Baqir Al-Chaalan & Anor v Abri Group Ltd

Factual and Procedural Background

The Appellant was the assured tenant of a flat (the "Property") under a tenancy agreement dated 29 March 2004 with the Respondent (Company A, formerly known by another name at the time of the events). The Appellant's household included a daughter and, from 2019, a relative who was described as a nephew and who also lived at the Property (the "Second Respondent"). In June 2020 the Appellant travelled to Iraq and was reported by correspondence to have died; in February 2022 the Appellant's daughter informed Company A that the Appellant was alive but ill in Iraq. Company A inspected the Property in early 2022 and met the Second Respondent, who claimed to be sole occupant.

Company A served a notice to quit in September 2022. Possession proceedings were issued in April 2023 naming the Appellant and his personal representatives; the claim form gave the Property address for service. Company B (solicitors for the Appellant) contacted Company A's solicitors in May 2023 requesting documents but received no substantive response. A possession hearing proceeded in June 2023 in the Appellant's absence and a possession order was made (the "Possession Order"). Multiple applications to set aside or to relist the matter were made by or on behalf of the Appellant and the Second Respondent; the Second Respondent's early applications were dismissed as without merit for lack of standing. An application by Company B to set aside the Possession Order was heard in November 2023 and dismissed by the county court. The Appellant appealed; the appeal was dismissed by Judge Bloom and costs were ordered against the Appellant. The Court of Appeal (panel comprising Judges Newey, Asplin and Baker) heard the appeal and dismissed it in its entirety.

Legal Issues Presented

1. Whether the possession proceedings were validly served at the Property under CPR r 6.8(a) by reference to the address mentioned in the tenancy agreement.
2. Alternatively, whether service was valid under CPR r 6.9, including whether CPR r 6.9(3) was engaged and complied with.
3. Whether the county court erred in its assessment of evidence on a paper application applying the test in CPR r 39.3(5) by analogy (i.e. promptness, good reason for non-attendance, reasonable prospect of success).
4. Whether the Respondent's conduct was sufficiently egregious to justify setting aside the Possession Order despite the usual test.

Arguments of the Parties

Appellant's Arguments (Attorney Timson)

• Clause 1(5)(ii) of the Tenancy Agreement ("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") does not extend to service of a claim form; it relates only to contractual notices such as notices to quit.
• If the parties intended the Property address to be "given for the purpose of being served with proceedings" under CPR r 6.8(a), the agreement would contain express wording to that effect; CPR r 6.11 demonstrates that contractual terms about service of proceedings should be express.
• The alternative reliance on CPR r 6.9 was misplaced because r 6.9(3) was engaged and not complied with.
• The county court made fundamental factual errors when applying the analogous CPR r 39.3(5) test: findings that the Appellant knew of the hearing were contrary to the Appellant's uncontroverted evidence and absence of cross-examination made reliance on such inferences wrong.
• Company A's conduct (allegations of fraud not particularised, failure to engage with Company B, failure to amend pleadings after being told the Appellant was alive, and commencement against the Appellant rather than the person occupying the Property) was egregious and should have justified setting aside the Possession Order.

Respondent's Arguments (Attorney Moate)

• Clause 1(5)(ii) should be construed broadly: "any legal notice, or any other communication arising from the Agreement" naturally includes proceedings seeking possession arising from the landlord-tenant relationship and thus satisfies CPR r 6.8(a).
• Even if clause 1(5)(ii) did not suffice for CPR r 6.8(a), service at the Property was permissible under CPR r 6.9 as it was the Appellant's last-known or usual residence on the material information.
• The county court was entitled to draw inferences from the written evidence and the surrounding facts (including that the Second Respondent knew of the hearing and had instructed the same solicitors) and to apply the Pereira principles on paper applications without oral evidence or cross-examination.
• The Respondent's conduct was not egregious; while some failures to communicate with Company B were "regrettable," they did not justify setting aside the Possession Order.

Table of Precedents Cited

Court's Reasoning and Analysis

The court addressed, first, the construction of clause 1(5)(ii) of the tenancy agreement in light of CPR r6.8(a). Applying ordinary principles of contractual interpretation, the court concluded that the phrase "Any legal notice, or any other communication arising from the Agreement" is sufficiently wide to encompass service of possession proceedings arising from the landlord‑tenant relationship; the contractual provision is a mirror of clause 1(5)(i) (which references the landlord's section 48 address) and the consistent wording indicates the parties intended notices to include proceedings. The court rejected the submission that CPR r6.11 or CPR r6.8(b) required express contractual wording for service of proceedings, finding those provisions permissive and not determinative of the clause's meaning.

On alternative reliance on CPR r6.9, the court declined to determine the point in detail but expressed doubts about aspects of the lower courts' treatment of r6.9(2) and (3).

Turning to the application to set aside under the analogous CPR r39.3(5) test, the court applied Pereira: that oral evidence and cross‑examination are only exceptional and that a judge may accept, reject or proceed on the assumption of the applicant's written evidence. The lower tribunal's inference—that the Appellant had notice of the hearing because the Second Respondent had notice, had instructed the same solicitors, had opened post at the Property, and the Appellant's statements were silent on knowledge of the hearing—was held to be open on the evidence. The Court of Appeal emphasised appellate restraint in overturning such factual inferences and held that neither the Deputy District Judge nor Judge Bloom erred in principle.

Finally, the court considered whether Company A's conduct amounted to the "unusual and highly compelling" factor that would justify setting aside the order. The court found that (i) the single reference to "fraud" in the particulars (by way of a statutory remedy) did not amount to unpleaded fraud for these purposes, (ii) the failures by Company A to engage with Company B were regrettable but did not overturn the factual findings about notice, and (iii) the other conduct relied upon did not cumulatively amount to egregious conduct warranting the exercise of the discretion to set aside.

Holding and Implications

APPEAL DISMISSED

Holding: The Court of Appeal dismissed the Appellant's appeal in its entirety. It held that the possession proceedings were properly served at the Property under CPR r 6.8(a) by virtue of the tenancy agreement's clause and that the lower courts were entitled to their factual inferences and to apply the CPR r39.3(5) test by analogy without oral evidence. The court rejected the submission that the Respondent's conduct was egregious such that the Possession Order should be set aside.

Implications: The direct effect is that the Possession Order stands and the Appellant's challenge fails; the Court did not identify or lay down any new legal principle beyond the application of established rules on contractual construction, service and the approach to r39.3(5) applications on paper. Costs consequences remained as ordered below.