Nick and Serena, instructed by Stephen Akpan and Fabian Peter of LB Brent’s Legal Services were successful in resisting an appeal by Amer Hajan on a procedural point, which turned on the construction of the word ‘proceedings’ in the Housing Act 1985, ss. 83ZA and 83A.
The CA today handed down judgment in Hajan v LB Brent [2024] EWCA Civ 1260.
The facts of the case were that LB Brent issued a claim for possession against their tenant, Mr Hajan on Grounds 1 and 2; principally on the basis that he caused £100,000 worth of damage to LB Brent’s civic centre. Grounds 1 and 2 are reasonableness grounds. After issue of the Claim, LB Brent received the Certificate of Conviction of Mr Hajan for an offence of destroying or damaging property, contrary to the Criminal Damage Act 1971, s. 1. That conviction gave rise to an absolute ground for possession under HA85, s. 84A. Pursuant to s. 83ZA, LB Brent served a Notice of Seeking Possession on Mr Hajan informing him of its intention to bring proceedings for possession against him on an absolute ground and informing him of his right to request a review of that decision. He did not request a review and after expiry of that Notice LB Brent applied to amend the extant claim to include a claim on the absolute ground. A DDJ allowed LB Brent’s application. Mr Hajan appealed on the basis that on a statutory interpretation of ss. 83ZA and 83A, the claim on the absolute ground could not be added to an extant claim because the ‘proceedings’ were not begun after the expiry of the s. 83ZA notice. The appeal came before HHJ Luba KC who leapfrogged it to the CA without himself making any decision.
The Court accepted Nick and Serena’s submission that the appeal turned on the meaning of the term proceedings for the purposes of ss. 83ZA and 83A [48] and when proceedings are begun for the purposes of those sections? The Court agreed that the meaning of the term proceedings is not immutable but depends on the statutory context in which it is used [49]. The Court adopted Nick and Serena’s submission as to the meaning of the term proceedings in ss. 83ZA and s. 83A as including an amended claim based on an absolute ground [57]. The Court made this finding to give effect to the statutory purpose of the introduction of the absolute grounds; i.e. to expedite eviction of the most anti-social tenants and to bring faster relief to victims [38] and to give effect to the policy of the CPR [55]. The Court found that where an extant claim is amended to include a claim based on an absolute ground the proceedings in reliance of that absolute ground begin on the date on which the amendment takes effect [58].
Because the DDJ had not fixed a date for the amendment of the original claim to take effect, the Court also allowed LB Brent’s cross-appeal to vary the Order of the DDJ to provide that the amendment took effect from the date of his Order [53] and [59].
The Court criticised Mr Hajan’s interpretation of the term proceedings as wasteful of costs, court time and resulting in unnecessary duplication of effort [55].
The CA heard another appeal at the same time: Kerr v Poplar HARCA which also concerned the absolute grounds for possession. The issue in Kerr was whether the Court, in exercise of its powers under Housing Act 1988, s. 9 (and HA85, s. 85) could have regard to an absolute ground for possession that had arisen after a suspended possession order (SPO) had been made? The Court, interpreting HA88, s. 9 (and HA85, s. 85) held that a landlord could rely on and the Court could have regard to an absolute ground that had arisen after the making of the SPO: [91].