Entrenched tolerated trespassers  

Porter-v- Shepherds Bush Housing Association [2008] EWCA Civ 196

> judgment

This was a second appeal and before the district and circuit judge below, the tenant had sought to rely upon CPR 3.1 (the general power to abridge or extend time) to seek a declaration that his possession order had been discharged or rescinded after he had cleared all of his arrears of rent. This was against a background of a putative disrepair claim. Before the Court of Appeal he sought to add Payne-v- Cooper and arguments based on Art 8 ECHR. The appeal was dismissed on all grounds.

The three judges all gave judgments. LJ Pill and LJ Longmore held that Marshall should be followed.

LJ Pill sought to distinguish the orders on the basis of the existence of Section 85(3) Housing Act 1985 which requires the imposition of conditions, (despite the fact that the 1923 Act clearly provides a power to impose conditions and in a case of rent arrears it seems impossible to imagine a case where they would not have been imposed).Hence, his analysis proceeds on an incorrect premise that an unconditional order can no longer be converted into a conditional order – it plainly can for example in respect of an outright order for possession converted into a postponed order. LJ Pill also referred to the non-compliance point which was then stressed by LJ Longmore.

LJ Longmore suggested Payne could have been distinguished on the basis that the word discharge was not used in the order, (although in Payne Lord Evershed MR specifically stated that there was no distinction between the form used and the then County Court Form of order which is almost identical to the order in Marshall), that there was no equivalent of Section 82(2) Housing Act 1985 and that the court in Payne did not consider the impact of non-compliance with the conditions.

The problem with this analysis is that it requires the words in the order “When you have paid the total amount mentioned the plaintiff will not be able to take any steps to evict you as a result of this order “– to be completely rewritten by adding the words (only so long as you have paid every instalment on time or if you return to court to change the time period in which you have to pay them before you pay them all off!). It is hardly fair for a tenant not to be able to know what an order means other from its plain words.

LJ Sedley on the other hand stated that at this late date the court should follow its own recent jurisprudence although he was not at all sure that Marshall and Aston would have been decided as they were had Payne been brought to the courts’ attention. Moreover, he observed that there was a cogent argument that the legislation should be construed along the lines of Payne-v- Cooper to at least eliminate the Aston trap but that the Human Rights Act 1998 could not aid in respect of a 1997 possession order.

The Court of Appeal also rejected the arguments based on CPR 3.1 and Art 8 ECHR. Both LJ Pill and LJ Sedley aware as they were that leave to appeal had been granted to the House of Lords in Knowsley Housing Trust –v- White specifically stated that they hoped that the House of Lords would comprehensively review the situation. LJ Longmore stressed the need for the Court of Appeal to speak with one voice in the light of the earlier decisions.

To that end it should also be noted that leave to appeal to the House of Lords has been granted in London & Quadrant Housing Trust-v- Ansell and that it has been ordered to be conjoined with Knowsley Housing Trust –v- White and it is anticipated will be heard in October 2008.

Commentary by James Stark 19/3/08