Ben Hubbard & Anor v James Barr [2026] EWCC 34

[2026] EWCC 34

Claim Number M00BA216

Hearing Heard on 1 May 2026

Date 3 June 2026

IN THE COUNTY COURT AT BATH

Before

DISTRICT JUDGE FENTEM

Between

MR BEN HUBBARD and MR MICK NAUMANN (as fixed charge receivers)Claimant

MR JAMES BARRDefendant

The Claimants: Mr Cunliffe, Counsel, instructed by Lawrence Stephens Limited

The Defendant: Acting as a litigant in person for in person

JUDGMENT

Introduction

[1]This is my judgment following the first hearing of a possession claim under CPR r.55.8. That first hearing was adjourned on a number of occasions, but it remained a first hearing. No defence has yet been filed. Therefore, under r.55.8(1), I may either decide the claim or give case management directions. Under r.55.8(2), ‘where the claim is genuinely disputed on grounds which appear to the court to be substantial’, I must allocate to a track or give directions to enable it to be allocated. The test of a genuine dispute on substantial grounds means that I should only determine the claim summarily if it is clear that any defence would not have any more than a fanciful prospect of success. The threshold is the same as that applicable to an application to set aside a statutory demand or for summary judgment: Global 100 Limited v Laleva

[2021] EWCA Civ 1835

Background

[2]The claimants are receivers appointed by TAB London Limited (TAB) under a legal charge dated 12 September 2023 (the charge) over 120c Charlton Park, Midsomer Norton, Radstock BA3 4BP (the property) by Roderick Barry Thorner, the owner of the registered freehold title to the property. Mr Thorner charged his interest in the property to secure a £600,000 loan made by TAB to Flower and Hayes Limited (the company), of which Mr Thorner is the sole director.

[3]On 6 January 2025 Mr Thorner entered into an assured shorthold tenancy agreement (AST) with Mr Barr. Under the AST, Mr Barr was let into exclusive possession of the property for a term of 12 months at a rent of £2,000 per month. The term having expired, Mr Barr now holds under a statutory periodic tenancy. Until 1 May 2026 it was a statutory periodic AST, but because of the amendments made by the Renters Rights Act 2025 (RRA), it became a periodic assured tenancy on that date. Those amendments do not directly affect the claim before me.

[4]Cl.12.1 of the AST read as follows:

‘The Landlord reserves the right to re-enter the Property if: (a) the Rent is unpaid 21 days after becoming payable whether it has been formally demanded or not; or (b) the Tenant is declared bankrupt under the Insolvency Act 1986; or (c) the Tenant has breached the agreement; or (d) any of the Grounds 2, 8, 10-15 and 17 set out in Schedule 2 of the HA 1988 apply. This clause 12.1 does not affect any rights of the Tenant under the Protection from Eviction Act 1977. The Landlord cannot evict the Tenant without a court having first made an order for possession.’

[5]I am told that a clause in similar form is used in a large number of ASTs.

[6]Mr Thorner had covenanted under cl.7 and Sch.2 para.17 of the charge not to grant any tenancy affecting the property without the prior written consent of TAB. Bethany Jacobs, a solicitor who has given evidence on behalf of the receivers, states that the grant of the lease was in breach of these provisions. Except insofar as it affects whether it is just and equitable to dispense with notice, that point seems to me of no relevance to these proceedings. These proceedings are not brought by TAB on the basis that Mr Barr is an unauthorised tenant, but by the receivers.

[7]After a breach of the loan to the company or of the charge itself, on 28 April 2025 the claimants were appointed as fixed charge receivers over the property under TAB’s powers given by cl.10.1 of the charge. As is common, and as in any event is made explicit by cl.10.5 of the charge, the receivers were on appointment the agents of Mr Thorner. They were empowered (including explicitly by cl.11.7 of the charge) to realise the property by taking possession and seeking to sell it, and to take proceedings for that purpose.

