Ben Hubbard & Anor v James Barr

This is my judgment following the first hearing of a possession claim under CPR r.55.8. That first hearing was adjourned on a number of occasions, but it remained a first hearing. No defence has yet been filed. Therefore, under r.55.8(1), I may either decide the claim or give case management directions. Under r.55.8(2), ‘where the claim is genuinely disputed on grounds which appear to the court to be substantial’, I must allocate to a track or give directions to enable it to be allocated. The test of a genuine dispute on substantial grounds means that I should only determine the claim summarily if it is clear that any defence would not have any more than a fanciful prospect of success. The threshold is the same as that applicable to an application to set aside a statutory demand or for summary judgment: Global 100 Limited v Laleva [2021] EWCA Civ 1835.

The claimants are receivers appointed by TAB London Limited (TAB) under a legal charge dated 12 September 2023 (the charge) over 120c Charlton Park, Midsomer Norton, Radstock BA3 4BP (the property) by Roderick Barry Thorner, the owner of the registered freehold title to the property. Mr Thorner charged his interest in the property to secure a £600,000 loan made by TAB to Flower and Hayes Limited (the company), of which Mr Thorner is the sole director.

On 6 January 2025 Mr Thorner entered into an assured shorthold tenancy agreement (AST) with Mr Barr. Under the AST, Mr Barr was let into exclusive possession of the property for a term of 12 months at a rent of £2,000 per month. The term having expired, Mr Barr now holds under a statutory periodic tenancy. Until 1 May 2026 it was a statutory periodic AST, but because of the amendments made by the Renters Rights Act 2025 (RRA), it became a periodic assured tenancy on that date. Those amendments do not directly affect the claim before me.

Cl.12.1 of the AST read as follows:

I am told that a clause in similar form is used in a large number of ASTs.

Mr Thorner had covenanted under cl.7 and Sch.2 para.17 of the charge not to grant any tenancy affecting the property without the prior written consent of TAB. Bethany Jacobs, a solicitor who has given evidence on behalf of the receivers, states that the grant of the lease was in breach of these provisions. Except insofar as it affects whether it is just and equitable to dispense with notice, that point seems to me of no relevance to these proceedings. These proceedings are not brought by TAB on the basis that Mr Barr is an unauthorised tenant, but by the receivers.

After a breach of the loan to the company or of the charge itself, on 28 April 2025 the claimants were appointed as fixed charge receivers over the property under TAB’s powers given by cl.10.1 of the charge. As is common, and as in any event is made explicit by cl.10.5 of the charge, the receivers were on appointment the agents of Mr Thorner. They were empowered (including explicitly by cl.11.7 of the charge) to realise the property by taking possession and seeking to sell it, and to take proceedings for that purpose.

According to Ms Jacobs’ first statement, after the receivers’ appointment, various valuations of the property were carried out, and it was assessed that its open market value with vacant possession was between £550,000 and £675,000. With a sitting tenant, its value was assessed as between £400,000 and £525,000. The property was offered at auction in July 2025, but a sale at £500,000 fell through. The abortive sale is said to have been to ‘the Borrower’, but that phrase is ambiguous as it is inconsistently used in Ms Jacobs’ statement to mean both Mr Thorner and his company. In any event, as at 1 December 2025, the outstanding loan due to TAB was just short of £850,000.

Notice was served under s.8 of the Housing Act 1988 (HA) on 24 September 2025, relying on Grounds 2, 8, 10 and 11 of HA Sch.2. On 12 December 2025 the receivers issued these proceedings for possession against Mr Barr. The only ground for possession relied on is Ground 2. In these proceedings the receivers act as agents of Mr Thorner, the landlord. The reason why they seek possession is, as set out in Ms Jacobs’ first statement, in order to sell it on the open market for the best price they can get and to offset the proceeds against the amount owed to TAB.

The matter was first listed for a short CPR r.55.8 hearing on 6 February 2026, when it came before me. The receivers were represented by Counsel, and Mr Barr attended in person. It was identified that the question arose of whether the notice required by Ground 2 of HA Sch.2 had properly been given, and that that question could not properly be dealt with in the time available: in particular, the court needed to hear submissions on whether the language of cl.12.1 of the AST amounted to notice for the purpose of Ground 2.

