Defendant's application to set aside a possession order

The process a defendant must follow when applying to court to set aside an order made in possession proceedings.

This content applies to England & Wales

What is a possession order?

The court grants a possession order to give possession of a property to a landlord or mortgage lender who issues a possession claim against a tenant or borrower. The landlord or lender is called the claimant, and the tenant or borrower is the defendant.

The possession order requires the defendant to leave the property by a specified date. If the defendant does not leave, the claimant can apply for a warrant or writ of possession for Enforcement Agents (bailiffs) to evict them.

A possession order is the court’s final decision in the claim.[1] To change it, the defendant must apply to court:

  • to vary the order

  • to set aside the order

  • for permission to appeal

The court can suspend a possession order in some cases, to allow the defendant to show they can keep to regular payments or other terms. If the defendant breaches the terms of the suspension, the claimant can apply to court to enforce the order.  

Read more about the process for possession claims for tenants and mortgage borrowers.

When can the defendant apply to set aside a possession order?

A defendant can apply to the court that made the possession order to have it set aside if they can show they have grounds.[2] The defendant's grounds are normally that they had a defence to the possession claim, but they were not able to provide it to the court when the claim was decided.

The defendant can apply to set aside the possession order so the case can be heard again. This gives them a chance to defend the claim.

The defendant can apply to set the order aside at any point before they have been evicted. In some cases they can apply after they have been evicted.[3]

The Civil Procedure Rules contain the rules and practice directions for setting aside judgments and orders.

The grounds for setting aside the order can depend on whether the order was made:

  • at a hearing

  • at a trial

  • without a hearing, under the accelerated procedure

Different rules apply if the defendant applies to set aside a default judgment made in a money claim under Part 7 Civil Procedure Rules.

When the defendant must appeal

The defendant cannot apply to set aside an order because they disagree with the decision of the court. An application to set aside an order cannot be made as an alternative to an appeal.[4] The defendant can appeal a decision if the judge applied the wrong law, took account of irrelevant facts, or did not take account of relevant facts.

When the defendant can apply to vary an order

A defendant who wants to change the terms of an order can apply to court to vary it. This could include if the defendant can no longer afford the payments under a suspended possession order, or wants to delay the date for giving up possession.

A possession order can normally only be varied if it was made against a tenant on a discretionary ground, or against a mortgage borrower.

Apply to set aside a possession order made at a hearing

Most possession orders are made at a possession hearing, with the exception of orders made either at a trial, or without a hearing, under the accelerated procedure for section 21 claims.

A possession order is made at a hearing if it is made at the first hearing or an adjournment of that hearing. A trial only normally takes place if the defendant files a defence, and the court gives directions to allocate the claim to a track.[5] This enables the court to hear arguments and evidence from the claimant and the defendant. It is very unusual for the court to conduct a trial at the first hearing.

The test the court can apply when deciding an application to aside a possession order made at a hearing is less strict than that for setting aside a possession order made at a trial. The Court of Appeal has held that the courts can use their general case management powers and consider any relevant matter when deciding whether to set aside a possession order made at a hearing.[6]

Defendant failed to defend the claim or attend the hearing

The most common reason for a defendant to apply to set aside a possession order is that their circumstances prevented them from defending the possession claim. This could happen if the defendant did not receive the claim form, or they were not able to deal with it, because they were unwell or away from home when it was received.

The defendant has grounds to apply to set aside the possession order if the claim was not served correctly.[7]

The defendant should explain in their application to set aside the order:[8]

  • why they did not defend the claim in the first place

  • that they acted promptly when they found out a possession order had been made

  • that they have a defence with a reasonable prospect of success

The defendant can use a witness statement to explain the background and facts to the case and the reasons for their application to set aside the possession order.

Defendant attended the hearing

It is possible to apply to set aside an order made at a possession hearing, where the defendant did not have the opportunity to put forward their defence.[9] The Court of Appeal has said that this would normally require unusual or compelling factors.[10]

The other reasons for the court to set aside an order after the defendant has attended a hearing include:[11]

  • that there has been a material change in circumstances since the order was made

  • the facts on which the original decision was made had been misstated

  • a mistake on the part of the judge in making the order

Apply to set aside a possession order made at a trial

A defendant can make an application to set aside a possession order made at a trial if they were not able to attend the trial. Their application must explain that they:[12]

  • had a good reason for not attending the trial

  • acted promptly after the possession order was made

  • have a defence with a reasonable prospect of success

What counts as a good reason for not attending the trial is for the court to decide.

The Civil Procedure Rules do not define what is a prompt application. The judge dealing with the application must use their discretion. In one case, the Court of Appeal held that a delay of 28 days could not be justified.[13] In other cases, longer delays have been permitted if the court decides it is in the interests of justice to do so.

The judge can refuse the application if there has been a long delay that cannot be justified.[14]

The other reasons for the court to set aside an order after the defendant has attended a trial include:[15]

  • that there has been a material change in circumstances since the order was made

  • the facts on which the original decision was made had been misstated

  • a mistake on the part of the judge in making the order

Apply to set aside a possession order made under the accelerated procedure

The accelerated possession procedure can only be used to recover possession of a property let under an assured shorthold tenancy after the expiry of a section 21 notice.

