Neutral Citation Number: [2011] EWCA Civ 8
Case No: B5/2010/0405
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MAYOR'S AND 
CITY OF LONDON COUNTY COURT
HIS HONOUR JUDGE BIRTLES QC

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20/01/2011
Before :

LADY JUSTICE ARDEN
LORD JUSTICE WILSON
and
LORD JUSTICE TOULSON
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Between :

	LONDON BOROUGH OF HACKNEY	Appellant	
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	PATRICK FINDLAY	Respondent	

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Ms Kerry Bretherton (instructed by Hackney Legal Services) for the Appellant
Mr Sylvester Carrott (instructed by Messrs Hodge, Jones & Allen) for the Respondent

Hearing date : 13 October 2010
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Judgment 

Lady Justice Arden: 
1.	The substantial question for decision on this appeal is whether the matters listed in CPR 39.3(5) (which I set out in paragraph 3 of this judgment) are highly relevant factors to be taken into account when the court is asked by a tenant to exercise its discretion to set aside a possession order made in his absence.  This question arises out of the recent decision of this court in Forcelux Limited v Binnie [2009] EWCA Civ 854.  In that case, this court held that, where the court makes a possession order in the absence of the tenant, following forfeiture of a lease for non-payment of the ground rent, and the tenant subsequently applies to have that order set aside, the court has a wide discretion under CPR 3.1(2)(m) to set aside the possession order “if, in its discretion, it considers that the interests of justice demands it” ([52] per Warren J, giving the judgment of this court).   The court considered that CPR 39.3, that is, the rule dealing with applications to set aside judgments obtained at trial in the absence of a party, did not apply because the hearing at which a possession order is made is not a “trial” for the purposes of the relevant rules.  In the present case, we are concerned not with a landlord and tenant in the private sector but a local authority and secure tenant.  We are told that prior to Forcelux the courts in practice applied CPR 39.3.  This would require among other matters that the tenant should provide a good explanation for failing to attend the hearing.  The more restricted approach in CPR 39.3 is, it is said, important for the efficient management of social housing.  
2.	The relevant provisions of CPR 3 are as follows::
“3.1 The court's general powers of management 
(1) The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.
(2) Except where these Rules provide otherwise, the court may-
…
(m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.
(7) A power of the court under these Rules to make an order includes a power to vary or revoke the order.
…
3.9 Relief from sanctions
(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including-
(a) the interests of the administration of justice;
(b) whether the application for relief has been made promptly;
(c) whether the failure to comply was intentional;
(d) whether there is a good explanation for the failure;
(e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre-action protocol;
(f) whether the failure to comply was caused by the party or his legal representative;
(g) whether the trial date or the likely trial date can still be met if relief is granted;
(h) the effect which the failure to comply had on each party; and
(i) the effect which the granting of relief would have on each party.
(2) An application for relief must be supported by evidence.”
3.	CPR 39.3 provides:
“39.3 Failure to attend the trial 
(1) The court may proceed with a trial in the absence of a party… 
(3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside. 
(4) An application under paragraph (2) or paragraph (3) must be supported by evidence.
(5) Where an application is made under paragraph (2) or (3) 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.”
Background 
4.	In 1999, the appellant (“Hackney”) granted the respondent Mr Findlay a secure tenancy of 79 Banbury House London E9 7ED.
5.	Mr Findlay was in receipt of housing benefit.  When this was stopped for a period, his rent account went into arrears.  Hackney eventually took possession proceedings against him.  It obtained a date for the hearing from the court and wrote to Mr Findlay explaining that there would be a hearing on 7 May 2009 at which Hackney would seek a possession order.  Mr Findlay received this letter but on his evidence he did not receive any formal document from the court summoning him to a hearing and (on his case) he therefore did not consider that he was bound to attend.  
