Baqir Al-Chaalan & Anor v Abri Group Limited [2026] EWCA Civ 946

[2026] EWCA Civ 946Case No CA 2025 001543
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM COUNTY COURT AT CENTRAL LONDON
HHJ BLOOM
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24 July 2026
Before
LORD JUSTICE NEWEYLADY JUSTICE ASPLINLORD JUSTICE BAKER
Between
BAQIR AL-CHAALAN & ANOTHERAppellantABRI GROUP LIMITEDRespondent
Dale Timson (instructed by W H Lawrence Solicitors) for AppellantJennifer Moate (instructed by Capsticks LLP) for RespondentHearing Hearing dates: 8 July 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on 24 July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]This appeal is concerned with whether proceedings for possession were properly served in relation to an assured tenancy of Flat T, Southwood House, 41 - 49 Avondale Park Road, London, W11 4HF, (the “Property”) and, in particular, with whether an address mentioned in the tenancy agreement satisfied the requirements of CPR r 6.8(a) or, alternatively, CPR r 6.9. It also raises questions about the way in which evidence was approached on a paper application and whether the conduct of the Respondent, Abri Group Limited, was egregious.

Background

[2]For the most part, I have taken the background facts from the judgment of Her Honour Judge Bloom dated 3 June 2025 to which I refer below. The Appellant, Mr Baqir Al-Chaalan, was the assured tenant of the Property pursuant to a tenancy agreement dated 29 March 2004, made with the Respondent, Abri Group Limited, then known as Octavia Housing (the “Tenancy Agreement”). (I shall refer to the Respondent as “Octavia” as that was its name when the relevant events occurred.) At that stage, the paperwork suggested that Mr Al-Chaalan lived at the Property with his mother, his wife and his daughter, Ms Aya Al-Chaalan. From 2019, Mr Iyad Abualkibash, who was stated to be Mr Al-Chaalan’s nephew and carer, also lived at the Property.[3]In June 2020, Mr Al-Chaalan visited his brother in Iraq. It was stated in correspondence by a Mr Noori Shalaan, who was named as his next of kin, that Mr Al-Chaalan had died in Iraq at around that time. In or about 1 February 2022, however, Mr Al-Chaalan’s daughter informed Octavia that Mr Al-Chaalan was alive but had been taken ill in Iraq and was unable to travel. In early 2022, Octavia conducted an inspection of the Property and met Mr Abualkibash who claimed to be the sole occupant. On 22 September 2022, Octavia served a notice to quit on Mr Al-Chaalan at the Property.[4]On 12 January 2023, Octavia’s solicitors wrote to Mr. Abualkibash at the Property and to Mr Al-Chaalan and his daughter explaining that there were concerns and that possession was going to be sought and suggesting that there had been some sort of fraud at the Property. On 19 January 2023, Mr Abualkibash instructed WH Lawrence Solicitors (“WH Lawrence”) who wrote to Octavia’s solicitors asking for the basis for the notice to quit and for copies of documents including the Tenancy Agreement. Octavia’s solicitors wrote back declining to provide clarification and pointed out that they could not provide information about a third party’s tenancy.[5]On 21 April 2023, Octavia’s solicitors told WH Lawrence that they had issued proceedings against Mr Al-Chaalan and stated that WH Lawrence's client, Mr Abualkibash, was not a defendant. In fact, proceedings for possession of the Property were issued on 26 April 2023, on the basis that Mr Al-Chaalan had:(a) sub-let the whole of the Property or he had ceased to occupy the Property as his only or principal residence; or(b) in the alternative, that he had died. Both Mr Al-Chaalan and his personal representatives were named as parties. The claim form provided the address of the Property for service.[6]By an email of 3 May 2023, WH Lawrence wrote to Octavia’s solicitors stating that they were now instructed to represent Mr Al-Chaalan and requested copies of all notices, correspondence and court papers. Despite chasing, they did not get a response.[7]On 18 May 2023, notice was sent to the parties that there was to be a hearing in June. By a defence dated 7 June 2023, signed by Mr Abualkibash as a “litigation friend”, Mr Abualkibash stated that Mr Al-Chaalan was alive, that there had been no sub-letting, that Mr Al-Chaalan's daughter was still living at the Property and that he was also living there. The address which was given for service was the Property.[8]A possession hearing took place before Deputy District Judge Le Bas, as he then was, on 20 June 2020. No one attended on behalf of Mr Al-Chaalan or Mr Abualkibash and an order for possession was made (the “Possession Order”).[9]On 20 June 2023, Mr Abualkibash made an application, acting in person, seeking to set aside the Possession Order on the basis that as the Second Respondent, the “personal representative” of Mr Al-Chaalan, he had been late for the hearing and had informed the court that he was running late, but that the hearing had proceeded in his absence, nevertheless. On 22 June 2023, that application was dismissed as totally without merit. Mr. Abualkibash made a further application on 30 June 2023 which was also dismissed as totally without merit.[10]A further order to that effect was made on 25 July 2023, following an email from Mr. Abualkibash stating his belief that the court had erred in finding that he had no standing. In her order of 25 July 2023, District

Judge Parker stated as follows:

