Defending section 21 possession claims - useful tips on limitation

There have been promises to abolish no-fault eviction. Unfortunately, section 21 Housing Act 1988 is still with us for now. In a recent case I have been working on alongside Cara Hall and Laura Binger at Citizens Advice Shepway, we have identified a helpful argument for defending section 21 proceedings on the basis of limitation. The argument is that, for limitation purposes, a section 21 claim is begun when the claim form is issued by the court, not when the claim form is delivered to the court. This means that any claim delivered to court right up against limitation and issued after limitation will be time barred.

Section 21(4D) Housing Act 1988 provides (emphasis added):

Subject to subsection (4E), proceedings for an order for possession under this section in relation to a dwelling-house in England may not be begun after the end of the period of six months beginning with the date on which the notice was given under subsection (1) or (4).

Accordingly, in determining whether a section 21 claim has been brought in time, it is necessary to determine (i) when notice was given, and (ii) when the proceedings were begun. This post is concerned with determining when proceedings are 'begun'.

CPR 7.2 provides that proceedings are started when the court issues a claim form at the request of the claimant. A claim form is issued on the date entered on the form by the court.

However, Practice Direction 7A at paragraph 5.1 provides

Proceedings are started when the court issues a claim form at the request of the claimant (see rule 7.2) but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is “brought” for the purposes of the Limitation Act 1980 and any other relevant statue on that earlier date.

This poses the question: for the purposes of section 21(4D) Housing Act 1988, are proceedings 'begun' when the claim form is issued or on the earlier date when the claim form is received by the court? There is no case law directly on the point. However, case law in other contexts supports an argument that under section 21(4D) a claim should be treated as begun when the claim form is issued.

Most practitioners will be familiar with the case of Barnes v St Helens Metropolitan Borough Council [2006] EWCA Civ 1372, which is commonly relied upon for the proposition that, for limitation purposes, the relevant question is when a claim form was delivered to court, not when it was issued. However, it is worth taking a second look before assuming this applies in the context of section 21(4D) Housing Act 1988.

In Barnes v St Helens MBC, PD7A para 5.1 was applied in relation to a claim to which the Limitation Act 1980 applied. The relevant question under the Limitation Act 1980 was when proceedings were 'brought'. In the course of their judgment, the Court of Appeal considered a number of cases, including the case of Salford City Council v Garner [2004] EWCA Civ 364. 

In Salford CC v Garner the Court of Appeal determined when proceedings where ‘begun’ for the purposes of statutory provisions in Part V of the Housing Act 1996 dealing with introductory tenancies. The Court of Appeal concluded that there was a distinction between when proceedings were ‘brought’ and when proceedings were ‘begun’. Proceedings were not 'begun' until they were started under the CPR, which (as per CPR 7.2) was when the claim form was issued. As Maurice Kay LJ stated at paras 34-35:

... Mr Moore draws attention to para [5.1] of the Practice Direction... Mr Moore submits that the present situation is analogous to that specific provision which is based on the Limitation Act and the wording of when a claim is 'brought'.

In my judgment, there is no such analogy. That specific provision is... based on earlier authority decided in the context of the bringing of proceedings for the purposes of the Limitation Act. Here the language in issue is not the 'bringing of proceedings' but the 'beginning of proceedings'. Where there is a general provision aimed at a point of time at which proceedings are started, it follows that the assimilation of when proceedings are begun and when they are started is conclusive. The extended meaning, given specifically in the context of the bringing of proceedings for the purposes of the Limitation Act, has no bearing on the present circumstances...

The Court of Appeal in Barnes v St Helens MBC did not question the correctness of the decision in Salford CC v Garner.

More recently, in Harrison v University Hospitals Coventry & Warwickshire NHS Trust [2017] EWCA Civ 72, the Court of Appeal considered both Barnes and Salford CC v Garner: see paras 56-59. The question for the Court of Appeal was when, for the purposes of costs provisions contained in CPR 44.3(7), a case is to be treated as 'commenced'. Lord Justice Davis held:

The general position, under the Civil Procedure Rules, is that proceedings are started when the court issues a claim form at the request of the claimant: see CPR 7.2(1). A claim form is issued on the date entered on the form by the court: CPR 7.2(2)… An exception, with regard to the 'bringing' of proceedings for the purposes of the Limitation Acts, is conferred by paragraph 5.1 of PD 5A (cf. Barnes v St Helen’s Metropolitan BC [2006] EWCA Civ 172, [2007] 1 WLR 879). But no other exception is provided. 

… Much emphasis was placed on the position where, for example, there was industrial action at the issuing court or where (as no doubt here) the sheer volume of claim forms being submitted at the time to the relevant court caused delays in formal issue. But that kind of consideration has only attracted an exception in the context of the Limitation Acts. Thus in Salford CC v Garner [2004] EWCA Civ 364, [2004] HLR 35 the claim form desired to be issued was handed in to the County Court on 7 November 2002 (the crucial time limit expiring on 8 November 2002) but the claim itself was only actually issued on 11 November 2002. The Court of Appeal held that the 'beginning' of the proceedings, for the purposes of s.130 of the Housing Act 1996, was co-extensive with 'starting' proceedings under CPR 7.2…

... It is impossible to divine any sensible differentiation in this context between the word 'commenced' and the word ' started' (or, indeed the word 'begun'). They here mean the same thing: just as they did in the context of the decision in Salford CC v Garner...

As such, the current legal position appears to be as helpfully summarised by Morgan J in Ideal Shopping Direct Ltd v Visa Europe Ltd [2020] EWHC 3399 (Ch) at para 33:

PD7A paragraph 5.1 repeats that proceedings are started when the court issues a claim form at the request of the claimant. That paragraph goes on to provide that where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is 'brought' for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date… [P]aragraph 5.1 of PD7A shows that the general rule is that the claim is not taken to be issued on the date on which the proposed claim form is received by the court office. The exception provided for by paragraph 5.1 of PD7A applies for the purposes of the Limitation Act 1980 and any other statute which refers to proceedings being 'brought': see Barnes v St Helens MBC… The exception in paragraph 5.1 does not apply where the relevant statute does not refer to the 'bringing of proceedings' but refers instead to 'the beginning of proceedings': see Salford City Council v Garner…

Returning then to section 21(4D) Housing Act 1988. The statutory language is that possession proceedings 'may not be begun after the end of the period of six months beginning with the date on which the notice was given' (emphasis added). Critically, the legislation refers to when proceedings are 'begun', not when they are 'brought'. As per the authorities above, proceedings are begun when a claim form is issued. The exception in PD7A para 5.1 is not applicable. While there is no case law confirming this is the correct approach to section 21(4D) Housing Act 1988, any other approach would be inconsistent with Court of Appeal authority. 

As such, in any section 21 possession proceedings where the claim is brought right at the end of the six month period after notice was given, it will be worth checking when the claim form was issued by the court. If this was after the six month period expired, there is a good case to be made the claim is late and should be dismissed.