6.	Accordingly Mr Findlay did not appear at the hearing on 7 May 2009 before DJ Manners.  We now have an official transcript of this hearing.  Although Mr Sylvester Carrott, for Mr Findlay, did not agree to this course, we should in my judgment without question take account of what is said in that transcript.  The hearing was a very short one. Hackney pressed for a possession order on the basis that Mr Findlay had made no effort to pay the rent. Indeed there was evidence that Mr Findlay had been given some seven appointments that he had failed to attend. Hackney accepted that he could return to the court to apply to have the order varied. This was clearly a reference to the court’s statutory powers under s 85(2) of the Housing Act 1985, which provides:
“(2)     On the making of an order for possession of such a dwelling-house on any of those grounds, or at any time before the execution of the order, the court may—
(a)     stay or suspend the execution of the order, or
(b)     postpone the date of possession,
for such period or periods as the court thinks fit.”
7.	The district judge proceeded to make a possession order on that basis.  The district judge also gave judgment against Mr Findlay in the amount of the arrears, then £1,221.58, with a further £13.75 per day until possession was given up.  The district judge noted that the housing benefit was then in payment.  The order recites that Mr Findlay did not appear and states that:
“This order has been made on discretionary grounds”
8.	This was a reference to the fact that by virtue of section 84 of and schedule 2 to the Housing Act 1985 the court could only make a possession order because of the rent arrears if it considered that it was reasonable to make such an order.
9.	On 11 June 2009 Mr Findlay received a letter from Hackney saying that no rent was being received and Mr Findlay then made contact with the Job Centre and sought to resolve the problems with the payment of his benefit.  Mr Findlay states in his evidence that even though he had several meetings in this period with the housing officers of Hackney he was not told that a possession order had been made.  Mr Findlay says that he was not told that he would have to apply to have the possession order suspended. Nor was he referred to the officer responsible for providing assistance in connection with the resolution of housing benefit issues.  Mr Findlay states that this may have been a breach of the Rent Arrears Pre-Action Protocol.  The officer in question may have been an officer of the Housing Needs section of Hackney based at Christopher Addison House.   Mr Findlay was informed of the existence of the Housing Needs section in the letter which Hackney wrote informing him of the hearing on 7 May 2009.
10.	Hackney’s Housing Manager responsible for Mr Findley’s property, Mr Olufemi Alabi, on the other hand contends in his evidence that on 11 June 2009 he had told Mr Findlay to obtain legal advice, and a contemporaneous file note corroborates this. Mr Alabi also states that he personally delivered to Mr Findlay’s flat on 23 June 2009 a letter informing him that he would be evicted on 6 July 2009.
11.	On 6 July 2009, the bailiff arrived at Mr Findlay’s home and Mr Findlay was evicted.  This was a watershed event since the powers of the court under s 85(2) came to an end when he was evicted.  It is, however, common ground that the execution must be set aside if the judgment on which it is based is set aside:  see Governors of Peabody Donation Fund v Hay (1987) 19 H.L.R. 145 (and see also sc 47.1.3 in schedule 1 to the CPR).  The execution could also be set aside if the warrant had been obtained by fraud (which is not suggested) or if there had been an abuse of process or oppression in its execution (see the decision of this court in Cheltenham and Gloucester Building Society v Obi (1994) 28 HLR 22).  Mr Carrott submits that the exercise of powers under s 85(2) can only take place before execution.  That is clearly what s 85(2) provides, but, if the possession order on which execution proceeded is set aside, the execution must in my judgment also be set aside, and so there is a further opportunity in which the court can exercise its s 85(2) powers in an appropriate case.  
12.	At the time of his eviction, Hackney referred Mr Findlay to emergency accommodation at Christopher Addison House and to the officer there who was responsible for providing assistance in connection with the resolution of housing benefit issues.  On 13 July 2009, Mr Findlay issued an application for re-entry and on 21 July 2009 his solicitors added an application to set aside or vary the possession order. 
13.	DJ Armon-Jones heard Mr Findlay’s application on 21 July 2009. There is no official transcript of his judgment but he provided a statement in answer to a question from HHJ Birtles QC (who subsequently heard an appeal from his order) as to whether he had applied CPR 3.1(7) or CPR 39.3 in making his order.  This order shows that DJ Armon-Jones heard the application to set aside the possession order first, on the basis that he would only deal with the application for an order for re-entry if that failed.  DJ Armon-Jones held that the application to set aside the possession order succeeded on the basis that DJ Manners had not been told that by the time of the hearing on 7 May 2009 housing benefit had been re-instated and on the further ground that DJ Manners had wrongly proceeded on the basis that the court’s power was restricted to making a possession order or dismissing the claim.  Accordingly the matter had not been dealt with justly and CPR 3.1(7) was invoked. This enabled the court to set aside the possession order.  DJ Armon-Jones also made an order that Mr Findlay should be at liberty to re-enter the property.  Hackney’s application for a possession order was adjourned to a further hearing.  According to an agreed note of the hearing prepared by counsel for Mr Findlay and Hackney’s solicitor, the district judge gave an indication that he would be unlikely to make an outright possession order at that hearing and would be more likely to adjourn the matter generally or to make a suspended order for possession.
