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Routes of Appeal in Possession Claims

There has recently been a useful case dealing with the routes of appeal in a possession claim. The case in question is the London Borough of Southwark v. Ofogba [2012] EWHC 1620 (QB) which dealt with this point.

The background was that a claim was made by a local authority against a secure tenant based upon rent arrears. Initially the matter was compromised on terms that the possession claim was adjourned generally. The matter progressed with the Defendant not paying the rent and the instalments of rent arrears which were due; and the Defendant appointing new solicitors. As a result an application was made to the County Court to restore the proceedings.

The claim was restored and allocated to the multi track with permission for the Defendant to rely upon an amended Defence and Counterclaim and consequential directions given. The matter came on for trial and an Order was made giving a money judgement with the possession claim adjourned generally with permission to restore by a fixed date in the future.

The Defendant tried to appeal the terms of the Order lodging an Appellant’s Notice with the Court of Appeal and with the High Court. The Appellant pursued the Appeal in the High Court. Mr Justice Hichinbottom considered the matter and gave an assessment of the law relating to Appeals in possession proceedings generally.

To appeal direct to the Court of Appeal the claim must have been issued under Part 7 of the Civil Procedure Rules allocated to the multi track route. Until October 2001 possession claims were Part 8 claims but since then they have been treated as Part 7 claims. Further the decision appealed against must be a “final decision”.

As a result the Judge determined that the appeal against the money judgement was a matter relating to a “final decision” and that fell to be decided by the Court of Appeal. The decision in respect of adjourning the possession claim was not a “final decision” and could be dealt with by the High Court but in Mr Justice Hichinbottom’s opinion on the facts of this case this should also be transferred to the Court of Appeal under Rule 52.14(1)(b) of the Civil Procedure Rules.

The Judge also expressed some concern that the White Book is not as clear as it could be in connection with such appeals. (The White Book is re-printed annually and contains all the rules which are used by solicitors, barristers and judges governing procedures). He made clear that if there was a “final decision” whether made by a District Judge or a Circuit Judge and the other criteria applied (i.e. Part 7 claim allocated to the multi track) then the route of appeal is direct to the Court of Appeal. Further any decision of the County Court made on appeal (i.e. by a Circuit Judge from a District Judge) also lies directly to the Court of Appeal.

The case is useful in reminding everyone as to which Court an appeal lies. Care needs to be taken in ensuring that an appeal is made to the correct Court and consideration given to the route to follow. It is also often worth clarifying and making sure appropriate Directions regarding allocation have been made before the start of any trial so that no issue arises concerning the correct route to follow thus avoiding excessive costs or delays.

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