Circuit Court: Grounds of Appeal

District Court Case No. 2EC58592

In the Circuit Court (Civil Division) on appeal from the District Court Between:-

DECLAN HEAVEY Appellant/Defendant

v

BELINDA McKENZIE Respondent

________________________________________________________________________________ DECLAN HEAVEY’S GROUNDS OF APPEAL FOR PERMISSION TO APPEAL TO THE CIRCUIT COURT AGAINST A DECISION BY THE DISTRICT COURT TO MAKE AN ACCELERATED POSSESSION ORDER ________________________________________________________________________________ 1.

The appellant is seeking permission to appeal to the Circuit Court against an order of the District Court granting the respondent accelerated possession of a rental property. On 17 October 2012, Deputy District Judge Peart ordered (1) the appellant and his wife give the respondent possession of Top Floor Studio Flat, 83 Priory Gardens, London, N6 5QU on or before 1 November 2012, and (2) the appellant pay the respondent’s costs assessed at £175.00 on or before 1 November 2012. The appellant holds that Judge Peart’s order was unjust because of a serious procedural irregularity in the lower court proceedings and must be set aside.

2.

The appellant’s belief that his defence, dated 30 August 2012, was not read by Judge Peart when he made his order for accelerated possession is supported by substantial evidence: (1) the order states that the Judge read the written evidence of the respondent but there is no mention of him having read the written evidence of the appellant, and (2) the Judge’s order awarded the respondent her costs assessed at £175.00, but she did not ask for her costs to be paid in her application of 20 August 2012 for an accelerated possession order. No reasonable judge would have granted costs to the respondent unless he was under the impression that no defence had been filed, not to mention that the appellant had declared total means amounting to £347.54.

3.

It is acknowledged that on 11 September 2012 the respondent asked the court to make a possession order and an order of costs (not previously applied for), alleging that the appellant had not filed a defence and the time for doing so had expired. However, the respondent then wrote to the court manager on 14 September requesting that this form be destroyed because she knew the appellant had filed a defence in time.

4.

On 19 April 2012, the respondent withdrew a previous application for the accelerated possession procedure due to the “wrong information” she provided the Court, to quote from an email of hers later that day. The appellant submits that had his defence to the respondent’s latest application for same been read, Judge Peart could not have made an accelerated possession order, because: (1) respondent provided incorrect paperwork, relating to the first Page 1 of 2

and most recent tenancy agreements; (2) respondent made a false statement of truth in her claim form relating to the date of the first tenancy agreement despite having been corrected for making exactly the same false statement in her previous application for the accelerated possession procedure; (3) respondent made a false statement of truth in her claim form relating to the date of the most recent tenancy agreement; (4) respondent let the property using a threemonth tenancy agreement which does not benefit from the accelerated possession procedure.

5.

On 24 October 2012, Her Majesty’s Courts and Tribunals Service (HMCTS), Clerkenwell and Shoreditch County Court refused the appellant permission to submit an application to have Judge Peart’s order varied via the public counter because it was not deemed to be urgent. The appellant was further advised to file his application using the court’s letter box, and that the fee to vary a possession order is £40. He was not told that if in answer to section 5 of his application (“How do you want to have this application dealt with?”) he had ticked “at a hearing”, the correct fee is £80 not £40.

6.

Having been denied a counter service on 24 October 2012, the appellant received on 31 October a letter from HMCTS dated 26 October (franked 29 October), returning his application and postal order for £40 because he had not paid the correct fee of £80 (see paragraph 5 above).

The appellant received this letter on the afternoon of 31 October, leaving him insufficient time to submit an application to have a possession order that was due to take effect the following day varied. Even if the appellant had been granted a counter service on 1 November, he could not have availed of it because, inter alia, he had to sign on for Jobseeker's Allowance that day.

7.

The Court is respectfully urged to grant permission to appeal to the Circuit Court because there is substantial evidence of a serious procedural irregularity in the lower court proceedings (namely, that the lower court judge never read the appellant’s defence) which has resulted in an unjust order that must now be set aside. The appellant further requests that if this permission be refused on the papers, without oral argument, his right to renew his application orally to a Circuit Court judge not be denied to him.

DECLAN HEAVEY 83 PRIORY GARDENS LONDON N6 5QU 5 NOVEMBER 2012

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