“Upon reading the court file about a hearing, upon noting that Mr Iyad Abulkibash states that his standing to make an application is that he is the second defendant and personal representative of the first defendant, Mr Baqir Al-Chalaan, and upon no documentary evidence being provided that Mr Iyad Abulkibash has been appointed as the defendant's personal representative - ie, that he is legally entitled to administer the first defendant's estate - and upon noting that the application dated 20 June 2023, signed with a statement of truth says that the first defendant is alive and in intensive care in Iraq, and upon the court noting that in order to be a personal representative of an individual, that individual must be deceased, it is ordered that the application made by Mr Abulkibash remains struck out as entirely without merit.”
Also, on 25 July 2023, Octavia’s solicitors wrote to Mr Al-Chaalan at the Property stating that a warrant for possession had been issued, and the eviction date was 26 October 2023 at 12pm.[11]On 29 September 2023, Mr Al-Chaalan’s solicitors, WH Lawrence, applied to set aside the Possession Order and the warrant for possession. A witness statement in support of the application was sworn by Mr Anyamene, a solicitor from WH Lawrence, and there was a witness statement from Mr Al-Chaalan himself. Ms Lartey, a Housing Officer employed by Octavia, produced a witness statement in response to the application and there were further statements from Mr Al-Chaalan and from his daughter.[12]At a hearing before District Judge Parker, on 25 October 2023, execution of the warrant of possession was stayed. The hearing of the application to set aside the Possession Order took place on 15 November 2023, before Deputy District Judge Thomas. Mr Al-Chaalan and Mr Anyamene attended the hearing via CVP. No cross-examination took place. Deputy District Judge Thomas dismissed the application to set aside the Possession Order. (A transcript of his judgment is not available. We have been provided with a note which is agreed, save for one irrelevant matter, instead.)[13]The Deputy District Judge found as a fact that Mr Al-Chaalan was alive and went on to state that the applicable legal test was agreed by the parties. He stated that the court should apply similar principles to those in CPR r 39.3(5), namely: the claimant should have acted promptly; should have had a good reason for not attending the hearing; and have a reasonable prospect of successfully defending the claim.[14]The Deputy District Judge began by addressing the prior question of whether the claim form had been properly served. He held that it had been validly served pursuant to CPR r 6.8, or alternatively, that it had been served under CPR r 6.9. He found that Mr Al-Chaalan had been “aware that the possession hearing was happening and had solicitors on record who he should have sent to attend on his behalf.” He went on as follows: “I find that as a fact D1 [Mr Al-Chaalan] was aware that the hearing was happening and had solicitors on record who he should have sent to attend on his behalf. I am aware he was in Iraq. I find WH Lawrence were instructed on his behalf at that time. They were instructed at that time and D1 [Mr Al-Chaalan] was aware of the hearing going ahead. The reason I make that finding of fact is as follows. IA [Mr Abualkibash] was living at the property and IA [Mr Abualkibash] was certainly aware of the hearing. He attended court on the day unfortunately a little late. He clearly opened post sent to the property saying there was a possession hearing at this court at this time. I also know there must have been communication between IA [Mr Abualkibash and D1 [Mr Al-Chaalan] at that time. How else did D1 [Mr Al-Chaalan] instruct the same solicitors. It stretches credulity that D1 [Mr Al-Chaalan] wasn’t aware of the hearing. Since he had solicitors he should have sent them”.[15]He also considered Mr Timson’s submissions that Octavia had acted “improperly or remarkably” by not informing WH Lawrence of the details of the proceedings when they contacted Octavia in May 2023. He found that Octavia had been under a “misconception” that they could not communicate directly with WH Lawrence but, given his finding of fact, whilst that conduct was “regrettable” it did not affect the fact that Mr Al-Chaalan was aware and should have sent WH Lawrence to the hearing. He went on to find that Mr Al-Chaalan sent Mr Abualkibash instead which was not good attendance.[16]In addition, he held that Mr Al-Chaalan had not acted promptly in making the application to set aside the Possession Order. He stated as follows:
“Given the findings of fact I have just made, the first defendant was aware of what was going on, because the details were sent, because IA [Mr Abualkibash] was telling him about them. He was aware of the possession order when it was made and he should have acted promptly thereafter in June to have it set aside. Instead, what he did, via IA [Mr Abualkibash], was to have IA [Mr Abualkibash] make an application which was misconceived and rejected as totally without merit. It was only in September that he adopted a different tack - using solicitors. Even if I am wrong that he actually knew, if the judgment was sent to the address on the tenancy agreement, since on his own case he always intended to go back, he should have put in place systems so IA [Mr Abualkibash] informed him what was going on. He did not do that, so he can be blamed for failing to do that. I also rely on the fact his witness statement is notably silent about whether or not he was aware of the date of the proceedings and the facts of the order.”
Lastly, when considering whether the defence had a reasonable prospect of success he decided that although the weight was on Octavia’s side, it was “not so much that D1 [Mr Al-Chaalan] didn’t have reasonable prospects of success at the hearing”.[17]Mr Al-Chaalan appealed. The appeal was heard by Her Honour Judge Bloom on 6 June 2025. She dismissed the appeal and ordered Mr Al-Chaalan to pay Octavia’s costs. She agreed with the Deputy District Judge that the possession proceedings were properly served at the Property pursuant to CPR r 6.8. She stated as follows:
“37 . . . where, as here, one has the tenancy agreement and the express term about service of notice including communications that arise from the tenancy and states that they would be validly served at the property, that is intended to cover notice of proceedings. It is a logical reading and understanding of the term, especially when one reads it as being a mirror of the obligations that were being placed on the landlord under section 48 and in accordance with the tenancy agreement. The fact that it does not spell out that there are notices of proceedings does not appear to me to be relevant but that it is covered as a logical reading and understanding of the agreement between the parties.”
