Chun Hing Tse v Tulsense Limited [2026] EWHC 1687 (Ch)

[2026] EWHC 1687 (Ch)Case No CH-2025-000026
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
ON APPEAL FROM THE ORDER OF HHJ MURCH DATED 16 JANUARY 2025
SITTING IN THE COUNTY COURT AT LUTON (REF: F00HF120)
Venue 7 Rolls Buildings,, Fetter Lane, London,Date 10 July 2026
EC4A 1NL
Before
THE HONOURABLE MR JUSTICE THOMPSELL
Between
CHUN HING TSEAppellantTULSESENSE LIMITEDRespondentMr Samuel Davis instructed by Curwens LLP for AppellantMr Tim Hammond instructed by Longmores Solicitors LLP for RespondentHearing Hearing date: 11 June 2026
JUDGMENT
[1]INTRODUCTION This judgment arises out of what is perhaps not the saddest of the stories to emerge from the Covid pandemic, but nevertheless a very sad and disturbing matter for the Appellant, Mr Hing Tse.[2]The Appellant, in his first witness statement explained his predicament as follows:
“I appear, through circumstances and opportunism, to have lost my primary residence and home due to alleged arrears of a few hundred pounds (that I always sought to pay, was willing to pay and was able to pay).”
[3]The Appellant here is referring to the forfeiture of his long lease of his property at 114 Parrots Field, Hertfordshire, EN11 0QU (the “Property”). It is common ground that the Property was forfeited to the Respondent, Tulsesense Limited, in the absence of the Appellant. This arose through the order (the “Beamish Order”) given by District Judge Beamish (“Judge Beamish”) in the County Court at Hertford on 19 June 2019.[4]That order brought to an end the Appellant’s long lease of that property which he had acquired at a premium. This all occurred unbeknown to the Appellant while he was detained in lockdown in Hong Kong.[5]In a hearing before HHJ Murch (“Judge Murch”) sitting in the County Court in Luton, the Appellant was seeking either for the Beamish Order to be set aside or for permission to be given for a late appeal of that order.[6]Judge Murch refused to give the Appellant any of the relief sought. For reasons given by Judge Murch in his judgment (which I will discuss further below), by his order dated 21 January 2025 (the “Murch Order”) Judge Murch: i) dismissed the Appellant’s application to extend time to file an appellant’s notice under CPR 52.15 in relation to the Beamish Order; ii) dismissed the Appellant’s application to set aside the Beamish Order under CPR 39.3 and an informal application to set aside a previous decision under CPR 3.1(2)(p); and iii) ordered the Appellant to pay Respondent’s costs in the sum of £8,702.33 by 30 January 2025.[7]The Appellant, is now looking to appeal the Murch Order.[8]Permission to appeal was given by my order of 17 October 2025.[2]The Murch Judgment[9]Judge Murch handed down an ex tempore judgment on 16 January 2025 (the “Murch Judgment”). It is useful to summarise the main points within his reasoning.[10]First he noted that he was faced with an application to set aside, or to give permission for a late appeal of, an order made more than five years earlier, and in circumstances where the Respondent, in reliance on the Beamish Order had spent money on the Property, and had disposed of a long leasehold interest in it to a third party.[11]Secondly, he noted the circumstances: i) The Appellant had been trapped in Hong Kong throughout 2020, 2021 and 2022, and had been paying service charges by cheque for the Property during that period. ii) These payments were made to the managing agents, who acted for the tenant-owned management company that was separately named in the tripartite lease. iii) In October 2022 one of his cheques paid for the service charges was returned and he was informed that the Respondent had forfeited the lease for non-payment. iv) It was only on his return to England in October 2023 that the Appellant took steps to try and work out what had happened and instructed solicitors.[12]Thirdly he noted that the application to set aside the Beamish Order was primarily made under CPR 39.3(5) which provides that: “Where an application is made by a party who failed to attend the trial, the court may grant the application only if 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”.[13]He noted, following the decision of the Court of Appeal in Bank of Scotland v Pereira[2011] EWCA Civ 241 that all three of the conditions listed in CPR 39.3(5) must be satisfied before that provision can be invoked to enable the court to set aside an order - otherwise the application to set aside must be refused.[14]He noted that if CPR 39.3(5) did not apply, because the hearing before Judge Beamish was not a trial, set aside might still be possible under CPR 3.1(2)(p). This empowers the court to: “Take any other step or make any other order for the purpose of managing the case and furthering the overriding objective”.[15]He referred to the commentary in the White Book where the authors say: “Even though the Court does not have the power to set aside a possession order made in the defendant’s absence under 39.3(3), CPR Rule 3.1(2)(m) [which Judge Murch noted was now a reference to CPR rule 3.1(2)(p)] is happily wide enough to give the Court power to set aside a possession order in its discretion if it considers that the interests of justice demand it”.[16]He noted that there was also an application for permission to appeal outside the 21-day time limit under CPR 52.12, and considered the observations made by Moore-Bick LJ in R (on the application of Hysaj and others) v Secretary of State for the Home Department[2015] 1 WLR 2472 (“Hysaj”); Mitchell v News Group Newspapers Ltd[2013] EWCA Civ 1537, [2014] 1 WLR 795 and Denton v T.H. White Ltd[2014] EWCA Civ 906 (“Denton”).