Part 1 – Global 100 v Laleva  EWCA Civ 1835
13th December 2021
Part 1 – A genuine dispute? CPR r.55.8 under the spotlight
At a first possession hearing, the court will either decide the case summarily there and then, or give case management directions. By CPR r.55.8(2), case management directions, including allocating the matter to a track for trial, must be given “where the claim is genuinely disputed on grounds which appear to be substantial”. The question for the Court of Appeal in Global 100 was how that test is to be applied in practice.
The Court of Appeal held that the test to be applied under CPR r.55.8 is the same as that to be applied on an application for summary judgment – namely whether the Defendant has shown a real prospect of success in defending the claim and there is no other compelling reason why the case should be disposed of at trial. Accordingly, if a Defendant to a possession claim is to persuade a judge not to make a summary possession order at the first hearing, he must show that his defence is “realistic” as opposed to “fanciful”. A defence will be “realistic” if it carries some degree of conviction and thus is more than merely arguable.
Though a Judge hearing an application for summary judgment should not conduct a “mini-trial” of the issues, they ought not take what the Defendant says at face value and should instead test whether there is any real substance in the factual assertions that a Defendant has made, often by reference to contemporaneous documents. Further, Judges dealing with summary judgment applications are frequently asked to resolve a short point of law or construction raised in a defence.
However, the reality is that a court dealing with a block list of first possession hearings will only have a few minutes of court time to decide whether or not the Defence is realistic and to give case management directions if so. In anything more than the most straightforward of cases, there will not be enough time to make that assessment on the first occasion. In those circumstances the best option is likely to be to seek an adjournment of the first hearing for a fuller consideration of the merits of the defence.
It should also be noted that Global 100 only applies where a defence has actually been filed by the time of the first hearing. In many cases, a tenant will simply show up to court on the day to argue his defence. In those cases, the Defendant is still able to take part in the hearing (see CPR r.55.7) and is likely to be granted a short adjournment in order to file a substantive defence.
As well as the interesting procedural points raised in this appeal, the underlying case was about the property guardianship and the legal status of the guardians themselves. That important element of the decision will be covered in Part 2.
By Katie Gray
Team: Katie Gray
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