Possession claims are usually decided in the County Court via a pretty brief summary procedure in accordance with Part 55 of the Civil Procedure Rules (CPR). Most possession hearings last just five minutes, not long to decide whether someone should keep their home! This is controlled by CPR 55 which provides that where a claim is “genuinely disputed on grounds which appear to be substantial”, then the case should be allocated to a track and case management directions should be given for the case to proceed to a trial.

The Court of Appeal (CoA) recently considered in Global 100 Limited v Maria Laleva [2021] EWCA Civ 1835 what test is to be applied when deciding whether a claim is “genuinely disputed on grounds which appear to be substantial” for the purposes of CPR 55. Surprisingly, this was not something that had actually come up before. The Claimant argued that the threshold should be higher than that used for summary judgment in other proceedings (CPR 24) while the Defendant argued that it should be lower. The CoA found that the test to be applied for a possession hearing was in fact the same as the test relied on for summary judgment. Lewison LJ delivered the lead judgment and clarified that the relevant question to be considered is “whether the defendant has shown a real prospect of success in defending the claim”.

The particular circumstances of Global 100 Limited v Maria Laleva involved an arrangement whereby Ms Laleva occupied a room with shared access to communal arears of the property under a licence for the purpose of performing guardian duties. Ms Laleva sought to defend the possession claim on the basis that she was an assured shorthold tenant.

Ms Laleva lost at first instance as the District Judge founds that her Defence was not strong enough to make the claim “genuinely disputed” for the purposes of CPR 55, i.e. a possession order was made at the initial short summary hearing. This decision was overturned on first appeal by HHJ Luba, however, the Court of Appeal disagreed on second appeal and found that Ms Laleva’s Defence had no real prospect of success.

In practical terms for possession hearings going forward, when a Defence is filed and CPR 55.8(2) is triggered, the Court will now have to turn its mind to the summary judgment test in CPR 24.2 and answer two questions:

1. Does the Defendant have a real prospect of successfully defending the claim?
2. Is there any other compelling reason why the case should be disposed of at trial?

This also means that the body of case law applicable to summary judgements will now also apply to this test in possession matters. Parties are now likely to wish to make submissions based on this test where a defence is put forward, especially when it is only advanced at the hearing for the first time.

There are other matters of interest arising from this case which will be discussed in a separate blog post.