I therefore adjourned the first hearing with directions that the claimants should file and serve a statement if they wished to contend that it was just and equitable to dispense with notice, which they did. I also directed that they were to file a written skeleton argument directly with me no later than 2 days before the adjourned hearing.

When the matter was next listed on 6 March 2026, they had failed to comply with the latter obligation. Mr Barr had instructed a representative to appear for him. I therefore adjourned the hearing again, and made an order for costs against the receivers.

The second adjourned hearing was due to take place on 21 April 2026, but that hearing had to be adjourned because of judicial unavailability, meaning that the case was finally heard on 1 May 2026.

It is important to remember that these proceedings are not brought by the mortgagee. Whether Mr Barr may be an unauthorised tenant vis-à-vis TAB is not at issue. In a statement produced shortly before the hearing, Mr Barr referred to a proposal made by Mr Thorner to raise sufficient funds to pay the entirety of the loan. There was no evidence to suggest this was a realistic prospect, but it is not relevant to the claim. The powers of the court under s.36 of the Administration of Justice Act 1970 are only available in an action brought by the mortgagee for possession of the dwelling-house. It is not available where the claim is brought by agents of the landlord.

At the hearing on 1 May 2026, the claimants were represented by Mr Cunliffe of Counsel, whose submissions and skeleton argument were very helpful in my consideration. Mr Barr appeared in person, but I allowed the duty solicitor Ms Pattison to make submissions on his behalf despite not being formally instructed by him. Ms Pattison had only a very short period on the day of an exceptionally busy possession list to familiarise herself with the case, but her submissions were precise, cogent and very persuasive. Her performance was remarkable, and I am very thankful indeed for her assistance in this case.

Ground 2 is a mandatory ground, in that the court must make an order for possession if its conditions are satisfied. Before the amendments made on 1 May 2026 by the RRA, Ground 2 read:

The reference to giving notice ‘as mentioned in Ground 1’ refers back to the following in Ground 1 of HA Sch.2:

It has not been disputed that sub-paragraphs (a) and (b) of Ground 2 are satisfied. The question I have had to grapple with is the one raised by sub-paragraph (c): was notice given by virtue of cl.12.1 of the AST (and if not, should I dispense with notice)?

There is no prescribed form of a notice. Neither Mr Cunliffe nor Ms Pattison were able to unearth any authority directly bearing on the content of notice under Ground 2. However, my attention was drawn to a number of authorities concerning Case 16 under the Rent Act 1977, in particular Fowler v Minchin [1987] 1 EGLR 108 and Springfield Investments Ltd v Bell [1991] 1 EGLR 115.

Case 16 of Sch.15 reads:

Sub-paragraph (b) of Case 16 is so similar to the language of the notice requirement in Grounds 1 and 2 of HA Sch.2 that authority on the meaning of the notice requirement in Case 16 is in my judgment highly persuasive in the current case.

Both parties agreed that a notice can be given in the tenancy agreement itself; it does not have to be a separate document. I agree. That conclusion is at the very least implicit in both Fowler and Springfield. Ground 2 does not state that a separate notice must be given, but only that ‘notice’ (not ‘a’ notice) has to be given. That requires notification, and a tenant can be notified of a particular risk in the tenancy agreement just as she can in a separate document.

As to the content of a notice, in Fowler, the Court of Appeal held at pp.110-111 that notice under Case 16:

As was pointed out in Springfield, the language quoted above in Fowler must be read in the context of the facts of the case. In Fowler, the only written notice relied on was a notice stating that ‘the defendant would vacate on 28 days’ notice if the plaintiff required it for a farm worker’. This was not a peremptory obligation of the defendant, but a voluntary undertaking.

In Springfield, there was no written tenancy agreement. Before the tenant had gone into occupation, he had been given the rent officer’s certificate of fair rent, which set out among other things the landlord’s proposed terms. Included in those terms was the following: ‘It is proposed to let on a regulated tenancy basis, subject to the provisions of Case 16, 15th Sch Rent Act 1977 (wherebyrepossession could be obtained to house an agricultural worker, employed, or to be employed by the Landlord)…’.

