Solicitor Amy Kennedy of JB Leitch, provides a review of recent case law in a new article, asking that where a borrower appealed against a court’s refusal to set aside a possession order, was the district judge correct to find that the possession order was a ‘final order’?
The background
In Sangha v Amicus Finance plc (in administration) [2020], Amicus had taken a first legal charge over a property by way of security for a loan to the appellant. Having failed to repay the loan, possession proceedings were issued by Amicus and a possession order subsequently made. The borrower failed to give up possession in accordance with the terms of the order, therefore Amicus made a further application for a warrant for possession, and the borrower applied to suspend the same.
The borrower also applied to set aside the possession order, as he stated that he may have a potential defence to the possession proceedings which related to different proceedings involving Amicus concerning a different property. At a hearing on 4 December, the court stayed the possession order in light of the borrower’s application to set aside. The application to set the possession order aside was then heard by the district judge, and the court held that the possession order was a final order. There was no material change in the circumstances of the case, the judge had not been misled as to any facts in the case and she dismissed the borrower’s application to set aside the possession order.
The borrower appealed the decision.
The decision
The High Court found in favour of Amicus concluding that the decision of the district judge was correct. The possession order was a final order.
The High Court considered whether the district judge had been too restrictive in making a distinction between interim orders and final orders. The arguments presented by the borrower did not sufficiently challenge the court’s view that the possession order was a final order. The order was made following consideration of Amicus’ rights, and although Amicus had also claimed for repayment of the full outstanding loan amount this nevertheless did not mean the possession order could not be considered final.
The district judge had used sufficient discretion in reaching her decision that the possession order constituted a ‘final order’, and that the order should not be set aside on the basis that the facts of the case were not ‘exceptional’.
Advice and action
Freeholders and landlords can be reassured by this case that the court will support the grant of possession orders as ‘final orders’ in circumstances which are not so exceptional that they present a significant challenge to the order’s validity.
Parties will benefit from this decision through more definitive proceedings which will not be capable of further challenge by borrowers, tenants or occupiers.
Amy Kennedy, Solicitor at JB Leitch
