The time limits for beginning possession proceedings: is it all now meaningless?

In 2022, Alice Irving wrote this helpful article about when possession proceedings are “begun” in the context of possession proceedings pursuant to section 21 of the Housing Act 1988. The words “begun” are similarly used for other types of possession claim under section 8 of the Housing Act 1988 and section 83 of the Housing Act 1985.

It was thought that the meaning of when proceedings were “begun” was clear from the wording of CPR 7.2 and the Court of Appeal decision in Salford City Council v Garner [2004] EWCA Civ 364.

However, the recent Court of Appeal decision in Brent London Borough Council v Hajan [2024] EWCA Civ 1260 seems to suggest that proceedings can also be begun when they are amended.

The position previously

All three of the standard routes for possession claims require that proceedings are “begun” within a certain time following service of the notice of seeking possession:

1. Section 21(4D) of the Housing Act 1988 provides that “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).
2. Section 8(3) of the Housing Act 1988 provides that “a notice under this section is one in the prescribed form informing the tenant that the landlord intends to begin proceedings for possession of the dwelling house on one or more of the grounds specified in the notice and those proceedings will not begin earlier than a date specified in the notice…and those proceedings will not begin later than twelve months from the date of service of the notice.”
3. Section 83A(2) of the Housing Act 1985 provides that “where a notice under section 83 or 83ZA has been served on a tenant and a date after which proceedings may be begun has been specified in the notice in accordance with section 83(4)(a) or section 83ZA(9)(a), the court shall not entertain proceedings for the possession of the dwelling-house unless then are begun after the date so specified and at a time where the notice is still in force.”  Sections 83(3) – (4A) and section 83ZA(9) are clear that the notice ceases to be in force twelve months after the date specified.

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.

There is a distinction between when proceedings are “brought” and when they are “begun”: CPR PD 7A para 6.1. Since all three of the above sections for seeking possession use the word “begun”, it was thought that it was clear that if possession proceedings were not issued by the court within 6 months/12 months (depending on the section), then the claim was invalid and fell to be dismissed (unless the court dispensed with notice in respect of discretionary grounds: section 8(1)(b) and (5) of the Housing Act 1988 and section 83(1)(b) of the Housing Act 1985). Claims were frequently “begun” out of time in the context of section 21 given that the landlord effectively has just four months after expiry of the notice for the claim to be issued.

However, this seems to have changed in light of the Court of Appeal decision in Brent London Borough Council v Hajan.

Brent London Borough Council v Hajan

In this case, a secure tenant was served with a notice of seeking possession on 30 November 2022 pursuant to section 83 of the Housing Act 1985 in reliance on grounds 1 and 2 of Schedule 2, relating to anti-social behaviour. The landlord then issued a claim for possession pursuant to that notice on 21 December 2022. The landlord then subsequently served a notice of seeking possession on 4 May 2023 on the mandatory ground for possession pursuant to section 83ZA of the Housing Act 1985 following the tenant’s conviction for a serious offence. 

The landlord then applied to amend its particulars of claim in the existing proceedings on 6 June 2023 so as to also rely on the mandatory ground for possession. The Deputy District Judge granted this application on 5 July 2023, and the tenant appealed on the basis that the proceedings had not been begun after the date specified in the section 83ZA notice, which postdated the bringing of the original proceedings.

The Court of Appeal dismissed the appeal. The Court did not consider it significant that the court had no power to dispense with notice under 83ZA in circumstances where a notice had in fact been given [50]. The Court noted that CPR 7.2(1) provided that “proceedings are started when the court issues a claim form at the request of the claimant” [51] but that “clearly, where a landlord proposes to amend existing particulars of claim rather than issue a new claim form that statement cannot be applied” [52].

The Court of Appeal considered that “the interpretation contended for by the tenant [that proceedings must begun be after the date specified in the notice and that amending the proceedings does not comply with that requirement because the proceedings have already been begun] was wasteful of costs and court time, and results in an unnecessary duplication of effort” when “the substantive protections given to the tenant by the statutory scheme (ie the time lapse between service of the notice and taking steps to recover possession on the mandatory ground, and the ability to apply for a review of the landlord’s decision to serve the notice) have been adhered to. The procedural tail should not be allowed to wag the substantive dog [55].

The Court concluded that “it is possible to interpret “proceedings” as referring to an amended claim and that those proceedings are “begun” when the landlord obtains the assistance of the court in securing possession on the ground of satisfaction of one of the conditions in section 84 by permitting an amendment and specifying when it comes into effect. Accordingly, in my judgment, and giving a purposive interpretation to sections 83ZA and 83A(2), if the court were to exercise its power to fix a date from which the amendment took effect, there would be no difficult in interpreting the word “proceedings” as referring to the amended proceedings, and as regarding those proceedings as having been “begun” on the date when the amendment took effect.” [57 – 58]. 

In plain English then, the Court of Appeal held that if the court granted a landlord permission to amend  an existing claim for possession so as to rely on the grounds specified in a new notice, and specified a date when the amendment came into effect, then that amended claim was capable of being proceedings which were begun on the date specified by the court for the amendment. This was subject to the proviso that the date of the amendment postdated the date specified within the notice after which proceedings would be begun so that the tenant had been afforded the substantive protection intended by the notice requirements. As such, the landlord would not need to issue a new claim to rely on the new grounds

Comment

Weirdly, the Court of Appeal does not seem to have considered the case of Garner when making this decision. It did consider CPR 7.2 but held that it simply could not be applied when considering existing proceedings. As such, it may have found the same to be true of Garner even if it had considered the same.

Hajan does not deal with the position where a claim was “dead” from the outset ie where the existing claim for possession pursuant to section 83 was issued more than 12 months after the date specified for proceedings to begin. However, it seems from this decision that “dead” proceedings can be revived by service of a new notice, expiry of the same and then amendment of the “dead” proceedings, as the amended proceedings will be “begun” on the date the court allows amendment and the same practical considerations re time and costs would apply.  As such, it seems that even where proceedings have not been begun in time, they can be begun in time by amendment.

Of course, a landlord will not always get permission to amend, and in mandatory anti-social behaviour cases they may not be able to serve a new notice on the same basis if they have issued out of time, eg  because more than three months have now passed since the making of a closure order in the context of Condition 4 of Ground 7A of Schedule 2 of the Housing Act 1988 or more than 12 months since the conviction/breach of injunction in the context of Conditions, 1, 2, 3 and 5: see section 8(4D) – (4F) Housing Act 1988. The same points can be made in respect of the mandatory ground pursuant to section 83ZA of the Housing Act 1988: see section 83ZA(5) – (7).

However, in other cases where a valid notice can be served, and particularly where the initial delay in issue was of no fault of the landlord but of the court (ie where the claim was sent to the court in good time  but not issued until much later), the court may see the appeal in taking this approach, particularly having regard to the court’s focus on the waste of time and costs of the landlord inevitably bringing a fresh claim.

Similarly, in cases on the mandatory ‘no-fault’ basis under section 21 of the Housing Act 1988, where the tenant has had the benefit of a further two months notice and otherwise has no defence to the claim, the court may see the appeal in allowing amendment, rather than dismissing a claim just for the landlord to immediately issue another claim which will inevitably be successful. 

Only time will tell whether, in light of this judgment, we will see more applications to amend claims and less early dismissals where proceedings have not been begun in time.