Can a Claim for Relief From Forfeiture Be “a Defence” to an Order for Possession?

In March, the Court of Appeal handed down its decision in Dean Golding v. Deborah Allen Martin [2019] EWCA Civ 446.

A landlord has two options when forfeiting a lease. They can physically take back possession of the premises by re-entry, or issue proceedings. This case relates to a landlord who issued and served proceedings on their tenant.  

In a typical forfeiture action, the landlord will apply for an order for possession. If successful, the tenant may be able to apply for relief against forfeiture, but that does not alter the fact that the landlord has obtained the order that was sought. In other words, the existence of a possible right to relief against forfeiture has historically not been assessed as a defence to possession proceedings. 

The Court of Appeal recently challenged this view through a new interpretation of section 138 County Courts Act 1984 (the Act), which contains provisions as to forfeiture of leases for non-payment of rent. The Court concluded that relief from forfeiture following the grant of a possession order under section 138 counted as a “success at the trial” for the purpose of CPR Part 39.3(5)(c), even though that provision only applied by analogy.