She went on at [38] to state that if she were wrong about that, that she was satisfied that Octavia was entitled to serve at the Property under CPR r6.9(2). In that regard, she stated as follows:
“. . . Firstly, the deputy district judge, as I read what he was saying, was saying that it was Baqir Al-Chalaan's last-known residence and he could be served there. It is a little unclear if the deputy district judge was also saying that the claimant had reason to believe he was not there. How I read it was that it was a confused picture that the claimant found itself in and it was reasonable to take the view that in fact the premises were his usual or last-known residence. 39. Either way, I am satisfied that Ms Moate is correct in her approach. Firstly, the defendant is in great difficulty, in my view, in asserting in this case that it was not his last-known usual residence. It makes something of a mockery for a defendant in the context of the factual background of this case to be asserting that it is somewhere he still occupies and, at the same time, to argue that there has not been valid service under the rules. That, to me, makes no sense and it is plainly not the intention of CPR 6.9 that it was to apply to a situation where the defendant was accepting that the property where he was served was in fact his current residence. 40. Further, in my view, the court is entitled to take into account the defendant’s evidence that he is still residing there, when assessing what is his usual or last-known address. The claimant was not saying that it believed that he did not reside there at all or that it was not his last-known address, but the pleading was that it was not his principal home any longer. Alternatively, it was saying that the defendant had died. If he had died, it would still be the last-known residence. If he no longer occupied it as his principal home, on the evidence that the claimant had, there was mixed evidence, but they were entitled to take the view, in my view, that this was still his usual or last-known residence. 41. In any event, even if it did fall within 6.9(3), the deputy district judge was entitled to take the view that there were reasonable steps taken where they had spoken to family members and he had given a confused picture and, in those circumstances, they were entitled to serve at the last-known residence. 42. In my view, this is an unattractive argument, where the defendant has accepted that in fact he was residing there, and it is plainly not the mischief that this rule is designed to deal with. The reality is that, whether steps were or were not taken, he was served at a place that he himself said was his current residence. 43. I am satisfied that the claimant has established very clearly that this was his last-known residence. If one looks at the authorities in the White Book, they refer to having actual and constructive notice which was assessed at the date of service. In my view, the deputy district judge was satisfied and was entitled to take the view that this was the last-known address at the time, which, on the information before them, was accepted as being the last-known address. Therefore, the service was good service.”
[18]Having set out the passages from the Deputy District Judge’s judgment in relation to the threefold test, analogous to that which applies in CPR r 39.3(5), the judge went on to consider whether the Deputy District Judge had drawn inferences from the evidence which he was not entitled to do. At [55] she held that he had not done so. She went on, as follows:
“55. . . [T]he evidence of the solicitors and the defendant did not address whether he knew about the possession hearing and the order. The very fact that he did not address it in his statements and left it unclear and also did not address the communications that he was having with the same solicitors as his nephew was something that the district judge was entitled to refer to. 56. The DDJ was entitled to draw inferences from the combination of the absence of information and the fact that the same solicitor had been instructed by both the defendant and his nephew. The inference that he drew and the finding that he made that the defendant must have known about the hearing was one, in my view, that he was entitled to reach. In doing so, he was not contravening any of the facts. What he was saying that, even on the basis of the appellant's evidence, it was either inconsistent or inherently improbable, and questioned the credulity if there was an assertion. But rather more, he was looking into the lacuna of evidence and drawing inferences from all the information that was before him and, in my view, he was perfectly entitled to reach the conclusion that the defendant did know about the hearing, given his relationship with his nephew and that we know for sure that his nephew knew about the hearing, because he sought to come to court. 57. We know, of course, that his nephew knew about the court case not just because he came to court but also because, I think, a letter had been sent to the property by Octavia Housing, making clear there was going to be a hearing. Also, he sent a defence which was filed and signed by the nephew but clearly intended to be a defence to the claim, and he could not have done that if he did not know about the proceedings and had not seen the papers. As I say, there was a lacuna in the evidence which the deputy district judge properly identified where the defendant did not say that he was aware or was not aware of the possession hearing; he simply said nothing. As Ms Moate said, the appellate court should be wary of interfering with findings of fact by the court below, unless they cannot be reasonably justified or they are one no reasonable judge can reach. I am quite satisfied it comes nowhere near that test or threshold; the deputy district judge was plainly entitled to reach the findings that he did on the evidence that was before him. . .”
[19]At [61], she considered the submission that the Deputy District Judge had applied too narrow an approach to CPR r39.3(5) and had not given proper regard to the nature of the tenancy which was an assured tenancy and all the surrounding circumstances which were said to be remarkable. They were said to be allegations of fraud and a deliberate decision not to cooperate with WH Lawrence. It was said that had the Deputy District Judge done so he would have reached a different conclusion. Her Honour Judge Bloom held at [64] that there was no error of law. She held that the Deputy District Judge had made “a proper finding that he was entitled to make on the evidence that was before him.” The Deputy District Judge had found that Mr Al-Chaalan knew about the hearing and he was entitled to find that there was no good reason for failing to attend the hearing. She also held at [66] that the Deputy District Judge clearly had in mind all the relevant factors, including information not being supplied to the defendant’s solicitors, and that he put that in the balance and reached a conclusion he was entitled to reach.

