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Martha Timbo v The Mayor and Burgess of the London Borough of Lambeth [2019] EWHC 1396 (Ch)

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25th February 2020

Summary

In a claim for relief from forfeiture the High Court refused to order relief where there was no good reason for delay beyond 6 months from re-entry, whether this resulted in a windfall for the landlord was irrelevant to the question of promptness.

Facts

The Claimant held the long lease of a flat from the Defendant. Arrears of service charges arose and judgement was entered in default. The Claimant issued proceedings for possession in the country court and obtained an order for possession. The Claimant issued a number of applications in the County Court that were treated as applications for relief but withdrew them in the expectation of negotiations. In the interim the Defendant obtained possession of the flat. The Claimant issued proceedings in the High Court for relief from forfeiture 8 months after the Defendant took possession of the flat.

Issues

1. Whether the Court should apply the time limit is s.210 of the Common Law Procedure Act 1852 by analogy and, if so, was there a good reason to extend time.
2. On the facts, should relief be granted

Decision

The Claimant argued that s.38 of the Senior Courts Act 1981 or s.146 of the Law of Property Act 1925 gave the Court an unlimited jurisdiction to grant relief which should be granted if a tenant was able to pay arrears and costs.

The Defendant argued that the court was exercising an equitable jurisdiction which was to be exercised with regard to the 6-month time limit in s.210 of the Common Law Procedure Act 1852. On the facts the application was late and there was no reason offered for the delay.

Master Shuman held that the court’s jurisdiction was equitable not statutory and that regard was to be had to 6 month time limit in s.210. While there was no guillotine after 6 months and each case turned on its own facts an application had to be prompt or there had to be a good reason for delay.

An earlier decision of Chief Master Marsh in, Pineport Limited v Grangeglen Ltd [2016] EWHC 1318 had turned on its facts and neither it nor the decision of the Court of Appeal in Billson v Residential Apartments Ltd [1992] AC 494 were authority for the proposition that relief would be granted without limit of time.

If the application had not been dismissed as being out of time it would have been refused on the facts as the Claimant could not satisfy the court that she was able to pay the amount that would, in any event, be required to pay arrears and costs.

Comment

The decision applies the obiter decision of Lewison LJ in Gibbs v Lakeside Developments Limited [2018] EWCA Civ 2874. The High Court will have regard to the 6 month time limit on applications for relief in s.210 of the Common Law Procedure Act 1852 and will only grant relief beyond 6 months if the application was, in the circumstances of the case, made promptly or there was an adequate explanation for the delay. A windfall to the landlord was not relevant to whether the application was made promptly.

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