[8]According to Ms Jacobs’ first statement, after the receivers’ appointment, various valuations of the property were carried out, and it was assessed that its open market value with vacant possession was between £550,000 and £675,000. With a sitting tenant, its value was assessed as between £400,000 and £525,000. The property was offered at auction in July 2025, but a sale at £500,000 fell through. The abortive sale is said to have been to ‘the Borrower’, but that phrase is ambiguous as it is inconsistently used in Ms Jacobs’ statement to mean both Mr Thorner and his company. In any event, as at 1 December 2025, the outstanding loan due to TAB was just short of £850,000.

Procedural History

[9]Notice was served under s.8 of the Housing Act 1988 (HA) on 24 September 2025, relying on Grounds 2, 8, 10 and 11 of HA Sch.2. On 12 December 2025 the receivers issued these proceedings for possession against Mr Barr. The only ground for possession relied on is Ground 2. In these proceedings the receivers act as agents of Mr Thorner, the landlord. The reason why they seek possession is, as set out in Ms Jacobs’ first statement, in order to sell it on the open market for the best price they can get and to offset the proceeds against the amount owed to TAB.

[10]The matter was first listed for a short CPR r.55.8 hearing on 6 February 2026, when it came before me. The receivers were represented by Counsel, and Mr Barr attended in person. It was identified that the question arose of whether the notice required by Ground 2 of HA Sch.2 had properly been given, and that that question could not properly be dealt with in the time available: in particular, the court needed to hear submissions on whether the language of cl.12.1 of the AST amounted to notice for the purpose of Ground 2.

[11]I therefore adjourned the first hearing with directions that the claimants should file and serve a statement if they wished to contend that it was just and equitable to dispense with notice, which they did. I also directed that they were to file a written skeleton argument directly with me no later than 2 days before the adjourned hearing.

[12]When the matter was next listed on 6 March 2026, they had failed to comply with the latter obligation. Mr Barr had instructed a representative to appear for him. I therefore adjourned the hearing again, and made an order for costs against the receivers.

[13]The second adjourned hearing was due to take place on 21 April 2026, but that hearing had to be adjourned because of judicial unavailability, meaning that the case was finally heard on 1 May 2026.

[14]It is important to remember that these proceedings are not brought by the mortgagee. Whether Mr Barr may be an unauthorised tenant vis-à-vis TAB is not at issue. In a statement produced shortly before the hearing, Mr Barr referred to a proposal made by Mr Thorner to raise sufficient funds to pay the entirety of the loan. There was no evidence to suggest this was a realistic prospect, but it is not relevant to the claim. The powers of the court under s.36 of the Administration of Justice Act 1970 are only available in an action brought by the mortgagee for possession of the dwelling-house. It is not available where the claim is brought by agents of the landlord.

Representation

[15]At the hearing on 1 May 2026, the claimants were represented by Mr Cunliffe of Counsel, whose submissions and skeleton argument were very helpful in my consideration. Mr Barr appeared in person, but I allowed the duty solicitor Ms Pattison to make submissions on his behalf despite not being formally instructed by him. Ms Pattison had only a very short period on the day of an exceptionally busy possession list to familiarise herself with the case, but her submissions were precise, cogent and very persuasive. Her performance was remarkable, and I am very thankful indeed for her assistance in this case.

Notice under Ground 2

[16]Ground 2 is a mandatory ground, in that the court must make an order for possession if its conditions are satisfied. Before the amendments made on 1 May 2026 by the RRA, Ground 2 read:

‘The dwelling-house is subject to a mortgage granted before the beginning of the tenancy and – (a) the mortgagee is entitled to exercise a power of sale conferred on him by the mortgage or by section 101 of the Law of Property Act 1925; and (b) the mortgagee requires possession of the dwelling-house for the purpose of disposing of it with vacant possession in exercise of that power; and (c) either notice was given as mentioned in Ground 1 above or the court is satisfied that it is just and equitable to dispense with the requirement of notice; and for the purposes of this ground “mortgage” includes a charge and “mortgagee” shall be construed accordingly.’

