Ghassemian v Chatsworth Court Freehold Company Ltd & Ors

We have before us an application for permission to appeal against an order made by Barling J in the Chancery Division on 17 December 2015, the appeal being listed to follow if permission is granted.

This case has a long and convoluted history. I intend to set out some aspects of it here in an attempt to explain the very considerable background to what is now a relatively short decision that we have had to make.

The appellant’s mother (hereafter “the defendant”) has a leasehold interest in an apartment in London. She fell into arrears in relation to the service charge in respect of it and judgment was obtained against her for £30,000. That judgment was not satisfied, and in March 2014 a final charging order was made in favour of Chatsworth Court Freehold Company Limited against the defendant’s interest in the property by District Judge Silverman, sitting in the Central London County Court. The company holds the freehold in the property. It was the claimant below and, although it is the respondent to the appeal proceedings before us, for simplicity I will continue to call it “the claimant”.

On a date in June 2015, District Judge Silverman ordered that the property was to be sold. The defendant was to deliver up possession to the claimant by a date in mid-July 2015. District Judge Silverman’s order has the date “25 June 2015” at the top of it and “10 June 2015” at the bottom of it. I will however call it the “order of 10 June” hereafter.

At some stage the appellant sought to involve himself in the proceedings in relation to the property. There is a considerable dispute as to what happened at around this time. He says that he made an application dated 1 June 2015, i.e. before the making of the 10 June 2015 order, seeking to, as he put it, “highlight to the County Court” his regulated tenancy. The respondent does not accept that this application was ever issued but the appellant says that it was. I do not need to go into the details of that.

What is tolerably clear is that the appellant sought to appeal against District Judge Silverman’s order of 10 June. There is a debate as to what happened to this appeal. However, from the transcript of the hearing before Judge Mitchell on 17 August 2015, it can be seen that on that day he addressed an application by the appellant for permission to appeal against the 10 June order. Judge Mitchell refused the appellant permission, classing the proposed appeal as totally without merit. He also made an extended civil restraint order against the appellant, either on that day or possibly on the next.

Judge Mitchell’s refusal of the application for permission to appeal was the final stage in the appellant’s attempt to appeal against the 10 June order in terms of the law. There is no appeal from a refusal of permission to appeal (see section 54(4) of the Access to Justice Act 1999). As will become apparent, however, it was not the end of the appellant’s challenge to the 10 June order.

A writ of possession was issued on 28 September 2015 in the Queen’s Bench Division of the High Court by way of enforcement of the County Court’s possession order. On 30 September 2015, the appellant, who had been living in the property, was evicted from it.

On 10 October 2015, the appellant applied in the Central London County Court for District Judge Silverman’s possession order of 10 June 2015 to be set aside and for a stay of execution of the sale and possession orders. In a statement which seems to be in support of that application, he argues that he was a regulated tenant of the premises and that his tenancy could not be brought to an end other than in accordance with section 98 of the Rent Act 1977. That application was dismissed by Judge Mitchell on 15 October 2015.

By an appellant’s notice dated 26 October 2015, the appellant sought to appeal to the Chancery Division of the High Court against District Judge Silverman’s orders and also the orders made by Judge Mitchell on 18 August and the 15 October 2015. In particular, he was seeking to have the orders for sale and possession of the properties stayed and the orders of Judge Mitchell set aside. His objective was to get back into the property, asserting that he was a regulated tenant.

On 29 October 2015, in that set of proceedings in the Chancery Division, Barling J ordered that the application for permission to appeal should be listed before a High Court judge. He granted a limited stay preventing the exchange of contracts for sale of the property pending determination of the permission application. Further ancillary injunctions were obtained in November and on 8 December.

It seems that the appellant then made an application to a Queen’s Bench Master who made an order on 3 December 2015, setting aside the Warrant of Possession pending the appeal process in the Chancery Division and requiring the appellant to be given access to the property. The Master set that order aside again on 9 December 2015. The warrant for possession was therefore once more in place.

So we come to the hearing in front of Barling J on 17 December. Counsel appeared for both sides on that occasion. Barling J refused most of the appellant’s applications for permission to appeal. However he did grant permission to appeal against paragraph 5 of the order made by District Judge Silverman on 10 June 2015, i.e. the order for possession:

“Only on the question of whether the appellant was at the material time a regulated tenant protected under the provisions of the Rent Act 1977

It seems that the route by which Barling J arrived at this order was by exercising the jurisdiction in CPR Rule 52.17 to reopen a final appeal. He did so on the basis that Judge Mitchell did not have all the matters before him when refusing permission to appeal. Barling J refused the appellant’s application for an order permitting him to reoccupy the premises pending the resolution of what I will now call “the regulated tenancy appeal” in the Chancery Division, although he continued the order preventing the exchange of contracts of sale until after the disposal of that appeal.

By an appellant’s notice dated 28 December 2015 and issued on the 31 December 2015, the appellant sought to appeal to this court against the refusal to permit him to go back into the premises. It has been made clear today that the focus of that appeal is paragraph 4 of Barling J’s order which says:

“The Appellant’s said application for an order permitting him to re-occupy the said premises pending the resolution of the proposed appeal is refused.”

In due course, the appellant sought to have his appeal to this court expedited because he said he would suffer irrevocable injustice if it was not determined before the end of January. This was said to be because he would fall into arrears with his rent as he would not be able to get housing benefits and therefore would no longer have protection as a regulated tenant. By order of 8 January 2015, the present hearing was therefore set up by Underhill LJ. However, there were further developments after that.