[17]He expressed doubts whether the proceedings before were a trial for the purposes of engaging CPR 39.3(5), but nevertheless approached the question of setting aside on the basis of that test and on the possibly wider test applying under CPR 3.1(2)(p)). In both cases, and also when considering whether to allow a late appeal I think it is fair to say that Judge Murch had in mind both: i) the considerable windfall for the Respondent and the corollary of that – a substantial loss for the Appellant over a trivial amount of money, being very small arrears of ground rent; but ii) conversely the very substantial delay in these proceedings being brought and the changes in circumstances arising during that period.[18]In relation to the point of delay, he considered (at [36]-[39]) the question of the date from which delay should be considered to run. Whilst the evidence, he considered, was a little uncertain, he took it that the Appellant became aware of the forfeiture in October 2022, but may not have received the actual possession order until early March 2024. Judge Murch conceded that there was support within the wording of CPR 39.3(5)(a) for the Appellant’s contention that time begins to run only when he received a copy of the order. He noted that this that paragraph requires the person looking to set aside an order to have acted promptly “when he found out the Court had exercised its power to make an order against him”.[19]However, he considered that it was artificial to view those words:
“through the prism of when he actually, subjectively, became aware of the date of the order being made and the order being made against him”
. He considered it more relevant that the Appellant was aware of a problem in October 2022 and apparently took no steps at all to find out what had happened to the lease until October 2023 when he returned to England.[20]In relation to the question whether there was a good reason why the Appellant had not attended the possession hearing, he considered it highly relevant that the Appellant had not made any arrangements to ensure that the post delivered to his property was dealt with for what turned out to be a considerable absence.[21]Turning to the question of whether there had been a reasonable prospect of success at the trial, he noted the difficulty in determining this when the claim form and the documents before Judge Beamish were no longer available (which he saw as being related to the delay point), but went on to consider what he thought were a number of “speculative” grounds of attack.[22]These included first, whether the service had been proper. Here Judge Murch again considered it relevant that the Appellant had taken no steps for his post to be dealt with and had not put his landlord on notice that he was no longer in the United Kingdom.[23]Secondly, he considered briefly an argument based on waiver of forfeiture, based on an email from the Respondent’s solicitors that a payment of rent of £4 had been received on 28 December 2018 and applied to the ground rent demand. He did not consider that this argument was sufficiently established for the court to conclude that it had a real possibility of success as more needed to be known about the circumstances of the payment, when it had been made and how it had been credited.[24]Thirdly, he considered that the Appellant might be able to apply for relief against forfeiture by paying the sums that were due. He considered that this was “putting the cart before the horse, because it presupposes that the order has not been set aside” and the prospect of relief was not itself a defence to the claim. Furthermore, he did not think that he could “second-guess” what sums might have been available to the Appellant had he attended court and been able to make payment on the day in question or in good time under the order. There was no evidence on these points, and he considered it was for the Appellant to show that he had a real prospect of success.[25]For all these reasons he considered that the test under CPR 39.3(5) was not made out.[26]He went on to apply the Denton test. Here he considered that not attending to a court order within a period of time which amounts to a number of years was a serious matter. He did not see it as a very good reason as to why it took the Appellant from October 2022 until the date he made the application. In considering all the circumstances of the case, he took account of the fact that the Appellant had lost a valuable asset but on the other hand the Respondent had expended sums on the asset and that third-party rights had been obtained (which he considered were relevant to the Denton test). When these points were all considered he did not consider that relief against sanctions was justified.[27]He considered that the same result arose under CPR 3.1(2)(p). He acknowledged that this might enable a court to set aside the order, but considered it would be surprising if a lesser test should be applied, although he acknowledged that the full rigours of the Denton test might not apply. Nevertheless:
“where there has been no sufficient explanation on the part of the appellant for the delay since October 2022 in coming to court. I think, in that context, it is relevant that the appellant has lost an asset while the respondent has expended money on refurbishing the property and given a third party rights in reliance upon a court order. There is a fine balance there.”
