Kenny and Others v Abubaker and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Etherton,Lady Justice Hallett,Dame Janet Smith |
| Judgment Date | 23 October 2012 |
| Neutral Citation | [2012] EWCA Civ 1962 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2011/2319 |
| Date | 23 October 2012 |
[2012] EWCA Civ 1962
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EDMONTON COUNTY COURT
(HER HONOUR JUDGE GILLIAN GRASSE)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Hallett
Lord Justice Etherton
and
Dame Janet Smith
Case No: B5/2011/2319
Mr Dean Underwood and Mr Leon Glenister (instructed by Trowers & Hamlin Llp) appeared on behalf of the Appellant.
The First Respondent and Second Respondents appeared in person.
This is an appeal from the order of HHJ Gillian Grasse, sitting in the Edmonton County Court, dated 10 August 201By that order she dismissed the appeal from the order of District Judge Silverman dated 25 June 2010, itself dismissing the appellant's application to set aside the judgment of the District Judge of 20 November 2009, giving judgment to the claimants, who are the respondents, for £8,186.80. That sum comprised £6,900, representing three times a tenancy deposit, pursuant to the Housing Act 2004 ("the 2004 Act") section 214(4).
The issue on this appeal, as it was before the Judge and the District Judge, is whether or not the appellant has a right to have the judgment on the merits of the claim set aside pursuant to CPR 27.11. That rule is as follows:
"27.11
(1) A party –
(a) who was neither present nor represented at the hearing of the claim; and
(b) who has not given written notice to the court under rule 27.9(1),
may apply for an order that a judgment under this Part shall be set aside and the claim re-heard.
(2) A party who applies for an order setting aside a judgment under this rule must make the application not more than 14 days after the day on which notice of the judgment was served on him.
(3) The court may grant an application under paragraph (2) only if the applicant –
(a) had a good reason for not attending or being represented at the hearing or giving written notice to the court under rule 27.9(1); and
(b) has a reasonable prospect of success at the hearing.
(4) If a judgment is set aside
(a) the court must fix a new hearing for the claim; and
(b) the hearing may take place immediately after the hearing of the application to set the judgment aside and may be dealt with by the judge who set aside the judgment.
(5) A party may not apply to set aside a judgment under this rule if the court dealt with the claim without a hearing under rule 27.10."
In particular, the issue is whether or not the appellant had a good reason for not attending or being represented at the hearing of the merits of the claim for the purposes of CPR 27.11(3)(a).
The factual background may be briefly and simply summarised as follows. By a lease agreement dated 14 December 2005 the appellant let the premises at Flat 509 Omega Buildings, Smugglers Way, Wandsworth SW18 1AZ ("the flat") to Big Red Property ("BRP"). The flat is a three-bedroom apartment on the fourth floor of Omega Buildings. The appellant says that Mr Sajit Abubaker, who is a co-defendant with the appellant in the proceedings, is the owner or a director of BRP. BRP, it will be noticed, does not appear to be an incorporated body.
The respondents entered into possession of the flat in about March 2008. There was evidence that Mr Abubaker sent to the respondents the template of an agreement for a tenancy of the flat, and that on about 31 March 2008 the respondents signed an agreement for an assured shorthold tenancy of the flat and returned it to Mr Abubaker. It appears that they never retained a copy of the signed agreement, and Mr Abubaker never sent them a copy. It is unclear, therefore, who or which entity was named as the landlord. At about the same time, the respondents paid £4,353.33 either to Mr Abubaker or to agents, that sum including a deposit of £2,300.
In circumstances which it is not necessary to describe, the respondents left the flat on about 8 September 2008. They ceased to pay rent from that time. The evidence is that the tenancy was surrendered on about that date.
From about 12 August 2008 the respondents were in correspondence with both Mr Abubaker and the appellant for the return of the tenancy deposit. The deposit has never been repaid. There is no evidence that it was ever dealt with in accordance with an authorised scheme, as required by the 2004 Act section 213.