On 13 January, the claimant applied for the revocation of various provisions of Barling J’s order, including his grant of permission for the regulated tenancy appeal. That application was heard on 19 January, when NeweyJ revoked the grant of permission to appeal “pursuant to CPR 3.1(7)”. We have been supplied with a note of Newey J’s judgment which explains his reasoning for this order. He accepted the submission of the claimants that any application to reopen the appeal should have been made to the court which determined the appeal (here the Central London County Court). In contrast to the High Court and the Court of Appeal, the County Court does not have power to permit the reopening of an appeal. Rule 52.17(3) of the CPR provides that Rule 52.17 does not apply to appeals to the County Court. Therefore, even if it were to have been assumed that Barling J was sitting as a judge of the County Court on 17 December, that would not have cured the defect in the process in front of him: as a judge of the County Court he would not have had power to do what he did. Newey J therefore held that Barling J’s order setting aside the refusal of permission to appeal by Judge Mitchell insofar as it related to the regulated tenancy point was made without jurisdiction and was, therefore, a nullity. He accordingly set that order of Barling J aside under CPR 3.1(7).

The provision refusing interim relief pending the regulated tenancy appeal, paragraph 4 of Barling J’s order, necessarily went too in consequence of the setting aside of the permission to appeal which Barling J had granted. That setting aside of the permission to appeal had the effect of bringing to an end the appeal that had been pending in the Chancery Division on the regulated tenancy point. An appeal against a different order, the extended civil restraint order, was left over for examination on another date, but nothing was left of the regulated tenancy appeal.

I turn to the consequences of this history and the arguments that have been advanced to us today. Counsel for the appellant has not been able to advance the appellant’s appeal against Barling J’s refusal to grant him interim relief of the type that he wanted pending the regulated tenancy appeal because, since Barling J’s permission to appeal upon which that was dependent has been set aside, there is no longer an extant order which can be considered on appeal to this court. The necessary consequence of the position as it is since the order of Newey J is that we must dismiss the application for permission to appeal against Barling J’s order to this court.

However, counsel for the appellant made the submission that we should nonetheless grant the appellant interim relief permitting him to re-enter the property. He pointed to the existence of the extended civil restraint order appeal which remains pending in the High Court, and also to new proceedings which were commenced by the appellant on 18 January this year in the High Court seeking by another route to establish his regulated tenancy. The existence of these proceedings was known to Newey J when he made his order on 19 January. We are told that the appellant was seeking on that day to advance an application in those new proceedings for interim relief. That is what led Newey J to make the order which appears at paragraph 3 of the order of 19 January. It provides:

“No order is made in relation to the Appellant’s application dated 18 January save that if the Appellant wishes to pursue that application he must give 3 days’ notice to the Respondents.”

The application there referred to is the application for interim relief in the new proceedings. At the same time the claimant undertook not to exchange contracts for the sale of the lease in relation to the property before 3 February. That was a time period fixed to provide the appellant with sufficient time to make an application on notice for interim relief, as required by paragraph 3 of Newey J’s order.

Counsel for the appellant argued that this court has power under CPR Rule 52.10 to make an order granting the appellant interim relief, notwithstanding the circumstances that I have set out with regard to the main appeal which he wished to make to this court against Barling J’s order. Rule 52.10(1) provides: “In relation to an appeal the appeal court has all the powers of the lower court”. Counsel therefore invited us to say that the lower court could grant interim relief and we could do so as well, at least whilst we had still not dismissed the appeal against Barling J’s order.

I am not persuaded that CPR Rule 52.10 confers upon this court a general power to grant interim relief, and certainly it is not my view that it confers upon this court a power to grant interim relief in the circumstances of this case. It seems to me that Rule 52.10 is dealing with this court’s powers in relation to the matter which has been appealed to it. The civil restraint order question has not been appealed to this court, and so it is not relevant for the purposes of Rule 52.10. The Barling J order has been set aside and the appeal in relation to it to this court must necessarily fail with the dismissal of the application for permission to pursue it, so interim relief cannot be granted in that context. Furthermore, in my view, it is not open to us to say that the appellant should be granted relief in support of his position in other proceedings which have not come anywhere near the Court of Appeal. That is not going to prejudice him, because he is able to make his application to the High Court, protected in the interim period against sale of the property by the undertaking given by the claimants to Newey J.

We declined to hear from either counsel on the merits of the new proceedings or the claim for interim relief in those proceedings. Indeed, we declined to hear anything about the merits of the proposed appeal to this court, because of the procedural situation in relation to that. Nothing in this judgment is therefore intended to express any view or to determine anything in relation to the merits of the case. I should also say that the chronology which I have given should not be taken as a complete chronology of all the litigation that there has been in this case, because I have picked out in the course of it only those matters which I considered to be relevant to the determination which we have to make.

Therefore, the only order which I would make in those circumstances is to dismiss the application for permission to appeal against the order of Barling J.

I agree, and I would add also, not least because we have heard no submissions about it, I would not wish to express any final view about the obvious difference of approach in relation to procedure taken by Barling J and Newey J in relation to an application in the High Court to re-open a refusal of permission to appeal to the County Court. All that can be said at the moment is that there has not yet, as I understand it, been any appeal against Newey J’s order, and for as long as that order remains, Barling J’s order has, indeed, been set aside. It is that analysis of which that leads me easily to agree with my Lady’s approach to the lack of procedural power which this court has at the moment to assist the appellant.