Grounds of Appeal

[20]There are four grounds of appeal before us. The first two are concerned with whether the possession proceedings were properly served at the Property. The first is that it was plainly wrong to decide that the address at clause 1(5(ii)) of the General Terms of the Tenancy Agreement was an address “at which the defendant resides or carries on business within the UK and which the defendant has given for the purpose of being served with proceedings” for the purposes of CPR r 6.8(a). The second is that, in the alternative, it was plainly wrong to decide that the proceedings had been validly served pursuant to CPR r 6.9 because CPR r 6.9(3) had been engaged and had not been complied with.[21]It is accepted that if either of these grounds is successful, it is not necessary to consider grounds 3 and 4. They proceed on the basis that the proceedings were validly served. The third ground is that when considering the test in CPR 39.3(5), by analogy, there were fundamental errors in the assessment of the evidence in that Deputy District Judge Thomas made findings of fact which were contrary to the uncontroverted evidence of Mr Al-Chaalan and his solicitor and Her Honour Judge Bloom was plainly wrong not to interfere with those findings of fact. The fourth ground is in the further alternative. It is that the judges were plainly wrong and/or unjust in not setting aside the possession order in circumstances in which Octavia’s conduct had been egregious.

Grounds 1 and 2 – service of the possession proceedings

[22]CPR r6.8 provides as follows:
“Subject to rules 6.5(1) and 6.7, and except where any other rule or practice direction makes different provision— (a) the defendant may be served with the claim form at an address at which the defendant resides or carries on business within the UK and which the defendant has given for the purpose of being served with the proceedings; or (b) in any claim by a tenant or contract-holder against a landlord, the claim form may be served at an address given by the landlord under section 48 of the Landlord and Tenant Act 1987 …”
Clause 1(5) of the General Terms of the Tenancy Agreement, which is entitled “Service of notices”, is in the following form:
“(i) Notice is hereby given in accordance with Section 48 of the Landlord and Tenant Act 1987 that the address of the Housing Association for the receipt of legal notices, and any other communication arising from this Agreement, is: Octavia Housing & Care Beaumont House 103 Fernhead Road London W9 3EB. (ii) Any legal notice, or any other communication arising from the Agreement, shall be treated as validly served on the Tenant if posted or delivered to the Premises”
. The “Premises” is defined earlier in the Tenancy Agreement by reference to the address of the Property. Section 48 Landlord and Tenant Act 1987 requires a landlord of premises to which the relevant part of the Act applies by notice to furnish the tenant with an address in England and Wales “at which notices (including notices in proceedings) may be served on him by the tenant.” Octavia Housing & Care