[17]The reference to giving notice ‘as mentioned in Ground 1’ refers back to the following in Ground 1 of HA Sch.2: ‘Not later than the beginning of the tenancy the landlord gave notice in writing to the tenant that possession might be recovered on this ground…’.

[18]It has not been disputed that sub-paragraphs (a) and (b) of Ground 2 are satisfied. The question I have had to grapple with is the one raised by sub-paragraph (c): was notice given by virtue of cl.12.1 of the AST (and if not, should I dispense with notice)?

[19]There is no prescribed form of a notice. Neither Mr Cunliffe nor Ms Pattison were able to unearth any authority directly bearing on the content of notice under Ground 2. However, my attention was drawn to a number of authorities concerning Case 16 under the Rent Act 1977, in particular Fowler v Minchin

[1987] 1 EGLR 108

and Springfield Investments Ltd v Bell

[1991] 1 EGLR 115

[20]Case 16 of Sch.15 reads:

‘Where the dwelling-house was at any time occupied by a person under the terms of his employment as a person employed in agriculture; and (a) the tenant neither is nor at any time was so employed by the landlord, and is not the widow of a person who was so employed, and (b) not later than the relevant date, the tenant was given notice in writing that possession might be recovered under this Case, and (c) the court is satisfied that the dwelling-house is required for occupation by a person employed, or to be employed, by the landlord in agriculture.’

[21]Sub-paragraph (b) of Case 16 is so similar to the language of the notice requirement in Grounds 1 and 2 of HA Sch.2 that authority on the meaning of the notice requirement in Case 16 is in my judgment highly persuasive in the current case.

[22]Both parties agreed that a notice can be given in the tenancy agreement itself; it does not have to be a separate document. I agree. That conclusion is at the very least implicit in both Fowler and Springfield. Ground 2 does not state that a separate notice must be given, but only that ‘notice’ (not ‘a’ notice) has to be given. That requires notification, and a tenant can be notified of a particular risk in the tenancy agreement just as she can in a separate document.

[23]As to the content of a notice, in Fowler, the Court of Appeal held at pp.110-111 that notice under Case 16: ‘…does not have to follow any particular form, but in my judgment it must state quite specifically that possession might be recovered under the provisions of the Act: that is to say, to make it clear that a situation would obtain which would be a compulsory situation so far as the tenant was concerned. In my judgment the alleged term of the so-called agreement that the defendant would vacate on 28 days’ notice if the plaintiff required it for a farm worker is no more than a voluntary undertaking that he would do so. It does not indicate or suggest that the plaintiff would be entitled to go to court to require him to give up possession and indeed would do so if he required the dwelling for a farm worker. However informal the phraseology might be, it would have to satisfy that requirement’.

[24]As was pointed out in Springfield, the language quoted above in Fowler must be read in the context of the facts of the case. In Fowler, the only written notice relied on was a notice stating that ‘the defendant would vacate on 28 days’ notice if the plaintiff required it for a farm worker’. This was not a peremptory obligation of the defendant, but a voluntary undertaking.

[25]In Springfield, there was no written tenancy agreement. Before the tenant had gone into occupation, he had been given the rent officer’s certificate of fair rent, which set out among other things the landlord’s proposed terms. Included in those terms was the following: ‘It is proposed to let on a regulated tenancy basis, subject to the provisions of Case 16, 15th Sch Rent Act 1977 (wherebyrepossession could be obtained to house an agricultural worker, employed, or to be employed by the Landlord)…’.

[26]The Court of Appeal held that this was sufficient notice for the purpose of Case 16: the tenant went into occupation on the terms of that certificate, and the document drew specific attention to Case 16. Case 16 was fairly brought to the tenant’s attention.

