Richmond v Kensington and Chelsea, Court of Appeal - Civil Division, February 15, 2006, [2006] EWCA Civ 68,[2006] 1 WLR 1693

Resolution Date:February 15, 2006
Issuing Organization:Civil Division
Actores:Richmond v Kensington and Chelsea

Case No: B2/2005/0879

Neutral Citation Number: [2006] EWCA Civ 68





CL 255093

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Wednesday, 15th February 2006

Before :





- - - - - - - - - - - - - - - - - - - - -

Between :

- - - - - - - - - - - - - - - - - - - - -

(Transcript of the Handed Down Judgment of

Smith Bernal WordWave Limited

190 Fleet Street, London EC4A 2AG

Tel No: 020 7421 4040 Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -

Mr Zia Nabi (instructed by Miles & Partners) for the Appellant

Mr Ranjit Bhose (instructed by The Director of Law and Administration for the Royal Borough of Kensington and Chelsea) for the Respondent

- - - - - - - - - - - - - - - - - - - - -


Lord Justice Buxton :

  1. This is an appeal from a preliminary ruling by Her Honour Judge Diana Faber in possession proceedings brought by the Royal Borough [the borough] as landlords against their tenant, Mr Richmond. The ruling was made on a short but far from straightforward point that arose with little prior warning to the judge, and in the midst of a large and busy list. We have been able to consider it at the greater length appropriate to appellate work, assisted by the excellent arguments of Mr Nabi and Mr Bhose.

    The development of the case

  2. The borough sought possession of Mr Richmond's secure tenancy of a flat owned by them on the ground that he was causing a nuisance to and harassing his neighbours, within the terms of Ground 2 in Schedule 2 to the Housing Act 1985 [the Act]. The allegations were of behaviour that, if it had taken place, exposed other tenants of the borough to a quite unacceptable type and level of interference with their daily lives. The application came before HH Judge Collins on 17 December 2003. After hearing counsel for both parties he made the following order (the text of which has been amended by agreement to remove two misprints)

  3. Order for possession 28 days suspended so long as Defendant complies with terms of Tenancy Agreement relating to his behaviour

  4. No warrant to issue without permission of Circuit Judge

  5. Order possession to remain in existence until 17 December 2004. Permission to Claimant to apply for extension.

  6. The meaning and implications of this order are a matter of dispute in this appeal. At this stage I would make only two comments about it. First, since the judge made the order, he must have been satisfied of some at least of the allegations brought against Mr Richmond. Second, the suspension of the order granting the borough possession is a very common term of possession orders in cases of secure tenancy; as, we understand, is also the putting of a finite time-limit on the currency of the order. The purpose of the latter provision is to avoid the tenant having the threat of possession hanging over him indefinitely, with the effect that he would be at least potentially liable to lose his tenancy should he commit any breach of his covenants however many years after the original order.

  7. The borough contended that Mr Richmond did indeed breach the terms of his tenancy after 17 December 2003, and thereby broke the terms of the suspension of Judge Collins' order. They sought to return to court for permission to issue a warrant for possession under the terms of clause 2 of that order. It proved difficult to contact Mr Richmond in order to notify him of any proceedings, and there was also difficulty, responsibility for which it is not necessary to determine, in securing a date at the county court. The application, issued on 1 November 2004, sought the following order:

    The Claimant is permitted to issue a warrant for possession of land. If the index application and/or execution is not dealt with before 17.12.04 the Suspended Order is extended for a period of 6 months

    Mr Bhose tells us, and though we have no evidence on the point I would take it from him, that a significant concern of the borough was that it might be argued against them that any application under Judge Collins' order had to be finally determined, and not merely moved or heard, by the date for expiry of the order of 17 December 2004. That was why an extension of the currency of that order was sought, under the liberty to apply given in clause 3 of that order, and that was why the circumstances in which the order was sought were explained as they were in the borough's application.

  8. The application came on before HH Judge Mackie QC on 10 December 2004. The case was in a most unsatisfactory state. The judge had no papers, and Mr Richmond was not present, there being no evidence that his absence was contumacious. There is no note of any judgment by the judge, and in the circumstances he probably and understandably did not deal with the matter with any degree of formality. However, it is not difficult to reconstruct the features of the case that would have impressed themselves on the judge, as they would upon any judge; and the course that he decided to take, again as any judge would have done. The important factors in the case were, first, that Mr Richmond was in peril of losing his home, but was not present to defend himself; but, second, that the borough had an important interest in their claim being properly heard, both as landlords and, even more importantly, in the interests of their other tenants who, they alleged, were being harassed unreasonably by Mr Richmond. The judge would, therefore, have sought to hold the position until the matter could be properly tried. He ordered in the following terms:

  9. The suspended order for possession be extended for further 6 months

  10. The application for Warrant for Possession be adjourned.

    That order was plainly intended to enable the borough to move its application for a warrant under the possession order at a future date, while in the meanwhile ensuring that that objective was not frustrated by the limit on the currency of the possession order imposed by clause 3 of the order of Judge Collins.

  11. Would that it...

To continue reading