[28]Judge Murch acknowledged a suggestion made in argument that there may still be a claim limited only to financial losses rather than being returned in the property, but considered that this all went into the: “melting pot of the change of position on the part of the respondent, legitimately in the face of a court order which is properly granted and which I’m not setting aside”.[29]On this basis he did not think that a separate or different analysis applied when applying the test under CPR 3.1(2)(p).[30]Turning to the question of the application to file an appellant’s notice out of time, Judge Murch considered the learning from the Hysaj case. Again, he considered that time ran from the point in October 2022 when the Appellant had become aware of a problem, rather than from March 2024 when the Appellant obtained a copy of the order.[31]He went on to consider the specific grounds of appeal before him and dismissed those either on the basis of the arguments I have already outlined or on the basis that they were speculative.[32]On this basis, he dismissed the application to set the judgment aside (either under CPR 39.3 or under the wider test of CPR 3.1(2)(p)) and refused permission for the appeal to be filed out of time.[3]THE TEST FOR THIS APPEAL[33]As Mr Hammond for the Respondent reminds me, the dismissals recorded in the Murch Order each constituted an exercise by Judge Murch of his discretion in respect of a matter of case management. In order for him to have been “wrong” (for the purposes of CPR 52.21(3)(a)) the Appellant will need to establish that the Judge erred in the exercise of that discretion.[34]The notes in the White Book Volume 1 at 52.21.5 summarise the principles applicable to an appellate court’s approach to a first instance court’s discretionary evaluation. The appellate court will only interfere if one or more of the following is identified: i) a misdirection in law; ii) some procedural unfairness or irregularity iii) that the judge took account of irrelevant matters iv) that the judge failed to take account of relevant matters or v) the judge’s decision was “plainly wrong”, i.e. it exceeded the “generous ambit within which reasonable disagreement is possible”.[35]These factors were confirmed in Azam v University Hospital Birmingham NHS Foundation Trust [2020] EWHC 3384 (QB) (“Azam”) at [50]. Azam also at [52] underlines that an appellate court is exercising a “review” power under CPR 52.21(1). Further it is stated there that:
“it is also well-established that the weight to be given to specific factors is a matter for the trial judge and absent some wholly unjustifiable attribution of weight, an appellate court must defer to the trial judge.”
[4]THE GROUNDS OF APPEAL[36]The Appellant has presented the following points as the basis of his appeal. I reproduce these below adding only my own numbering to the points: i) Ground 1: When considering ‘promptness’ for the purposes of(a) the CPR 52.15,(b) the CPR 39.3 or(c) the CPR 3.1(2)(p) applications, time should have been measured from the date the Appellant received the 2019 Order (i.e. in March 2024). The Appellant could not have appealed, challenged or otherwise made application(s) in relation to an order that (a) he did not have and (b) that he did not know existed. Judge Murch was wrong to take account of a wider period of time from October 2022. ii) Ground 2: The fact the Appellant was travelling overseas was a good reason for him not being aware of the 2019 proceedings. Judge Murch was wrong to (a) give any weight to the apparent failure by the Appellant to monitor his post in his absence and/or (b) to find that he was required to explain what he was doing in Hong Kong. This applies in relation to all the applications. iii) Ground 3: The Respondent disclosed in correspondence that it accepted a payment of £4 on 28 December 2018 and applied it to the rent account. This was a potential complete defence to the forfeiture and possession claims in 2019. The Respondent had disclosed no further information about this payment. Judge Murch was wrong to dismiss this potential defence on the basis there is a lack of evidence in a case where the Respondent was being obstructive. This applies in relation to all the applications. iv) Ground 4: In relation to the CPR 52.15 application, Judge Murch should have given greater weight to the possibility that the Appellant may be able to amend the Grounds of Appeal if further information became available from the Respondent. The learned Judge was wrong not to do so. v) Ground 5: In relation to all the applications Judge Murch was wrong not to give greater weight to the obstructive conduct of the Respondent. Where a respondent has destroyed the documents that an applicant requires to properly marshal their case they have a duty to promptly disclose what information they have. Where a respondent is deliberately obstructive that should be weighed in the balance in relation to all the applications.[37]Rather than starting by approaching these grounds of appeal individually, I consider that the appeal is best dealt with by considering what it is that the Appellant would needed to have established before Judge Murch if the Appellant was to obtain the order that he sought; and the merits of Appellant’s case on these points, as reflected in these grounds of appeal.