[27]Bradshaw & Martyn v Baldwin-Wiseman

(1985) 17 HLR 260

was a case about Case 15 of the Rent Act 1977 (owner-occupier requiring possession as a residence for herself or a member of her family, and related circumstances). Case 15 is therefore similar to, though not identical to, Ground 1 under HA Sch.2. It also requires notice to be given that the landlord may seek to rely on the ground as a reason for retaking possession. Although Bradshaw was mainly concerned with the question of whether it was just and equitable to dispense with notice, Griffiths LJ addressed the reasons why notice was required at p.264:

‘The purpose of giving the written notice is obvious and important. It is of the utmost importance to a tenant that he should appreciate when he takes rented property whether or not he is obtaining a secure tenure. I can think of nothing likely to have a greater effect on the way people order their lives than the knowledge one way or the other whether or not they have a secure home.’

[28]This dictum must be handled with some care, because of the significant difference between the nature of the security of tenure under the Rent Act 1977 and the much more circumscribed security that was applicable to an AST (especially before 1 May 2026, when HA s.21 was repealed). What I draw from it, however, is that the notice must enable the reasonable tenant to understand the nature of any additional risk to her security of tenure. No specific form of words is required, let alone prescribed. To assess whether notice has been given, the words purporting to give notice must be read as a whole, in their proper context.

The Arguments on Notice

[29]Mr Cunliffe said that the language of cl.12.1 of the AST was sufficient notice that the landlord may seek to rely on Ground 2. The reference to the ‘right to re-enter’ might in the first instance be referable to forfeiture, but that is a sufficient reference to the right to retake possession. There is specific reference to Ground 2, which Mr Barr could have looked up if he were left in any doubt. The final sentence of cl.12.1 makes clear that any eviction could only be pursuant to a court order, so the tenant could not conclude that self-help (and accompanying rights to relief from forfeiture) was the only thing that cl.12.1 was concerned with.

[30]Ms Pattison argued that the language of cl.12.1 does not sufficiently draw the tenant’s attention to the landlord’s specific intention to rely on Ground 2 in the event that the mortgagee requires possession in order to exercise its power of sale. The words of Ground 2 are not set out or summarised. If Mr Barr had cared to search online to find out what cl.12.1 meant, he would have only realistically have found out about forfeiture, which is what a right of re-entry is all about. The final sentence is referable not to Ground 2 but to the Protection from Eviction Act 1977, which is the statute that is identified in the immediately preceding sentence.

My Decision on Notice

(d) My Decision on Notice

[31]After careful consideration of the arguments made by both parties, of the terms of the AST and the HA, and of the authorities to which my attention has been drawn, I have come to the conclusion that cl.12.1 does not give sufficient notice to the tenant that possession may be recovered under Ground 2. My reasons are: 31.1. As I have said, it is common ground that a Ground 2 notice can be contained in the body of the tenancy agreement. The question is whether the words of cl.12.1 (and specifically cl.12.1(d)) constitute notice for the purpose of that ground. This is not the same as the legal interpretation and effect of clause 12.1. If notice that the landlord may rely on Ground 2 is given by the relevant words, it does not matter whether those words are otherwise legally enforceable or not (e.g. as a forfeiture clause). 31.2. The question of whether cl.12.1(d) is notice under Ground 2 must be addressed objectively, by reference to what the reasonable person in the position of Mr Barr might understand from the clause in its proper context: FSHC Group Holdings Ltd v GLAS Corp Ltd

[2019] EWCA Civ 1361

;

