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Raising new points on appeal in Part 55 possession proceedings

The Court of Appeal has handed down judgment in Notting Hill Finance Ltd v Sheikh [2019] EWCA Civ 1337, giving guidance on the circumstances in which a defendant to a possession claim can raise on appeal new points which they did not raise at the hearing of the claim. Robert Brown acted for the claimant lender.

The claimant lent the defendant a sum of money and was granted a charge over the defendant’s residential property. The defendant did not repay the loan at the end of the term and the claimant issued possession proceedings. At the CPR Pt 55 hearing of that claim before a District Judge, the defendant did not dispute the making of a possession order, although he sought more time in the property, and he did not challenge the making of a money judgment for the arrears.

The defendant then sought to appeal against the District Judge’s decision, arguing that part of the loan agreement was unenforceable and unfair under Consumer Credit Act 1974.

A Circuit Judge allowed the appeal, holding that the circumstances were required by Jones v MBNA International Bank Ltd to be exceptional. Having regard to various circumstances, including the defendant’s status as a litigant in person, the Circuit Judge held that the situation was exceptional and the defendant should be allowed to rely on these new arguments. The Circuit Judge went on to hold that the failure to identify the potential defences meant that there had been a serious procedural or other irregularity in the proceedings before the District Judge such that the appeal should be allowed under CPR 52.21(3)(b).

The Claimant was given permission to bring a second appeal to the Court of Appeal on the grounds that the Circuit Judge had been wrong to consider that the circumstances were exceptional and to consider that there had been a serious procedural or other irregularity in the proceedings.

Giving the judgment of the Court of Appeal Snowden J said, at [26], that “there is no general rule that a case needs to be ‘exceptional’ before a new point will be allowed to be taken on appeal.  Whilst an appellate court will always be cautious before allowing a new point to be taken, the decision whether it is just to permit the new point will depend upon an analysis of all the relevant factors. These will include, in particular, the nature of the proceedings which have taken place in the lower court, the nature of the new point, and any prejudice that would be caused to the opposing party if the new point is allowed to be taken.” The Court of Appeal went on to say that the Circuit Judge therefore did not need to consider whether circumstances were exceptional. While the defendant’s position was not materially enhanced by the fact that he was effectively unrepresented before the District Judge, the Circuit Judge had otherwise identified the main factors relevant to the exercise of his discretion to allow the new points to be taken. The Court of Appeal also said that there had been no defect in the proceedings before the District Judge so as to say that there had been a serious procedural or other irregularity under CPR 52.21(3)(b), although it was possible to say that the District Judge’s decision to grant judgment rather than to give case management directions was “wrong” under CPR 52.21(3)(a).

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