[5]THE CASE THAT THE APPELLANT NEEDED TO ESTABLISH[38]As we have seen, Judge Murch was considering an application to bring an appeal of the Beamish Order out of time or, in the alternative, an application to set aside the Beamish Order pursuant to CPR 39.3, or if the court takes the view that this was not a trial for the purposes of that rule, to set the judgment aside under CPR 3.1(2)(p).[39]Judge Murch correctly identified that the possession hearing before Judge Beamish was not a “trial” for the purposes of CPR 39.3 but potentially gave rise to similar relief under CPR 3.1(2)(p) (see the notes in the White Book at 39.3.1).[40]Mr Davis, acting for the Appellant, put forward an argument that we just do not know whether this was a trial as we do not have the court papers, but I consider this argument to be fanciful. There is no reason whatsoever to believe that this was not the usual type of possession hearing, and I dismiss this argument.[41]I consider that Judge Murch was correct in his approach of considering the three-stage test set out in CPR 39.3(5) (that the appellant acted promptly when he found out that the court had made an order against him; had a good reason for not attending the trial; and had a reasonable prospect of success at the trial) and applying this test also to his consideration of relief under CPR 3.1(2)(p). Whilst we have seen (at [‎14] above) that CPR 3.1(2)(p) is drafted in very wide terms, how it is applied must depend on the context, and where there is a specific rule, such as CPR 39.3(5), that deals with the point or is wholly analogous, it is appropriate that the court follows at least broadly the approach mandated by that specific rule.[42]It is less clear whether it is correct that the Denton test should have been applied in its strict form to the application under CPR 3.1(2)(p) and I will consider this further below.[43]In relation to the question of permission to appeal out of time, Judge Murch correctly referred to Hysaj and in particular the passage where Moore-Bick LJ summarises the test to be applied under CPR 52.12 as follows: “The most relevant parts of that guidance to be found in those and certain other paragraphs of the judgment can be summarised for present purposes as follows:(i) if the failure to comply with the relevant rule, practice direction or court order can properly be regarded as trivial, the court will usually grant relief provided that an application is made promptly;(ii) if the failure is not trivial, the burden is on the defaulting party to persuade the court to grant relief;(iii) the court will want to consider why the default occurred. If there is a good reason for it, the court will be likely to decide that relief should be granted, but merely overlooking the deadline is unlikely to constitute a good reason;(iv) it is necessary to consider all the circumstances of the case before reaching a decision, but particular weight is to be given to the factors specifically mentioned in rule 3.9”.[44]The factors mentioned in CPR 3.9 referred to include the need for litigation to be conducted efficiently at proportionate cost and to enforce compliance with rules, practice directions and orders.[6]THE APPELLANT’S CASE ON THE SET-ASIDE CLAIM (i) Acting promptly[45]I will consider first then the Appellant’s case in relation to the first element of the three-stage test: whether the Appellant acted promptly when he found out that the court had made an order against him.[46]It is clear that the 12 month delay between the Appellant being aware of some form of forfeiture of the lease, weighed very heavily with Judge Murch, particularly as this may have been seen as adding to the difficulties of finding out what exactly had gone on (since the court had largely deleted the court record, and the Respondent had changed solicitors). From his comments at [62] in the Murch Judgment it appears that he assumed also that this may have contributed to the change in circumstances (the Respondent spending money on the property and reletting it on a new long lease).[47]The Appellant argues that this approach was incorrect for reasons that may be summarised as follows: i) Reason 1: as per Ground 1, the Appellant could not have appealed, challenged or otherwise made any application in relation to the Beamish Order until it had a copy of the order, and before then the Appellant did not know that it existed - the delay should therefore be measured from the point at which the Appellant obtained the order (in March 2024) and the Appellant did act promptly from that point; ii) Reason 2: whilst the Appellant had been informed that the Respondent had forfeited the lease in October 2022, the Appellant (who says that he did not have a detailed understanding of leasehold law) did not understand that this meant that the Respondent had obtained an order of the court; iii) Reason 3: the delay occasioned by the Appellant between October 2022 and October 2023 (the point at which the Appellant did diligently seek to find out what had happened) was not the largest element of the delay. The delay between June 2019 and October 2022 was not the fault of the Appellant and would have been avoided if the Respondent, when it re-entered the property and discovered that the Appellant clearly had not been living there for some time had taken the most basic steps of asking the managing agent whether it had any other address for the Appellant. Furthermore, the delay between October 2023 and March 2024 was contributed to by the lack of cooperation of the Respondent or its lawyers in answering queries about what had happened to the Property and to their actions in destroying the Appellant’s documents (c.f. Ground 5).