When the possession order was made under this procedure without a hearing, the tenant has 14 days from receipt of the possession order to apply to the court to set aside the order. They do not have to show they had a good reason for not defending the claim, or that they acted promptly.[16]

The tenant can still apply to set aside the order after 14 days has passed, but they no longer have an automatic right. They must apply for relief from sanctions if they want the court to set aside the possession order and consider their defence.

How the defendant makes the application

The defendant can contact the claimant to find out if they agree to the possession order being set aside. If they do, the defendant can tell the court about the agreement in the application. They should include a draft order where possible.

Apply to court on form N244

The defendant applies to set aside an order on form N244. They must file their application at the court that made the possession order by posting it to court or hand delivering it to the court reception. Some courts accept applications by email.

The defendant must enclose the relevant fee, or a fee remission form with supporting evidence.  

Apply for relief from sanctions

An application to set aside an order that was made when the defendant did not submit their defence to court is called an application for relief from sanctions. The Court of Appeal has set out a three-stage test for judges to use when deciding applications for relief from sanctions.[17]

To show they can pass the test for applying for relief, the defendant must use their application or witness statement to explain:

  • that the possession order was made without the court seeing their defence

  • why they were unable to submit their defence at the time

  • what the impact of not having the order set aside would be on them and their household

Submit evidence to support the application 

The defendant’s evidence can be submitted in the form of a witness statement. Their witness statement provides the background and facts of the case. 

The defendant should use the witness statement to explain why they did not defend the claim when it was issued. If they did not receive a copy of the claim form they should provide evidence of this (for example because they were out of the country or the form was sent to the wrong address). 

The witness statement should state the steps the defendant has taken since they found out about the possession order. They should explain the reason for any delay in making the application. 

Apply to stay a warrant of possession

The application to set aside a possession order does not automatically prevent the defendant being evicted, if a warrant has been issued. The defendant must ask the court to stay the execution of the warrant of possession until the application to set aside has been decided. A stay of execution puts off the eviction until a specified date, or until a specified event has occurred.

The defendant can ask for the warrant to be stayed on the same form as their application to set aside the order. If the defendant is due to be evicted by a High Court writ of possession, they must make a separate application.

What happens when the court receives the application

The court normally sets a hearing to deal with the application. The court serves a copy of the defendant's application on the claimant with at least three days' notice of the hearing.[18]

A hearing might not be necessary if the:[19]

  • claimant agrees to the defendant's proposed order

  • claimant and defendant agree a hearing is not necessary

  • court decides a hearing is not necessary

The court refers to the defendant as the applicant and the claimant as the respondent.

The defendant must attend the hearing and be prepared to answer questions about their written evidence. If they do not attend, the court can decide the application in their absence.[20]

What happens after the possession order is set aside

After the court sets aside the possession order, it still needs to deal with the claim. It can give directions to the claimant and the defendant about what to do next. The directions usually include instructions to the defendant for filing their defence.  

It is very important to comply with the deadlines set by the court, or apply for an extension if more time is needed.  

The court can strike out the claim if it is satisfied the defendant provided enough evidence for it to make a summary judgment.[21] 

File the full defence 

The court's directions are likely to include instructions to file a defence to the claim and a witness statement setting out the facts of the case. They may also include a deadline for completing a directions questionnaire.  

The directions questionnaire contains information to allow the court to decide which track to allocate the claim to. In the County Court, the claim could be allocated to the: 

  • small claims track 

  • fast track 

  • multi track 

The small claims track is for money claims where the value is less than £10,000. 

The fast track is for most other claims, including possession claims.  

The multi track is for claims where there is a complex issue to be decided. The procedure is more complicated and the defendant could incur significant costs if the claim is allocated to the multi track. 

Warrant of possession is set aside

A warrant of possession that is due to be executed is automatically set aside if it has been made to enforce a possession order that is set aside.[22]

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Last updated: 17 February 2022

Footnotes

  • [1]

    Sangha v Amicus Finance Plc (2020) EWHC 1074 (Ch).

  • [2]

    r.39.3 Civil Procedure Rules; r.3.1(7) Civil Procedure Rules.

  • [3]

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

  • [4]

    Tibbles v SIG [2012] EWCA Civ 518.

  • [5]

    r.55.8(2) Civil Procedure Rules.

  • [6]

    r.3.1(7) Civil Procedure Rules.

  • [7]

    Grimason v Cates [2013] EWHC 2304 (QB).

  • [8]

    see Denton v White [2014] EWCA Civ 906 for the relief from sanctions test; r.39.3 Civil Procedure Rules.

  • [9]

    Forcelux v Binnie [2009] EWCA Civ 854.

  • [10]

    Hackney v Findlay [2011] EWCA Civ 8.

  • [11]

    Tibbles v SIG Plc [2012] EWCA Civ 518.

  • [12]

    r.39.3 Civil Procedure Rules.

  • [13]

    Bank of Credit and Commerce International v Zafar [2001] All ER (D).

  • [14]

    MacDonald v Thorn, The Times, 15 October 1999 (Court of Appeal).

  • [15]

    Tibbles v SIG Plc [2012] EWCA Civ 518.

  • [16]

    r.55.19 Civil Procedure Rules.

  • [17]

    Denton & Ors v White [2014] EWCA Civ 906.

  • [18]

    r.23.7(1)(b) Civil Procedure Rules.

  • [19]

    r.23.8 Civil Procedure Rules.

  • [20]

    r.23.11 Civil Procedure Rules.

  • [21]

    part 24 Civil Procedure Rules.

  • [22]

    r.70.6 Civil Procedure Rules.