The recent case of Abbotsley Limited v Pheasantland Limited [2025] EWHC 654 (KB) has reiterated the practical difficulty faced when seeking to obtain an 'early determination' of a possession case.
Background
The Claimant, Abbotsley, entered into a lease in 2003 in respect of the Holiday Chalet Land at Abbotsley Golf & Squash Club in Cambridgeshire ("the Chalet Land"). There are solid wooden lodges situated on the site. The Defendant, Pheasantland, took an assignment of the lease of the Chalet Land in December 2017 and thus Abbotsley and Pheasantland had the relationship of landlord and tenant.
A notice pursuant to section 146 of the Law of Property Act 1925 ("the section 146 notice), dated 3 January 2023, was served on Pheasantland alleging various matters including that various lodges were being occupied as permanent accommodation or used for commercial premises and that nuisance, damage and disturbance had been caused. The section 146 notice gave a month's notice for the remedying of the breaches and required compensation.
The claim and application
The claim for possession of the Chalet Land was issued on 22 May 2023 and Particulars of Claim were settled by leading and junior counsel and were accompanied by 155 pages of schedules. The Particulars and schedules were served on Pheasantland on 29 July 2003.
In response, on 29 September 2023, Pheasantland served a 14-page Defence settled by counsel with 401 pages of documents annexed to the Defence.
On 3 October 2023, Abbotsley made an application seeking:
- A possession order pursuant to the provisions CPR 55.8(1)(a) "because the claim is not disputed on grounds which appear to be substantial";
- Summary judgment pursuant to CPR 24 because the defendant had no real prospect of successfully defending the claim and there was no other compelling reason why the case should be disposed of at trial;
- An order striking out the Defence because it disclosed no reasonable ground for defending the claim or was an abuse of the court's process or was likely to obstruct the just disposal of the proceedings.
The prior hearings
In October 2023, the possession claim came before DJ Falvey sitting in Peterborough County Court. The hearing became a directions hearing and DJ Falvey listed the matter for 3 hours on 26 February 2024 notwithstanding that Abbotsley had only requested a two hour hearing.
In accordance with the directions set, Pheasantland filed and served a witness statement with 19 pages of exhibits and Abbotsley filed a 14-page witness statement in response with a further 35 pages in exhibits.
Skeleton arguments were provided by counsel for both sides (respectively 17 and 11 pages in length) in advance of the hearing together with a bundle of 852 pages.
The hearing took the full 3 hours and DJ Falvey reserved judgment.
DJ Falvey circulated a draft judgment on 31 May 2024, and at a hearing on 19 June 2024 delivered his judgment denying the application for summary judgment and possession. The judgment did not refer to the application for strike out.
On 18 July 2024, DJ Falvey expanded on the reasons for his determination and refused permission to appeal while extending time for the application for permission to appeal to the circuit judge.
The appeal
Abbotlsey sought permission to appeal and was granted permission on grounds 1 and 3:
- Ground 1 challenged the refusal to make an order for possession pursuant to CPR 55.8 without any further hearing and
- Ground 3 concerned the failure of DJ Falvey to consider strike out pursuant to CPR 3.4.
Ground 2 sought to challenge DJ Falvey's determination that the property which was the subject of the claim was residential accommodation for the purposes of CPR 24.2(b) so CPR 24 could not apply.
Ground 1
Ground 1 was rejected on two bases:
- CPR 55.8 provides that the Court may decide the claim or give case management directions at the hearing fixed in accordance with CPR 55.5(1) or at any adjournment of that hearing. The hearing in October 2023 was the date fixed for the hearing in accordance with CPR 55.1 and DJ Falvey gave case management directions at that hearing. Abbotlsey did not appeal the decision to give case management directions at that hearing and could not have a second bite of the cherry.
- Even if the February 2024 hearing was the first hearing, there were 53 pleaded breaches all of which were defended and the case was plainly not suitable for summary determination under CPR 55.8 even if that option had remained open to Abbotsley.
Ground 2
Ground 2 was rejected for, inter alia, similar reasons: the case was not one where there was no real prospect of successfully defending the claim. HHJ Karen Walden-Smith noted in paragraph 64 of her judgment, "The court has to take into account the evidence available and that which could reasonably be expected at trial, in this case including evidence from the lodge owners, and the court's role is not to simply accept on face value, and without analysis, the evidence put forward by the claimant."
Ground 3
Whilst permission to appeal was granted as the district judge had failed to consider strike out in his judgment, HHJ Karen Walden-Smith highlighted that Abbotsley would have had to establish that his decision not to strike out was one that no judge could reasonably have made on the basis of the submissions before him. HHJ Karen Walden-Smith noted in paragraph 82 of her judgment, "A strike out should only be granted if the court is certain that a claim is bound to fail and, in this case, the Defence discloses reasonable grounds for defending the claim. Further, this Defence is plainly not an abuse of process but an answer to the allegations made. Pheasantland is doing nothing more than defending its position and doing so in a proper way. In all those circumstances the strike out application was bound to fail."
Summary
This case acts as a further reminder that notwithstanding a party's belief as to the strength of its possession claim, the Court will be slow to make any early determination in respect of a possession claim in circumstances where there is a Defence that adequately pleads in response to the allegations made. A party considering the pursuit of the early determination of a possession claim must therefore give real thought as to whether the case is likely to be deemed to be suitable for any form of early determination.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