The Court of Appeal held that this was sufficient notice for the purpose of Case 16: the tenant went into occupation on the terms of that certificate, and the document drew specific attention to Case 16. Case 16 was fairly brought to the tenant’s attention.

Bradshaw & Martyn v Baldwin-Wiseman (1985) 17 HLR 260 was a case about Case 15 of the Rent Act 1977 (owner-occupier requiring possession as a residence for herself or a member of her family, and related circumstances). Case 15 is therefore similar to, though not identical to, Ground 1 under HA Sch.2. It also requires notice to be given that the landlord may seek to rely on the ground as a reason for retaking possession. Although Bradshaw was mainly concerned with the question of whether it was just and equitable to dispense with notice, Griffiths LJ addressed the reasons why notice was required at p.264:

This dictum must be handled with some care, because of the significant difference between the nature of the security of tenure under the Rent Act 1977 and the much more circumscribed security that was applicable to an AST (especially before 1 May 2026, when HA s.21 was repealed). What I draw from it, however, is that the notice must enable the reasonable tenant to understand the nature of any additional risk to her security of tenure. No specific form of words is required, let alone prescribed. To assess whether notice has been given, the words purporting to give notice must be read as a whole, in their proper context.

Mr Cunliffe said that the language of cl.12.1 of the AST was sufficient notice that the landlord may seek to rely on Ground 2. The reference to the ‘right to re-enter’ might in the first instance be referable to forfeiture, but that is a sufficient reference to the right to retake possession. There is specific reference to Ground 2, which Mr Barr could have looked up if he were left in any doubt. The final sentence of cl.12.1 makes clear that any eviction could only be pursuant to a court order, so the tenant could not conclude that self-help (and accompanying rights to relief from forfeiture) was the only thing that cl.12.1 was concerned with.

Ms Pattison argued that the language of cl.12.1 does not sufficiently draw the tenant’s attention to the landlord’s specific intention to rely on Ground 2 in the event that the mortgagee requires possession in order to exercise its power of sale. The words of Ground 2 are not set out or summarised. If Mr Barr had cared to search online to find out what cl.12.1 meant, he would have only realistically have found out about forfeiture, which is what a right of re-entry is all about. The final sentence is referable not to Ground 2 but to the Protection from Eviction Act 1977, which is the statute that is identified in the immediately preceding sentence. The final sentence cannot therefore shed light on cl.12.1(d).

After careful consideration of the arguments made by both parties, of the terms of the AST and the HA, and of the authorities to which my attention has been drawn, I have come to the conclusion that cl.12.1 does not give sufficient notice to the tenant that possession may be recovered under Ground 2. My reasons are:

Even where no notice is given, a court will allow a landlord to rely on Ground 2 if it is just and equitable in all the circumstances to dispense with notice. The parties made submissions on this point, but I heard no oral evidence.

The order I made on 6 February 2026 required the receivers to file a statement setting out their case on dispensation if they wished to take the point. They of course bear the burden of persuading me that I should dispense with notice, and the question of dispensation is not touched on in the claim form and particulars of claim. It was therefore necessary that, if they were to try to persuade me to dispense with notice, their case should be set out. Mr Barr, however, was not obliged to respond at that stage. The purpose of the 6 February 2026 order was to establish whether the receivers intended to raise the point, and if so on what basis.

It seems to me that the question of whether I should dispense with notice is not one which is amenable to summary determination of the sort envisaged by CPR r.55.8. As Mr Cunliffe explained to me in his very helpful skeleton argument, I will have to take into account all the circumstances of the case, including circumstances affecting the person seeking to rely on Ground 2, the circumstances of the tenant, and the circumstances in which failure to give notice arose: see Bradshaw. That in turn requires a more careful analysis of the evidence that is available after brief submissions on written statements. In particular, Mr Barr has not set out his case in a defence or a witness statement. His evidence may need to be tested under cross-examination, and Mr Barr must have the opportunity to challenge any assertions made in this regard by the receivers.

The submissions made to me in the course of the hearing 1 May 2026 demonstrate that, on the question of whether it is just and equitable to dispense with notice, the claim appears to be genuinely disputed on substantial grounds. What I propose to do is therefore to give directions for the resolution of this issue. I will hear submissions on appropriate directions.