Social Housing Speed Read – The Finality of Possession Orders

Facts

In July 2015, Amicus Finance Plc (“Amicus”) loaned Mr Sangha some £550,000; this loan was secured over a property. Mr Sangha defaulted on the loan repayments and Amicus issued possession proceedings.

In January 2017, the Court made an order requiring Mr Sangha to give up possession of the property; Mr Sangha represented himself at the hearing. In breach of the Court order, Mr Sangha failed to give up possession of the property and subsequently, Amicus applied for a warrant of possession.

Mr Sangha applied to suspend the warrant of possession and following this, applied to set aside the possession order on the basis that he had received further legal advice and had become aware of a potential defence. The Court dismissed Mr Sangha’s application and emphasised the importance of finality. The Court expressed concerns that if Mr Sangha’s application had succeeded, this may give carte blanche to parties who do not initially obtain legal advice and later seek to appeal an order upon receiving legal advice. Mr Sangha appealed to the High Court.

Judgment

The Court dismissed Mr Sangha’s appeal and rejected the argument that a possession order was not a final order; the Court held that it was irrelevant that Amicus had not yet executed the order.

The Court held that in order to successfully challenge a final order, it is not enough to merely demonstrate that there was a change in circumstances or alternatively, the facts had been misstated at the time the original decision was made. The Court further held that “the importance of finality is a critical consideration” and further, the circumstances in which the Court may deem it appropriate to set aside a final order is likely to be “very rare“.

It is noted that Mr Sangha attempted to argue that because he was not represented at the initial hearing, this could be deemed as ‘non-attendance’. The Court rejected this argument and held that attendance at a hearing is a “binary issue” – the individual is either in attendance or they are not.

Comment

This case demonstrates that the circumstances in which the Court may consider it appropriate to set aside a possession order are rare. Further, the fact that an individual is not legally represented at a hearing, is not sufficient to discharge this burden. This is a welcome decision, particularly in light of the hurdles that must be overcome in order to obtain an order for possession.

If you have any questions on the above and how it will affect social housing providers, or any other questions as a social housing provider, please do not hesitate to contact John Murray or a member of our expert Social Housing Team.