[48]In relation to Reasons 1 and 2, I consider it is correct, if the court is applying CPR 39.3(5), that the formal requirement in CPR 39.3(5)(a) is to act promptly “when he found out that the court had exercised its power to… enter judgment”. This must mean the very least that the Appellant had realised that there had been a judgment by the court. I do not consider that it necessarily means that the person seeking relief must have obtained a copy of the judgment before his obligation to act promptly arises. Rather it means that once he is aware of an order having been made he must act promptly to take steps towards obtaining that judgment and once he has it, act promptly in making his application.[49]The Appellant’s case before me was that in October 2022 the Appellant knew about “forfeiture” but did not understand that this was something that had arisen under a court order. As Mr Hammond pointed out, the Appellant’s witness statement is not entirely supportive of this position. The Appellant says (at paragraph 5 in his first witness statement) “I did not even become aware of the forfeiture and possession order until October 2022” This suggests that in October 2022 the Appellant was aware of a possession order (even if he did not have a copy of it), and not merely some nebulous concept of forfeiture not involving a court order.[50]A similar suggestion arises in his original grounds of appeal for the hearing before

Judge Murch which state that the Appellant:

“did not become aware of any potential forfeiture order until October 2022”
[51]These suggestions, however, are said to be countered by other evidence including: i) that at paragraph 10 of his first witness statement, where he explained that he was informed that the Respondent had forfeited the lease, but no explanation was given and he could not work out what had happened as he was not a property lawyer and did not have a detailed understanding of leasehold law; ii) that at paragraph 13 of his original grounds of appeal for the hearing before Judge Murch where it is stated that the Appellant had initially concluded that there were no court proceedings in relation to the alleged forfeiture, and had planned a claim for relief from forfeiture, presumably on that basis; and iii) that on 13 November 2023, his solicitors were still asking whether a court order was obtained (having discovered that a new lease of the property had been granted).[52]Overall the evidence is equivocal on this point. Judge Murch was not convinced by the suggestion that the Appellant might have thought that there had been unlawful entry into his property, and I think it was his conclusion that the Appellant, when he was told that his lease had been forfeited would have realised, or at least must have reasonably had the suspicion that this would have come about by means of a court order. I cannot say that he was wrong in reaching that conclusion.[53]However, when we turn to Reason 3, I consider that there is much merit in this point. By the time the Appellant had any awareness whatsoever of the forfeiture of the lease (in October 2022) the possession order had already been in place for almost two and a half years. In the period before the Appellant knew anything about this, the time for the Appellant to obtain relief from forfeiture under the terms of the possession order had run out; a warrant for possession had been issued; the Respondent had obtained possession of the Property (in August 2019); had cleared and renovated the Property and had granted a new long lease of the flat to a third party. The consequences of delay, therefore, had largely come about at a stage where the Appellant had no knowledge at all of what was happening.[54]Furthermore, the Respondent had proceeded to renovate the Property and grant a new lease in the knowledge that the Appellant clearly had not been living there for years and had not been receiving post, including the various demands for rent and notices of proceedings that it had sent to the Property, and instead of making enquiries about where the Appellant might be residing, had destroyed his documentation.[55]Mr Davis suggests that the Respondent was under a duty to inform the court that it appeared that the Appellant had not been receiving notices and orders as part of the proceedings, although he was not able to provide me with any authority on this point beyond a reference to CPR 1.3 which sets out the requirement for parties to litigation to help the court to further the overriding objective of enabling the court to deal with cases justly and at proportionate cost. I cannot say whether any such duty exists. However I can say that I consider the points made in the previous paragraph to be highly relevant to the question of delay, and as far as I can see these points were not at all taken into account by Judge Murch.[56]As I have stated, the relief sought under CPR 3.1(2)(p) should be applied at least broadly in accordance with the three-stage test under CPR 39.3(5). However the strict application of CPR 39.3(5) can, and should, be departed from if necessary to further the overriding objective.[57]In the current case it is highly relevant that whilst there have been a very substantial delay by the Appellant in seeking relief, the greater part of that delay was not caused by the Appellant and was contributed to by the acts or omissions of the Respondent. These considerations were relevant to the application under CPR 3.1(2)(p) and were not taken into account by Judge Murch. This, I consider, does render his consideration of the delay point to be unsafe.