Deciding possession claims at the first hearing

In Global 100 Ltd v Kyselakova & Ors (transcript here) the court considered the test under CPR 55.8, namely, is the possession claim “genuinely disputed on grounds which appear to be substantial”.

The decision is at county court level and therefore not binding, but the judge, HHJ Luba QC, was one of the best-known housing silks at the Bar and his judgment therefore carries significant interest.

The judge said the threshold in CPR 55.8 was “relatively low”, giving the following reasons:  

1. the test is not whether the claim is disputed on grounds which are substantial, but whether the claim is disputed on grounds which appear to be substantial. In other words, it is not necessary for the court to determine that the grounds of dispute are in fact substantial;
2. CPR 55.7 (3) gives a defendant the right to take part in the hearing even if they have not filed a defence. Thus, the rules contemplate the court considering whether a defendant has surmounted the threshold on the basis of the Defendant’s assertions alone. 

Conversely, the judge noted the comment of Lewison LJ in the 2016 CA case of Birmingham City Council v. Stephenson (transcript here), that merely filing a defence does not satisfy the test in CPR 55.8. Thus, a possession claim may be summarily decided even if a defence has been filed.

In practice, summary disposal after a defence has been filed is only likely to occur if the possession claim has been brought on mandatory grounds. If the grounds relied upon are discretionary, the court is required to consider whether a possession order would be “reasonable”, and that is a fact-sensitive issue unlikely to be capable of determination on written evidence alone in the course of a short first hearing.