Beaumont House

[23]Mr Timson, on behalf of Mr Al-Chaalan, submits that as a matter of language “[A]ny legal notice, or any other communication arising from the Agreement” which appears in clause 1(5(ii)) of the Tenancy Agreement does not extend to the service of a claim form. He says that “any legal notice” is a reference to notices served pursuant to the Tenancy Agreement such as a notice to quit. He says that if the address of the Property was intended to be an address “given for the purpose of being served with the proceedings” for the purposes of CPR r6.8 there would be express wording to that effect in clause 1(5ii)). On the contrary, there is no reference in clause 1(5(ii)) to the address of the Property having been given for such a purpose. That, he says, should be contrasted with clause 1(5(i)) in which express reference is made to section 48 Landlord and Tenant Act 1987 which provides expressly that notices include notices of proceedings.[24]Mr Timson also relies upon CPR r6.11(1), the heading to which is “Service of the claim form by contractually agreed method”. It provides as follows:
“(1) Where— (a) a contract contains a term providing that, in the event of a claim being started in relation to the contract, the claim form may be served by a method or at a place specified in the contract; and (b) a claim solely in respect of that contract is started, the claim form may, subject to paragraph (2), be served on the defendant by the method or at the place specified in the contract.”
He submits that the rule makes clear that a contract must contain an express provision relating to service of proceedings before service can be effected at the address given.[25]In my judgment, Her Honour Judge Bloom and Deputy District Judge Thomas were correct to decide that the Possession Proceedings were properly served pursuant to CPR r 6.8(a). In determining this question it is necessary to construe clause 1(5(ii)) of the Tenancy Agreement in context, applying the well-known principles for the interpretation of contracts.[26]It seems to me that the plain meaning of the phrase “[A]ny legal notice, or any other communication arising from the Agreement” is sufficiently wide to include the service of proceedings arising from the Tenancy Agreement, in the sense of the contractual relationship of landlord and tenant created by it. It is difficult to see how a claim form seeking possession is not a “legal notice” (emphasis added) “arising from the Agreement.” Although it is a formal court document, it is a legal notice which relates to the relationship of landlord and tenant, is served by the landlord in that capacity upon the tenant qua tenant and arises from the terms of the tenancy agreement.[27]The same conclusion is reached when one reads clause 1(5(ii)) in the context of clause 1(5) as a whole. The ordinary and natural meaning of the words are clear. Clauses 1(5(i)) and 1(5(ii)) are mirror provisions. They both refer to “legal notices” and “any other communication arising under the Agreement”. It is accepted that the wording in clause 1(5(i)) includes the service of proceedings. It is difficult to see how, on a proper interpretation of the clause as a whole, that wording should mean something different in clause 1(5(ii)).[28]Rather than assist him, in my judgment, the reference to section 48 Landlord and Tenant Act 1987 in clause 1(5(i)) is an indicator that clause 1(5), including clause 5(ii) is concerned with the service of legal notices including proceedings. As Ms Moate, on behalf of Octavia, submitted, it seems to me that the words in parenthesis in section 48 of the Landlord and Tenant Act 1987 explain what “notices” are. As a result, the reference to section 48 in clause 1(5(i)) does not import express reference to the service of proceedings into that sub-clause creating an absence of such express wording in clause 1(5(ii)). It makes clear, when the mirror provisions are read together, that “legal notices, and any other communication arising from this Agreement” should be interpreted to include legal proceedings. Had it been otherwise, the parties would not have used the same phrasing in both sub-clauses.[29]As Mr Timson pointed out, CPR r6.8(b) explicitly states that, in any claim by a tenant against a landlord, the claim form may be served at an address given by the landlord under section 48 of the Landlord and Tenant Act 1987. Mr Timson submitted that if “legal notice” includes proceedings, there would be no need for CPR r6.8(b). It seems to me that that is not the case. CPR r6.8(b) is permissive and additional to CPR r6.8(a). It allows the landlord to be served at the address given for the purposes of section 48 Landlord and Tenant Act 1987. It is not prescriptive. It has no direct effect upon the proper interpretation of “legal notice” in the Tenancy Agreement. The draftsman of the Tenancy Agreement was obviously seeking to comply with section 48 by making reference to it in clause 1(5(i)). It seems to me that the reference has no other significance.[30]The same is true of CPR r6.11. It is also permissive. If a contract provides that in the event of a claim being started in relation to the contract, the claim form may be served by a method or at a place specified in the contract; and a claim solely in respect of that contract is started, the claim form may, subject to other provisions, be served on the defendant by the method or at the place specified in the contract. It does not provide that a contract must contain an express provision relating to service of proceedings before service can be effected at that address, as Mr Timson suggests.[31]Furthermore, it seems to me that this interpretation is consistent with the terms of the Tenancy Agreement read as a whole. It does not contain a separate provision dealing with service of proceedings upon the tenant which would be a surprising omission if clause 1(5ii)) should be interpreted in the way Mr Timson suggests. To put the matter another way, reading the Tenancy Agreement as a whole, it would be surprising if clause 1(5(i)) contained the address for service upon the landlord but there was no express provision in relation to service of proceedings upon the tenant and clause 1(5ii)) should be interpreted narrowly.[32]It is also consistent with the nature of the Tenancy Agreement. The landlord is required by statute to provide the tenant with an address for service of notices arising under the tenancy agreement, including legal proceedings. That must be because a landlord whether an individual or a corporate or other entity, may have a number of addresses and the tenant is entitled to certainty. In an assured tenancy agreement, such as the Tenancy Agreement, however, the tenant is required to use the demised premises as his only or principal home and not to part with possession of it. The premises in question, therefore, are the natural place for service.