[2020] Ch 365

. Any particular characteristics of Mr Barr (none of which have been relied on) should not affect the interpretation of the clause as a notice. 31.3. The purpose of the notice requirement under Ground 2 is to enable the reasonable tenant to appreciate the risk that a mandatory ground for repossession of the property may be relied on, if TAB, the mortgagee, intended to exercise the power of sale. Notice enables the tenant to understand that her security of tenure is at risk if the particular circumstances of Ground 2 applied. That risk is of a different kind from the risk to security of tenure associated with a shorthold tenancy under the former HA s.21 in that it is not dependent on the landlord but on a third party to the tenancy. The notice is required because the tenant must be warned that the tenancy is qualitatively different from a tenancy of an unencumbered property. 31.4. Taken as a whole, cl.12.1 is explicitly concerned with a reservation of right of re-entry, i.e. forfeiture. Such a right is exercisable, usually, in the event of breach or because of acts or omissions of the tenant. Except for Ground 2, every other trigger for the exercise of the right in cl.12.1 is related to breach of the tenancy, the conduct of the tenant or (in the case of bankruptcy) to the status of the tenant. Furthermore, in most cases other than cases of irremediable breach, forfeiture gives rise to a right of the tenant to apply for relief from forfeiture. The tenant may escape the consequences of forfeiture so long as she makes out any preconditions for relief: the power vested in the court to grant relief is not available in a possession claim brought under Ground 2. 31.5. Even within cl.12.1(d) taken alone, the reference to Ground 2 in cl.12.1(d) is buried among fault-based grounds. No mention is made of the circumstances in which it might be relied on. No mention is made of the mortgagee, or its potential exercise of a power of sale. There is no indication that the tenant will be obliged to give up possession if the ground is relied on. It does not, to cite Fowler, make it clear that a situation would obtain which would be compulsory situation so far as the tenant concerned. Although the reasonable tenant may be able to discover for herself what Ground 2 says, the reference remains embedded in a clause which defines circumstances in which the landlord would be entitled, as I have said, to forfeit the lease. 31.6. The mechanism for re-entry, whether by court order or otherwise, is quite different from the mechanism for possession under HA ss.7 and 8. The framing in the final two sentences of the clause acknowledges that a court order for possession is required before eviction is permissible. It does not redirect the tenant’s attention to a situation in which a court will have no power to do otherwise than make an order. 31.7. In my judgment, and taken as a whole, cl.12.1(d) does not objectively notify the tenant that she will be required by a court to give up possession under Ground 2 if its conditions are met. It lacks the clarity that is required, and does not constitute notice under Ground 2.

Just and Equitable to Dispense with Notice

[32]Even where no notice is given, a court will allow a landlord to rely on Ground 2 if it is just and equitable in all the circumstances to dispense with notice. The parties made submissions on this point, but I heard no oral evidence.

[33]The order I made on 6 February 2026 required the receivers to file a statement setting out their case on dispensation if they wished to take the point. They of course bear the burden of persuading me that I should dispense with notice, and the question of dispensation is not touched on in the claim form and particulars of claim. It was therefore necessary that, if they were to try to persuade me to dispense with notice, their case should be set out. Mr Barr, however, was not obliged to respond at that stage. The purpose of the 6 February 2026 order was to establish whether the receivers intended to raise the point, and if so on what basis.

[34]It seems to me that the question of whether I should dispense with notice is not one which is amenable to summary determination of the sort envisaged by CPR r.55.8. As Mr Cunliffe explained to me in his very helpful skeleton argument, I will have to take into account all the circumstances of the case, including circumstances affecting the person seeking to rely on Ground 2, the circumstances of the tenant, and the circumstances in which failure to give notice arose: see Bradshaw. That in turn requires a more careful analysis of the evidence that is available after brief submissions on written statements. In particular, Mr Barr has not set out his case in a defence or a witness statement. His evidence may need to be tested under cross-examination, and Mr Barr must have the opportunity to challenge any assertions made in this regard by the receivers.

[35]The submissions made to me in the course of the hearing 1 May 2026 demonstrate that, on the question of whether it is just and equitable to dispense with notice, the claim appears to be genuinely disputed on substantial grounds. What I propose to do is therefore to give directions for the resolution of this issue. I will hear submissions on appropriate directions. District Judge Ross Fentem 3 June 2026