the court. However, the court also expressed doubts about how these rules had been applied in the County Court judgments.
Where a tenancy agreement does not contain clauses allowing the landlord to serve proceedings at the property, if the tenant is believed not to be residing at the property landlords will need to consider rule 6.9(3) very carefully.
Robin Stewart and Sarah Cummins
I admire the tenacity of the tenant’s solicitors in this case. What intrigues me is how it was funded because there appears to have been no Legal Aid. In particular when the Government and MOJ appear to be moving towards representation lite housing Legal Aid where preventative work only is funded.