[33]Mr Timson also took us to a number of authorities which I did not find helpful. The first was T&L Sugars Ltd v Tate & Lyle Industries Ltd [2014] EWHC 1066 (Comm). It was concerned with a number of preliminary issues arising from a share and business sale agreement (the “SBSA”). As Flaux J, as he then was, explained at [1] of his judgment, the preliminary issues concerned whether or not the claims were issued and served in time within the meaning of the SBSA. Issue one was whether the claimant’s claims had been “issued and served” within the meaning of clause 11 of the SBSA. Flaux J held that “served” in clause 11.3 of the SBSA meant “served” in accordance with the CPR and that in that context, “issued” meant issued in accordance with English procedural rules (see [15] of his judgment). Mr Timson drew our attention, in particular, to [17] at which Flaux J stated that the SBSA envisaged two separate regimes, one for the giving and receipt of contractual notices and the other for the issue and service of proceedings and to [19] at which he stated that the contrasting provisions of the SBSA, to which he had referred, showed that the parties were alive to the service of legal process being something distinct from the giving or receipt of a contractual notice.[34]Although this authority illustrates that it is possible to make a distinction between the service of contractual notices and the service of proceedings, it does no more. It turns on the specific provisions of the SBSA which do not bear a great deal of resemblance to clause 1(5) of the Tenancy Agreement.[35]In Learning Curve (NE) Group Ltd v Lewis [2025] EWHC 1889 (Comm), HHJ Russen KC was concerned with the timing of the issue and service of a claim form and whether the share purchase agreement in that case provided for anything other than service in accordance with the CPR. He held at [177] - [178] that “service” meant service under the CPR because the agreement in issue in that case “says nothing expressly about the service of legal proceedings, as opposed to contractual notices.” Once again this turns on the specific wording of the contract in that case and is of no assistance to us here.[36]The same is true of Ener-G Holdings plc v Hormell [2012] EWCA Civ 1059; [2013] 1 All ER (Comm) 1162. The clause in that case expressly included “the documents which start any legal proceedings.” Mr Timson says that this is the language that clause 1(5(ii)) lacks. This was a case in which the judge at first instance had held that Ener-G Holdings plc was precluded from pursuing a claim based on alleged breaches of warranties because it had failed to serve the claim form within the period specified in the agreement. The agreement contained express terms about the service of notices and the service of proceedings. Once again this turns upon the wording of the particular agreement and is not of assistance to us.[37]Ms Moate also referred us to Khan v D’Aubigny [2025] EWCA Civ 11; [2025] Ch. 168. That appeal was concerned with whether a valid energy performance certificate, a gas safety record and the current version of a document entitled “How to Rent:the Checklist for Renting in England” had been “given” to the tenant. Having found that they were sent by first class post, the deputy district judge held that the documents were deemed to have been served either pursuant to section 7 of the Interpretation Act 1978 or pursuant to clause 13.2 of the tenancy agreement which applied where any “notice” was sent to the tenant “under or in connection with” the tenancy agreement. Both the judge and the Court of Appeal dismissed the tenant’s appeal. Nugee LJ, with whom Cobb and Newey LJJ agreed, held that section 7 of the Interpretation Act 1978 did not apply. He went on to hold that a “notice” for the purposes of clause 13.2 of the tenancy agreement was something in writing that notified the recipient of something for some formal purpose and that the letter enclosing the required documents was a “notice” for the purposes of the clause. Nugee LJ stated as follows:
“60. In the case of the tenancy agreement, therefore, I consider that a notice would include anything in writing by which the Khans or Mrs D’Aubigny formally notified the other of something in their capacity as landlords and tenant respectively. That is pretty much the same as Mr Bates’ formulation of anything which either might need to give to the other for some legal purpose. It is also not very different from Mr Westgate’s alternative formulation of documents that affected the parties’ legal rights in relation to the Flat. All three of these seem to me to express much the same concept.”
[38]Of course, the circumstances of the Khan appeal are different from the ones with which we are concerned and the terms of the tenancy agreement in that case were not the same as the ones with which we are concerned. Furthermore, in that appeal, this court was not concerned with a contrast (if any) between the service of contractual notices and the service of proceedings. It is true to say, however, that in the context of that tenancy agreement, Nugee LJ took a broad view of what a notice includes. Such an approach is not inconsistent with what I consider to be the proper interpretation of the clause in this case.[39]It follows that I would not allow the appeal on this ground. In my judgment, the possession proceedings were properly served at the Property under CPR r6.8(a). In the circumstances, Ground 2 does not arise. Despite the fact that it was argued quite extensively before us, I do not consider that it is appropriate to address the treatment of CPR r 6.9(2) and (3) here. Suffice it to say that I have serious doubts as to the way in which the Deputy District Judge and Her Honour Judge Bloom addressed this issue.[40]It is not in dispute that where a defendant is seeking to set aside an order made at a summary possession hearing which they did not attend, CPR r3.1(2)(m) applies and the requirements of CPR r39.3(5) apply by analogy: Hackney LBCv Findlay [2011] EWCA Civ 8; [2011] HLR 15 at [24]. Pursuant to CPR r39.3(5) the Court is required to determine whether the applicant(a) acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him;(b) had a good reason for not attending the trial; and(c) has a reasonable prospect of success at the trial.[41]The manner in which such applications are to be dealt with was addressed by Lord Neuberger MR in Bank of Scotland Plc v Pereira (Practice Note) [2011] EWCA Civ 241; [2011] 1 W.L.R. 2391 at [53] and [54]. He explained that it is only in exceptional cases that the court should consider hearing oral evidence and allowing cross examination. He stated the following at [53]:
