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Setting aside a possession order

This content applies to England

An application can be made to set aside a possession order by a tenant (or mortgagor or leaseholder or licensee).

When an order is set aside then it is as if that order was never made. Any outstanding warrant of possession will automatically be set aside.[1] The court has the power to order a rehearing of the case or, if there are insufficient reasons to set aside, and the tenant has not already been evicted, to vary the order (for more information see the page on Varying or postponing a possession order).

The matters the court can consider in deciding whether to set aside a possession order will depend upon whether the order was made at a 'trial' or not (see below). In addition there are particular provisions for an order made under the accelerated possession procedure.

An application can be made in some circumstances even after the tenant has been evicted.[2] (For more information about actions that can be taken after eviction see the page on After eviction).

Applications

Applications should be made using Form N244. There are detailed guidance notes accompanying the form to assist in its completion. The application should set out the information the tenant wants the court to take into account (see question 10 on form N244), this can be provided in either

  • a witness statement
  • a statement of the case, or
  • written evidence.

An application to set aside a possession order will not have the effect of automatically suspending a warrant for possession. If a warrant is due to be executed prior to the hearing of an application to set aside, an application to suspend or stay the warrant should also be made on the same N244 form.

Was the possession order made at a trial?

Most courts hear a number of possession claims during a morning or afternoon session. Typically the court will make a decision on a possession claim in a 5 to 10 minute hearing. The Court of Appeal has held that such hearings do not constitute a 'trial'.[3]

The Court considered that there will normally be a trial only if the case is not decided at the first hearing, but at a subsequent hearing with evidence and argument from both landlord and tenant. The first hearing in such cases will need to be adjourned. At that hearing, where the claim is genuinely disputed on grounds which appear substantial, case management directions are to be given, including allocation to a track.[4] The aim of such directions must be to enable the court to make a final decision about the claim. When the case returns to court following the case management directions there will be a full trial. The Court considered that only in exceptional cases there would be a trial at the first hearing of a possession claim.

Setting aside a possession order made at a trial

If the possession order was made at a trial then the tenant must satisfy the three-stage test set out in Civil Procedure Rule (CPR) 39.3. The court can only set aside a possession order if the tenant failed to attend the trial, and

  • has acted promptly after finding out that the possession order was made, and
  • had a good reason for not attending the trial, and
  • has a reasonable prospect of success at the trial.

There are no definitive guidelines of what constitutes 'acting promptly' or a 'good reason' for not attending the trial: this will vary depending on the particular circumstances. The prospects of success will depend both upon the facts of the case and the ground upon which possession was sought, in particular whether the ground relied upon was mandatory or discretionary.

Unless all three stages of the test are satisfied the court cannot set aside the possession order.

Setting aside a possession order not made at a trial

If the order was not made at a trial (see 'Was the possession order made at a trial?' above) the court can use its general powers of case management[5] and consider any relevant matter in determining whether it will be just to set aside the possession order. CPR 3.9 sets out a useful guide to the matters the court can consider. These include:

  • the interests of the administration of justice
  • whether the application for relief [to set aside] has been made promptly
  • whether there is a good explanation for the failure to attend the possession hearing (including, any issues relating to valid service of notice of possession proceedings[6])
  • the effect the setting aside the order would have on each party
  • the evidence.

However, in the absence of any compelling or unusual factors the court should apply the three-stage test set out in Civil Procedure Rule (CPR) 39.3 (see above).[7]

Accelerated possession procedure

The accelerated possession procedure can only be used to recover possession of an assured shorthold tenancy after the expiry of a section 21 notice. When the possession order was made under this procedure on the papers, ie without a hearing, the tenant has 14 days from receipt of the possession order to apply to the court to set aside the order.[8]

More information can be found on the page on Accelerated possession procedure.

To apply to set aside or to appeal

If a tenant did not attend the hearing s/he cannot achieve by the backdoor of an appeal what could not be achieved or which the tenant had failed to achieve by way of an application to set aside.[9]

However, there may be distinct grounds, unconnected with the applicant's absence from a trial, on which an applicant may be allowed to appeal, even if the applicant had or would have failed in an application under CPR 39.3 and, in such a case, the applicant's position is no different in principle from any other litigant.[10]

Nevertheless there may well be practical difficulty in introducing new arguments or evidence that could have been presented at a trial which the applicant failed to attend. The Court of Appeal has set out the criteria to be met regarding the use of fresh evidence in an appeal:[11]

  • that the evidence could not have been obtained with reasonable diligence at the time of the hearing

  • that the new evidence would probably have an important influence on the result of the case, though it need not be decisive, and

  • that the evidence must be credible, though it need not be incontrovertible.

[1] CPR 70.6.

[2] Governors of Peabody Trust v Hay (1987) 19 HLR 145, CA.

[3] Forcelux Ltd v Binnie [2009] EWCA Civ 854.

[4] para 32, Forcelux Ltd v Binnie [2009] EWCA Civ 854.

[5] CPR 3.1.

[6] Grimason v Cates [2013] EWHC 2304 (QB); CPR 6 - Service of documents.

[7] Hackney v Findlay [2011] EWCA Civ 8.

[8] CPR 55.19.

[9] Bank of Scotland v (1) Pereira (2) Pain (3) Pain [2011] EWCA Civ 241.

[10] Bank of Scotland v (1) Pereira (2) Pain (3) Pain [2011] EWCA Civ 241.

[11] Ladd v Marshall [1954] 1 WLR 1489 CA.

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