[58]These points are also relevant to Judge Murch’s application of the Denton test. In my view this test does not necessarily need to be strictly followed when one is making the broader consideration under CPR 3.1(2)(p), but even if it is, when one gets to the second and third part of the test, (why the breach occurred and considering all the circumstances of the case), these points are highly relevant. The fact that Judge Murch only considered the relevance of the delay between October 2022 and October 2023, and not the relevance of the considerable delay before then or the extent to which the Respondent may have contributed to the causes for delay also renders his consideration of the delay point unsafe. (ii) Good reason for non-attendance[59]Judge Murch was not satisfied that the Appellant had good reasons for failing to attend the hearing before Judge Beamish. He accepted that the Covid restrictions in Hong Kong were more long lasting than they were in the United Kingdom; and that it might well be that he could not come back to this country until October 2023. I think he also accepted that the Appellant had no knowledge of the proceedings when they were taking place. However, it is clear that Judge Murch considered the fact that the Appellant had made no arrangements for dealing with his post, and did not tell the Respondent where he could be reached, meant, essentially his lack of awareness of the proceedings was his own fault and could not be relied upon as a good reason for failing to attend.[60]I consider that Judge Murch was wrong in considering these points in relation to the question of a good reason for failing to attend. The reason the Appellant failed to attend was that he was not aware of the hearing. That is a good reason. I do not consider that it was legitimate for Judge Murch to go behind that reason and ask why it was that he was not aware of the hearing, and to determine the matter by way of a counterfactual as to what might have happened if he had made arrangements to redirect his post. To the extent that it was legitimate to go behind that reason, then Judge Murch should also have considered the question as to whether it was reasonable for the Respondent to continue serving demands for payment and notices at the Property and obtaining no response, even in relation to the notice of a possession hearing without making any enquiries at all as to whether there might be a reason why no response was forthcoming.[61]In relation to this last point, I was referred to City & Country Properties Ltd v Kamali[2007] 1 WLR 1219. At [25], Neuberger LJ considered the case of a foreign resident who lived in the UK for six months and then returned to his home country. He considered that it would be unsafe to make service at that person’s “last known residence” unless reasonable investigations have been made. Since that case, amendments have been made to the Civil Practice Rules. CPR 6.9(3) applies where a claimant has a reason to believe that the address of the defendant is an address where the defendant no longer resides and in such circumstances the claimant must take reasonable steps to ascertain the defendant’s current address.[62]It is argued on behalf of the Appellant that similar circumstances applied here – having received no answer to multiple demands and notices at some point the Respondent must have had reason to believe that this address was not the current residence of the Appellant and it should be regarded as the Respondent’s failure, and not that of the Appellant which led to the Appellant not being aware of the proceedings. This is a relevant point that was not considered by Judge Murch and in my view renders his decision in relation to reasons for non-attendance to be unsafe.[63]In response to this point, Mr Hammond argued that it was the common experience of property investor companies holding freeholds that post was not responded to. There was no evidence for this point and I do not accept that even if it is correct that it means that a landlord who is considering making a repossession claim can safely assume that it can proceed on the assumption that he has no reasonable cause to suspect that this is not the current residence of the tenant. (iii) Reasonable prospect of success[64]In relation to the question of reasonable prospects of success, I have already explained how Judge Murch dismissed the prospect that the admitted receipt of £4 of rent in December 2019 provided grounds with a reasonable prospect of success. I consider that he was wrong to do so.[65]It is well established law that acceptance of rent by a landlord operates as an irrevocable election not to forfeit the lease on the grounds of non-payment of rent (up to that date of acceptance). See Megarry & Wade The Law of Real Property (Tenth Edition) at [17-022]. Mr Davis referred me to Expert Clothing v Hillgate House[1986] Ch 340 where Slade LJ (on page 360) said:
“…the legal effect of an act relied on as constituting a waiver of a right of forfeiture must be considered objectively, without regard to the motive or intention of the landlord or the actual understanding or belief of the tenant. The doctrine of waiver is thus quite capable in some instances of operating harshly, most particularly where there has been an acceptance of rent by the landlord.”
