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Trinity Housing Barrister Summary of Keith v Benka & Anor [2023]

  • Thursday, August 3, 2023
Trinity Housing Barrister Summary of Keith v Benka & Anor [2023]

Trinity Social Housing Law barrister, Henry Percy-Raine has prepared the following summary of the recent Court of Appeal decision of Keith v Benka & Anor [2023] EWCA Civ 821.

The question at the centre of this Appeal was whether the lapse of time in bringing a claim, unaccompanied by a breach of a rule or a Court order, could amount to an abuse of process; and, if so, whether on the facts of this case, it did.

Facts

Mr Benka was the registered proprietor of a large country house that had been converted into six separate flats. The flats were all let on long leases. Ms Keith was the lessee of one of the flats under a 99-year lease granted in 1959.

In 2014, Mr Benka issued proceedings in the County Court against Ms Keith alleging that she was in breach of various covenants in the lease. Some of the alleged breaches took place in 2007, and many concerned behaviour by Ms Keith’s sub-tenants dating back to 2007. A section 146 notice was served in April 2013. Ms Keith’s defence denied the breaches, denied having received a valid section 146 notice, and, in the alternative, claimed relief against forfeiture.

At the time the proceedings were issued, section 168 of the Commonhold and Leasehold Reform Act 2002 restricted a landlord’s ability to serve a section 146 notice. Before such a notice could be served, the tenant either had to admit the breach, or there had to be a finding of breach, either by the Court or the FTT.

The transfer order

In January 2015, Ms Keith applied to strike out the claim on the ground that Mr Benka had not been entitled to serve a section 146 notice because section 168 was not satisfied. The District Judge refused the application to strike out the claim but referred the issue of whether there had been a breach of covenant to the FTT, it was further ordered that the proceedings in the County Court should be stayed pending determination by the FTT but gave liberty to apply (“the 2015 order”).

In both forms of the Practice Direction, the initiative of transfer is placed on the Court; however for reasons that were unexplained the County Court did not transfer the case. Since the FTT did not receive the case, its case management powers were not triggered.

The strike-out application

The case did not progress further until September 2019 when Ms Keith applied to strike out the claim. Two of the grounds were that: (i) Mr Benka was in breach of the 2015 order in failing to refer the case to the FFT, and (ii) Mr Benka had inordinately/ inexcusably delayed in prosecuting his claims.

The District Judge hearing the application struck out the claim, considering both that Mr Benka was in breach of the 2015 order and that he had delayed too long in proceeding with the case.

The first Appeal

Mr Benka successfully appealed the decision to strike out the case. The Circuit Judge noted that the 2015 order did not require the parties to make the application to the FTT which was consistent with the Practice Direction. Having considered the authority on the approach the Court takes to delay, it was held that the District Judge had been wrong to strike out the claim.

The case was thereafter ultimately transferred to the FTT in February 2023.

The Court of Appeal

Lewison LJ noted that the categories of abuse of process are not closed and do not necessarily rely on there having been a breach of a Court order [29]. Further, the power to strike out under CPR 3.4(2)(b) is available even if there has been no such breach [46].

In this case, the question of whether there had been an abuse of process required the Court to consider the length of the delay and the reason for it, objectively considered: Asturion at [50].

Lewison LJ considered that the delay in this case was lengthy and that Mr Benka had options available to him that he could have taken [51]. Nevertheless, the Court felt bound by authority to hold that a lapse of time, without more, does not amount to an abuse of process [53].

On the reason for the delay, Lewison LJ considered it hard to avoid the conclusion that the objective reasons were a combination of the Court’s oversight in not complying with the Practice Direction coupled with the stay. The Court’s part in such delay is a highly relevant factor in deciding whether there has been an abuse of process [54].

Although there was evidence that the delay has caused prejudice to Ms Keith [55-56] and that the claim was considered to be stale [58], ultimately the combination of factors, in particular the Court’s part in the delay, was held to tip the balance against there having been an abuse of process sufficient to justify striking out of the claim [57].

The Appeal was accordingly dismissed.

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