Proceedings were commenced on 12 January 2009 by Mr Samuel Kenny, one of the respondents. The other respondents were added later as co-claimants. The proceedings were commenced in the Northampton County Court for recovery of three times the deposit, in accordance with the 2004 Act section 214(4), in the amount of £6,900 plus interest. The defendants to the proceedings were the appellant and Mr Abubaker. The Particulars of Claim endorsed on the claim form described them as "having acted as agent and landlord respectively"; that is to say, as I understand it, referring to Mr Abubaker as the agent and to the appellant as the landlord.
The appellant filed an Acknowledgment of Service, indicating that he intended to defend all of the claim. He served a defence dated 1 March 2009, in which he said as follows:
"I hereby state and confirm that the claimed amount has never been paid or received by me.
The property in question is managed by the agents Foxton's, Avery, and Big Red Property.
Furthermore I have been informed that the Occupiers left without giving the appropriate notice and furthermore the property was left in a dirty condition and that some of the furniture has been either removed without permission or damaged.
Any requests if any for the return of the deposit would have been forwarded to the respective agents to act upon and deal with in the appropriate manner.
In addition we have informed that the rent is in arrears and the tenants vacated without giving the appropriate notice and therefore any monies due should have been deducted from any deposit received.
The damages are being assessed and an appropriate counterclaim will be submitted shortly."
On 1 June 2009 District Judge Morley made an order in the Edmonton County Court allocating the claim to the small claims track. On 31 July 2009 District Judge Morley joined the second respondent, Ms Jennifer Watson, and the third respondent, Mr Elliot Witham, to the proceedings as claimants, and also joined Avery Property Co. Limited ("Avery") as third defendant. Avery is mentioned in the defence as one of the agents managing the property. Avery is also named in the lease from the appellant to BRP as the company which was to receive the rent from BRP, that is to say it was to receive the rent as the appellant's agent. District Judge Morley also gave directions for the hearing of the claim on 20 November 2009, including an order requiring the defendants to attend with a copy of the respondents' tenancy agreement and copies of all documents relating to the deposit.
The claim was heard by District Judge Silverman on 20 November 2009. Neither the appellant nor any of his co-defendants attended court for the hearing of the claim. District Judge Silverman gave judgment for the claimants for £8,186.80, as I have said.
On 11 December 2009 the appellant delivered to the court an application to set aside the judgment, but he did not pay the fee for his application until 16 December 2009. The consequence of that was that the application of the appellant to set aside the judgment was two days outside the 14 day time limit specified in CPR 27.11(2).
On 10 February 2010 District Judge Morley gave directions for the hearing of the appellant's application, and ordered that the appellant produce evidence of the contractual relationship with the other defendants at the hearing of the application.
District Judge Silverman heard the appellant's application on 25 June 2010. He said that the application was one pursuant to CPR 27.11. As I have said, he dismissed the application. His reasoning was that the appellant had failed to satisfy the requirement in CPR 27.11(3)(a) of showing that he had a good reason for not attending the hearing of the claim. The District Judge said as follows:
"3. My ruling is this: that the judgment was given by me at the hearing on 20 November 2009. The application to set aside the judgement was made on 16 December 2009, being the date on which the application notice fee was paid. That is more than 14 days after the date of the hearing.
4. The court may grant that application nevertheless, but it is only if the applicant had a good reason for not attending. In my view where, as I have indicated, Mr Fernandes was named as a defendant he could not abrogate his responsibilities to another defendant, particularly one with whom he was in conflict himself, and therefore failing to attend for that reason is not, in my view, a good reason.
5. Accordingly Mr Fernandes does not come within rule 27.11 and accordingly the judgment will not be set aside.
6. The application of Mr Fernandes is refused on the basis that he did not have good reason for failing to attend the final hearing. The case is therefore dismissed."
The appellant appealed, as I have said, to HHJ Grasse. She held that the District Judge did not have any discretion under CPR 27.11 since the appellant had failed to comply with the time restriction in CPR 27.11(2), his application being two days out of time. She went on, nevertheless, to consider whether the District Judge had been entitled to reach the conclusion that the appellant did not have a good reason for not attending or being represented at the hearing of the claim. She concluded that District Judge Silverman was not only entitled to reach the...
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