[66]Under s 167 of the Commonhold and Leasehold Reform Act 2002 a landlord under a long lease of the dwelling may not exercise a right of forfeiture for failure to pay rent unless the unpaid amount: i) exceeds the prescribed sum or ii) consists of or includes an amount which has been payable for more than the prescribed period.[67]The prescribed amount and the prescribed period have been fixed by the Rights of Re-entry and Forfeiture (Prescribed Sum and Period) (England) Regulations 2004 at £350 and three years respectively.[68]It is common cause that the outstanding rent that was relied upon for the purposes of the Respondent’s forfeiture claim was below £350, and therefore the forfeiture could only proceed on the basis of the rent claimed outstanding for more than the prescribed period.[69]The effect of a waiver through the acceptance of even the small sum of £4 of rent in December 2018 would be that no forfeiture claim could be based on any arrears of rent outstanding prior to that time. It would appear therefore that the Appellant had a very good argument that the possession order should not have been made on this basis.

Judge Murch appears to have dismissed this point on the basis that:

“There was no evidence before me of the appellant having made payments of ground rent.”
However, there was before him evidence in the form of a letter from the Respondent’s solicitors accepting that there had been a payment of £4 of ground rent, and there was no evidence before him against that proposition. In the circumstances, and particularly in the circumstances that the Respondent had destroyed all of the Appellant’s records, and accordingly the only records of payments of ground rent were those held by the Respondent, I consider that Judge Murch’s finding on this point, that the Appellant had failed to meet the test under CPR 39.3(5) in relation to the question of whether there was a reasonable prospect of success at trial, was unsafe.[71]I have already mentioned the question of whether the service on the Appellant and his home was valid, in circumstances where the Respondent may have had reason to believe that he was not living there. Judge Murch dismissed this as speculative, but given the provisions of CPR 6.9(3) (which it appears that he did not consider) I do not think that he can be right in dismissing this possibility as giving rise to a reasonable prospect of success. Accordingly, I consider that his conclusion as to whether there was a reasonable prospect of success at trial on this point also was unsafe. (iv) Overall conclusion in relation to the set-aside claim[72]It will be apparent from the above that I have found that Judge Murch’s conclusions on each limb of the test to be shown to allow a set-aside to be unsafe.[73]If I stand back from these individual tests and just ask the question posed by CPR 3.1(2)(p) - would allowing set-aside of this order further the overriding objective, I think the answer must be yes. The possession order has allowed the Respondent to obtain a considerable windfall at the expense of the Appellant that on the face of it appears to be unjust in circumstances where the Appellant was unable to appear at the possession hearing.[74]Judge Murch was aware of this, but considered that the Appellant was to a very large extent the author of his own misfortunes as a result of his failure to put in place arrangements for his post and his delay in finding out what had happened when he first became aware of a possible possession. Given the interest of the court in providing finality and the other elements of the overriding objective, and given the fact that it was now too late to restore the property to the Appellant as a long lease had been sold to someone else, I can well understand why Judge Murch reached this conclusion.[75]However, as I have sought to explain, in reaching this conclusion Judge Murch failed to consider some relevant considerations and gave undue weight to others, and when all the factors I have mentioned are considered, his judgment in relation to the set-aside question is rendered unsafe.[7]THE APPELLANT’S CASE ON PERMISSION FOR LATE APPEAL[76]The Appellant’s case as to why he should have been allowed an extension of time to file an appellant’s notice under CPR 52.15 is based again on relevant circumstances for the delay.[77]Judge Murch correctly set out the considerations as summarised in Hysaj (as reproduced at [‎43] above).[78]Judge Murch had correctly concluded that the delay in this case was far from trivial. Thus the key elements of those considerations as applied in this case were: i) the reason why the default occurred; and ii) all the circumstances of the case. As Judge Murch correctly noted the burden of establishing that the relief should be given was on the Appellant.