A Circuit Judge has ruled that an order for possession made under Ground 8 Schedule 2 Housing Act 1988 be set aside because the notice sent to the tenant omitted certain words in reciting the statutory ground relied upon. Ground 8 is a ground for possession available to certain landlords when arrears of rent are seriously high (usually 2 months or more). Where this ground applies, the Court usually does not have the power to refuse to make the possession order (although there are numerous ways of defeating a Ground 8 claim).
HHJ Worster sitting in The County Court at Birmingham also found that tenant eviction company Remove A Tenant had acted in breach of the Legal Services Act (LSA) 2007, or had come perilously close to so doing, in conducting litigation when not authorised.
The consequence of this case is that the Defendant who was represented by Solicitor-Advocate Ranjit Bains from CLP and barrister Michael Singleton (St Ives Chambers) under the legal aid scheme has retained her family home.
CLP was instructed two days before the possession order was to expire whereupon emergency legal aid was granted. The case had already been transferred to the High Court. CLP settled the grounds of appeal and sought an urgent stay of execution the afternoon before the order was to expire. At a later on notice hearing before Mr Sweeting QC, Deputy High Court Judge, the Defendant, represented by Ranjit, was given permission to appeal on grounds relating to an abuse of the court’s process and a defective section 8 notice. Permission was refused in relation to bringing a counterclaim for housing disrepair.
The final appeal hearing was listed for 6 July, about 3 weeks after permission was granted, and days before the final hearing there was a contested application for disclosure and for attendance of the landlord’s witnesses to attend for cross examination. An order for disclosure against Remove A Tenant was granted without notice and the next day, the court having given the landlord and Remove A Tenant permission to be heard, the court varied the disclosure order and made an order that the witnesses attend for cross examination.
Mr Singleton persuaded the court that the appeal should be allowed and Aaron Walder of Landmark Chambers (instructed by Martyn Liberson of Elms Gilmore Liberson) successfully argued that, even if there had been a breach of the LSA 2007, the claim should not be struck out.
The case highlights the importance of tenants getting advice as soon as possible and the availability of legal aid for defending possession cases, even after an order has been made. It also shows the importance of carefully scrutinising the notice of seeking possession when representing tenants and raises an interesting question as to the appropriate sanction where there has been an arguable breach of the criminal law in the course of litigation.
The approved judgement is available here
 A Section 8 Notice is a form of notice seeking possession that landlords must usually serve on tenants under Assured or Assured Shorthold tenancies before applying to the court for an order for possession. This is different to where an Assured Shorthold Tenancy has been brought to an end by service of a s21 notice which is a separate form of notice entirely.