“In the great majority of cases, a judge hearing such an application should not allow oral evidence on the basis that he or she can properly: (i) accept all the factual evidence given by the applicant, and allow the application, (ii) dismiss the application even on the assumption that all the applicant’s evidence is true, (iii) allow the application even though of the view that some of the applicant’s evidence is or may be untrue, or (iv) reject some (or even all) of the applicant’s evidence on the basis that it is inconsistent or inherently improbable, and accordingly dismiss the application. . . . It will only be in exceptional cases, where there is no reason on the face of it to doubt the applicant’s evidence, the respondent reasonably wishes to challenge the evidence, and the evidence is likely to be crucial to the outcome of the application, that the court should even consider allowing oral evidence and cross-examination on a r.39.3 application”
. Lord Neuberger MR also addressed the circumstances in which there is an appeal against a decision made pursuant to CPR r39.3. At [27], he stated as follows:
“An appeal against a judge’s decision under CPR r 39.3 to refuse (or indeed to allow) an application to set aside a judgment does not, at least normally, involve challenging a discretion. However, an appellate court should be slow to overturn a decision of this nature, unless satisfied that the judge went wrong in principle. The decision will often involve making findings of fact, and, while the findings will normally be based on written evidence only, an appellate court should never lose sight of the principle that the first instance tribunal is the primary finder of fact. In so far as the decision involves a balancing exercise, an appellate court should pay proper respect to the judge’s views. Another way of making essentially the same point is that the appellate court normally has a reviewing, as opposed to a rehearing, function in such a case, and it can therefore only interfere if satisfied that the judge was wrong.”
[42]Mr Timson submits that the judges below were wrong and that the Deputy District Judge was not entitled to make the findings he did on the evidence before him. In particular, he contends that: Deputy District Judge Thomas was wrong to make a finding that Mr Al-Chaalan was aware of the proceedings prior to the Possession Order being made, or any point prior to September 2023; and Her Honour Judge Bloom was wrong to reach the conclusions she did and to refuse to interfere with the finding of fact on the usual test as that test was not applicable where there had been no trial or cross-examination.[43]In my judgment, the Deputy District Judge was entitled to find as he did and Her Honour Judge Bloom was right not to interfere with those findings. First, as Lord Neuberger MR pointed out, it is only in very exceptional circumstances that there will be oral evidence and cross-examination in circumstances such as these. Nothing turns on the lack of cross-examination.[44]Secondly, as Lord Neuberger stated, a judge is entitled to dismiss the application even on the assumption that all the applicant’s evidence is true, (see Pereira at [53(ii)]) or to reject some (or even all) of the applicant’s evidence on the basis that it is inconsistent or inherently improbable (see Pereira at [53(iv)]) and accordingly dismiss the application.[45]Mr Al-Chaalan’s statement in support of the application did not state that he was unaware of the date of the possession hearing but is silent on the point. At paragraph 15 of his witness statement, Mr Al-Chaalan stated that his nephew had “tried to deal with this himself, without legal assistance” and that it is unfortunate but something done by him in good faith “because of my financial circumstances and he was trying to avoid significant legal costs.” He went on in the same paragraph to add that:
“[M]y nephew tried to shield me from what has been going on in order not to cause me distress, given my medical condition, however, I now see that he should have asked my solicitor to get involved much earlier.”
He does not state that he was not aware of the possession hearing date.[46]Amongst other things, Mr Anyamene, Mr Al-Chaalan’s solicitor, stated in his witness statement that: Octavia’s solicitors wrote to WH Lawrence on or around 26 April 2023 to inform them they had issued proceedings against Mr Al-Chaalan (paragraph 11g); WH Lawrence wrote to Octavia on 3 May 2023 stating that they had been “formally instructed” by Mr Al-Chaalan (paragraph 11h); and went on at paragraph 11j to state:
“I have never received any further correspondence or documents from the Claimants or its solicitors, and the First Defendant and I were unaware of the subsequent progress of the Claim until recently. . . .”
Mr Anyamene did not state that he was unaware of the date of the possession hearing.[47]Further, it was not in dispute that Mr Al-Chaalan’s nephew, Mr Abualkibash, was aware of the date of the possession hearing and that he attended court that day although he was late for the hearing and that he was aware of the Possession Order and that Mr Abualkibash instructed the same solicitors as Mr Al-Chaalan.[48]In the circumstances, it seems to me that the Deputy District Judge was entitled to make the inference he did and it seems to me that he did so by a combination of the situations outlined by Lord Neuberger MR at [53(ii) and (iv)] of Pereira. He accepted the evidence given which was silent about Mr Al-Chaalan’s knowledge of the hearing date and that of his solicitor, accepted the evidence in relation to Mr Al-Chaalan and his nephew and the other evidence filed on Mr Al-Chaalan’s behalf and for good measure, rejected the suggestion that Mr Al-Chaalan was not aware of the hearing (rather than the evidence to that effect which was missing) on the basis that it was inherently improbable.[49]As Lord Neuberger pointed out, an appellate court should be slow to overturn a decision of this nature, unless satisfied that the judge went wrong in principle. In this case, the decision involved findings of fact which the Deputy District Judge was entitled to make. In order to interfere with the findings, it would be necessary, for example, for there to be evidence that Mr Al-Chaalan did not know of the hearing. That was not the case. The Deputy District Judge was entitled to draw the inferences he did from the evidence before him. Furthermore, Her Honour Judge Bloom was entitled to decide as she did. She applied the correct test to be found in Pereira at [27]. She was not satisfied that the Deputy District Judge was wrong in principle.[50]It follows that I would dismiss Ground 3.[51]Mr Timson submits that the Possession Order should be set aside on the basis that Octavia’s conduct in this matter was egregious. He says that that conduct amounted to an unusual and highly compelling factor; it had the effect of causing Mr Al-Chaalan’s non-attendance at the possession hearing and was a factor in the delay in seeking to set aside the Possession Order.