THE RENT ARREARS PREACTION PROTOCOL & GROUND 8 CLAIMS
A recent case, which involved us appealing a County Court District Judge's decision, has again raised questions concerning the use of Ground 8 as a mandatory possession ground and the Court's power to adjourn.
Until the Court of Appeal decision in North British Housing v Matthews in December 2004, there was an assumption among some practitioners that the Court had an inherent power to adjourn a possession claim and that this could be exercised where a tenant was awaiting a housing benefit determination.
Matthews clarified the position stating that a Court cannot adjourn unless exceptional circumstances apply - these do not include housing benefit delays or maladministration.
Since the Matthews case the rent arrears pre-action protocol has been introduced (in October 2006) and sanctions for a landlord's failure to comply with the protocol include in certain circumstances, the power to adjourn.
How does this affect, if at all, the Matthews decision?
In this case, we issued a possession claim on behalf of one of the leading registered social landlords in the Yorkshire area. The claim was brought on multiple grounds.
There had been a long history of antisocial behaviour by the tenant leading to a notice seeking possession on Grounds 12 and 14 being served. The antisocial behaviour continued but, in addition, rent arrears accrued and a second notice was served on Grounds 8 and 10.
Possession proceedings were issued claiming possession on Grounds 8,10, 12 and 14 and it was specifically pleaded that if, at the date of the hearing, at least eight weeks rent should be outstanding, then the claimant would seek possession under Ground 8 - the mandatory rent arrears ground.
At the hearing, the rent arrears were in excess of £1,600. We claimed possession relying on Ground 8, drawing the Court's attention to the pleadings, evidence of service of the notice and the current arrears.
On behalf of the defendant, his solicitors argued that the rent arrears pre-action protocol applied, the claimant had failed to comply with the protocol and therefore under paragraph 14 of the protocol the Court had the power to adjourn.
It was argued that housing benefit determination was awaited and the Court should therefore adjourn.
In spite of our arguments to the contrary, the Court accepted that the protocol applied and duly adjourned. We appealed to a County Court Circuit Judge.
In the course of the appeal hearing, a number of arguments arose and were duly dealt with by the Judge. The judgement was delivered a couple of days later.
In brief, the Appeal was upheld, the Court finding that the protocol did not apply and Matthews was a binding authority; there were no exceptional circumstances and so the Court should not have adjourned.
The judgement included the following:
Was it open to a claimant to serve two separate notices seeking possession containing different grounds and to rely on both of these in the possession claim?
The Appeal Judge held that this was perfectly proper and supported by the authority of City of London -v- Devlin, a 1995 case.
At the hearing, should the claimant have abandoned the other possession grounds and sought to rely solely on Ground 8?
The Appeal Judge found that the claimant was entitled to rely on all four grounds in the hearing before the District Judge.
However, as a matter of good practice it was appropriate to deal with Ground 8 as a preliminary issue.
DID THE RENT ARREARS PREACTION PROTOCOL APPLY TO THE PROCEEDINGS?
The claim was brought on grounds which included grounds other than arrears. In the first paragraph of the aims and scope of the protocol, it is stated that the protocol applies to residential possession claims brought by social landlords which are based solely on claims for rent arrears. The protocol therefore did not apply in this claim.
Even if the other grounds had been abandoned at the hearing before the District Judge this would not retrospectively have applied the protocol.
The decision in Matthews pre-dated the rent arrears pre-action protocol but is not affected by the protocol and so when a claimant relies on the mandatory arrears ground, the Court can only adjourn in exceptional circumstances as described in Matthews.
It was found that the District Judge had been wrong in law to find that the protocol applied and wrong to adjourn to allow time for housing benefit to be determined.
The claim was remitted to the County Court to be dealt with upon Ground 8 and an outright Possession Order was duly made.
One issue, which did not arise in relation to the appeal, was whether the result might have been different if the claim had been brought solely on Grounds 8 and 10.
The claim would then have been brought solely on grounds of arrears and so the protocol would have applied.
In paragraph 14 of the protocol, it is stated that if the landlord unreasonably fails to comply then the Court can impose one or more of the following sanctions.
- An Order for costs
- In cases other than those brought solely on mandatory grounds, adjourn, strike out or dismiss the claim.
The wording here suggests that if there are mandatory and discretionary grounds, eg 8 and 10, then the Court may have power to adjourn, strike out or dismiss.
Nevertheless, where a claimant can establish Ground 8, the Court should follow the decision in Matthews and only adjourn in the exceptional circumstances mentioned in that case.