[79]Judge Murch also noted (at [28]) that in the same case Moore-Bick LJ considered that the merits of the substantive appeal should not be considered in relation to the question of extension of time except in cases where the court can see without much investigation the grounds of appeal are either very strong or very weak when it comes to balancing the factors when considering all the circumstances of the case.[80]Judge Murch was correct when he concluded (at [64]) that similar tests and considerations applied in relation to the application for extension of time as applied in relation to the question of set-aside.[81]As regards the reasons for the delay, Judge Murch applied the same reasoning as he had in relation to the question of delay in relation to the test for set-aside. He did not consider the question could be seen “purely through the prism of when it was that the order came to the attention of the appellant. One needs to be clear, in one’s mind, why it was that the order came to the attention of the appellant on the date that he did and not sooner”.[82]He referred back to his conclusions on this point – essentially that the delay arose because of the failure of the Appellant to make arrangements so that he would receive his post and to make enquiries as to what was happening when he learned of the fact that his property had been possessed.[83]I have already commented that when making his conclusions in relation to the test for set-aside Judge Murch ignored pertinent points including: i) the question whether the Respondent was to blame in continuing to serve demands for payment and notices at the property and obtaining no response, even in relation to the notice of a possession hearing without making any enquiries at all as to whether there might be a reason why no response was forthcoming; ii) that the majority of the delay in pursuing an appeal came not from the Appellant’s inaction between October 2022 and October 2023; and iii) the lack of cooperation from the Respondent in explaining what was going on.[84]I have already concluded that Judge Murch’s failure to consider these factors made Judge Murch’s decision unsafe in relation to delay as a consideration relevant to set-aside. I must conclude that for the same reasons his decision is unsafe in relation to delay as a consideration relevant to extension of time for appeal.[7]CONCLUSION AND NEXT STEPS[85]I have every sympathy for the unusual position that Judge Murch found himself in. As he noted at the beginning of the Murch Judgment:
“This is an unusual state of affairs. I am faced with an application to set aside an order which was made on 5 June 2019, this was a number of years ago.”
[86]In such circumstances, and where it was now too late to restore the Property to the Appellant as a long lease had been sold to someone else, the interests of the court in providing finality will have weighed heavily with Judge Murch.[87]The Appellant did not help himself by failing to provide a better explanation of what his understanding of the affairs was in October 2022 and why he had not investigated further prior to October 2023. Also the Appellant did not help himself by being clearer as to the final form of relief that was being sought. Judge Murch would no doubt have been concerned that setting aside the judgment of Judge Beamish might have created a question about whether the grant of a new long lease to a third party might have been put into doubt, even though it appears that there was some discussion that the Appellant might be content with a financial remedy.[88]Nevertheless, I have found that Judge Murch failed to consider some relevant considerations and this caused him to give undue weight to others, and when all the factors I have mentioned are considered, his decisions in relation to both the set-aside question and the application for an extension of time to file an appellant’s notice under CPR 52.15 are rendered unsafe.[89]Reaching this conclusion means that I must accept that the Murch Order cannot stand. However this does not of itself, affect the Beamish Order.[90]Whilst I can see an argument based on efficient use of the court’s time why I should go on to determine the questions that were before Judge Murch (set-aside of the Beamish Order and/or the application for an extension of time to file an appellant’s notice under CPR 52.15 against the Beamish Order), I do not think it is appropriate that I determine this at this juncture without hearing more from the parties. In particular I will need to hear from the Appellant whether he now seeks to set-aside the Beamish Order for to pursue an appeal of it, and in either case more details of the substantive relief that is now sought and the basis for such relief.[91]I will accordingly give directions for a Consequentials Hearing at which the consequences of my findings within this judgment can be determined.