[52]In his written argument, he referred us to the commentary in the 2025 White Book at 39.3.1.1. It states that even though the court does not have power to set aside a possession order made in a tenant’s absence under CPR r39.3(3), CPR r3.1(2)(m) (now r3.1(2)(p)) “. . . is amply wide enough to give the court power to set aside the possession order if, in its discretion, it considers that the interests of justice demand it”: (Forcelux Ltd v Binnie [2009] EWCH Civ 854; [2010] HLR 20. He also referred to the judgment of Arden LJ, as she then was, in Hackney LBC v Findlay [2011] EWCA Civ 8; [2011] HLR 15 at [24] where she noted that in the absence of some unusual and highly compelling factor as in Forcelux, the court should apply the requirements of CPR r39.3(5) by analogy. She added that this was in addition to, and not in derogation of applying CPR r3.9 by analogy as that provision requires the court to have regard to all the circumstances, in any event.[53]Mr Timson submits that Octavia’s conduct was quite extraordinary. First, he says that fraud was mentioned in correspondence, in the pleadings and in the witness statement of Ms Lartey, in response to the application to set aside the Possession Order. He says, however, that it was never pleaded or articulated with the necessary particularity. Secondly, he relies upon what he says was Octavia’s deliberate choice not to co-operate with Mr Al-Chaalan’s solicitors in May 2023 and their failure to provide those solicitors with a copy of the Possession Order, the failure to serve them with a notice of the application for eviction and the eviction notice. Thirdly, he relies upon Octavia’s approach to Mr Al-Chaalan’s alleged death. Octavia’s solicitors were corresponding with WH Lawrence from 12 January 2023 to 21 April 2023 prior to issue of the claim and yet on Octavia’s case it was told on 7 January 2023 that Mr Al-Chaalan was dead and it proceeded on that basis and issued proceedings against not only Mr Al-Chaalan but also his personal representatives. Mr Timson says that even after 3 May 2023, when Octavia was made aware that W H Lawrence were instructed by Mr Al-Chaalan, and therefore Mr Al-Chaalan was clearly alive, Octavia took no steps to remedy the impression it had given in the pleadings. Lastly, Mr Timson points to the fact that Octavia failed to issue proceedings against Mr Abualkibash, resulting in him having no standing in the proceedings.[54]This ground was not raised in quite the same way below. Octavia’s conduct was criticised before the Deputy District Judge but he records that the legal test to be applied was analogous to CPR r 39.3(5) and that that was agreed. He also stated that he had:
“. . . considered the points made persuasively by Mr Timson. C [Octavia] acted improperly or remarkably as he put it not informing WH Lawrence of the details of the proceedings when WH Lawrence contacted C [Octavia] in May 2023. I am not persuaded by Ms Moate’s arguments that C [Octavia] needed to wait for official authority or a notice of being on record before speaking to WH Lawrence and I agree with Mr Timson. If a solicitor in a regulated firm writes to a party saying we represent the client it is to be take at face value. I find Octavia were under a misconception they could not communicate directly, but given the finding of fact whilst that conduct was regrettable I don’t find that affects the fact D1 [Mr Al-Chaalan] was aware and should have sent WH Lawrence to it.”
In relation to delay in seeking to set aside the Possession Order, the Deputy District Judge stated that given his findings of fact, Mr Al-Chaalan was aware of what was going on and was aware of the Possession Order when it was made and that he should have acted promptly in June to have it set aside.[55]Her Honour Judge Bloom addresses this issue at [61] of her judgment. She records that Mr Timson submitted that the Deputy District Judge had erred because he had taken a narrow and rigorous approach to CPR r39.3 and had not had regard to all the surrounding circumstances, including the allegations of fraud and the other matters to which Mr Timson has referred us. She concluded at [66] that the Deputy District Judge clearly had all relevant factors in mind and took into account that Mr Al-Chaalan’s solicitors had not been sent information. She stated that “he put that in the balance and reached a decision he was entitled to reach.”[56]I agree with Ms Moate that this ground is new in the sense that it has not been said before that the conduct relied upon was “egregious”. It also seems to me that the conduct relied upon has been expanded to include the treatment of Mr Al-Chaalan’s alleged death. In any event, in my judgment, this ground has no merit. First, there is nothing in the allegation that fraud was not properly pleaded. The only reference to fraud is in the prayer for relief in the Particulars of Claim. An unlawful profit order was sought pursuant to section 5(1) of the Prevention of Social Housing Fraud Act 2013 on the basis that the Property had been sub-let. It was not necessary to plead fraud in order to maintain the prayer and “fraud” merely appeared in the title to the Act. In fact, Mr Timson did not press this aspect of this ground in oral argument.[57]Secondly, the Deputy District Judge dealt with Octavia’s failure to engage with WH Lawrence. He concluded that it was “regrettable” but did not affect his finding of fact that Mr Al-Chaalan was aware of the possession hearing and the Possession Order. It seems to me that Mr Timson’s submissions are seeking to go behind that finding without appealing it directly. That is not open to him nor is he correct to suggest that the Deputy District Judge did not take the conduct into account. Further, Her Honour Judge Bloom quite rightly stated that the Deputy District Judge “put that in the balance and reached a decision he was entitled to reach.”[58]Thirdly, I do not consider that the failure to amend the proceedings after it became apparent that WH Lawrence were instructed on behalf of Mr Al-Chaalan can be elevated to amount to egregious conduct. Neither do I consider that commencing possession proceedings against Mr Al-Chaalan rather than Mr Abualkibash was conduct which would warrant the exercise of the discretion to set aside the Possession Order.[59]Further, taking all the conduct which is relied upon in the round, despite the fact that some of it is “regrettable” as the Deputy District Judge described it, it is not “egregious”. Egregious is a very strong word. Accordingly, I would dismiss this ground of appeal.[60]For all of the reasons set out above, I would dismiss the appeal in its entirety.

Baker LJ:

[61]I agree.

Newey LJ:

[62]I also agree.