14.	The transcript of the hearing before DJ Manners was not available when DJ Armon-Jones heard the matter and it is now clear that DJ Armon-Jones was wrong to say that DJ Manners had not been told that Mr Findlay’s housing benefit had been reinstated.  She was well aware of that and of the fact that he could apply to the court under s 85(2) before the possession order was executed.  Accordingly the decision of DJ Armon-Jones cannot stand.
15.	Hackney appealed to the Circuit Judge from the decision of DJ Armon-Jones.  By this time, the decision of this court in Forcelux was available.  The appeal was heard, and was dismissed, on 3 February 2010 by HHJ Birtles QC, sitting in the Mayor’s and City of London County Court.   The judge accepted the evidence of Mr Alabi that he did not misstate the amount of the rent at the hearing before DJ Manners.  He went on, however, to reject the various grounds of appeal raised by Hackney to the making of an order setting the possession order aside.  He held that the possession order should be set aside and further that DJ Armon-Jones was right to permit Mr Findlay to re-enter the property.  
16.	In the course of his judgment, HHJ Birtles held that Forcelux did not mean that the court had to apply the requirements of CPR 39.3 to the exercise of its discretion under CPR 3.9.   In his judgment it was a matter for the discretion of the court whether to apply the requirements of CPR 39.3 to an application under CPR 3.9 (judgment, para 25). He further held that there was no principle that “the power to set aside orders should be exercised far more cautiously in cases where the warrant has been executed, rather than before that state of affairs has been reached” (judgment, para 29).    It followed that the district judge was not required to take into account whether Mr Findlay had shown that he had acted promptly (judgment, para 31) or that he had had a good explanation for not attending the hearing (judgment, para 36) or that he had a reasonable prospect of success at trial (judgment, para 38).  Finally (although this point is not relevant to this appeal) the judge did not accept that compliance with the Rent Arrears Pre-Action Protocol assisted Hackney on the appeal. The key points for the purposes of this appeal are whether the judge was correct to hold that the factors in CPR 39.3 could be left out of account and whether it was relevant that the warrant for possession had been executed.
17.	HHJ Birtles QC remitted the matter for a further hearing to the Clerkenwell and Shoreditch County Court.  That hearing has not taken place because of this appeal.  Prior to the hearing before HHJ Birtles QC, Hackney then applied to stay the order for re-entry pending appeal but that application was withdrawn and an interim order of that court dated 26 August 2009 (providing for the withdrawal of that application) recites that Mr Findlay had confirmed that he would not rely on the period of occupation pursuant to the order for re-entry to make a fresh application to stay a warrant under s 85 of the Housing Act 1985 if Hackney’s appeal to this court succeeded.  Regrettably, Hackney has been unable to confirm the position about the arrears due to the complexity of the housing benefit history in this case.  However, it is common ground that a backdated payment of £1,252.32 was made into Mr Findlay’s rent account on 25 January 2010.  What Hackney has indicated, however, in a written submission filed after the hearing of this appeal is that at the time it started the possession proceedings it had told Mr Findlay to make an application for a backdated payment of housing benefit and that he had made that application but it had been refused and had not been appealed.
Issue 1: Was Forcelux decided per incuriam and how should be discretion under CPR 3.1 to set aside a possession order made in the absence of a party be exercised? 
18.	Miss Kerry Bretherton, for Hackney, submits that, until the decision of this court in Forcelux, the established approach to applications to set aside possession orders obtained by social landlords was to apply the criteria in CPR 39.3(5). Her primary submission is that Forcelux, in deciding that the discretion was a wide and general one as indicated in paragraph 1 above, was decided per incuriam. Ms Bretherton submits that Forcelux cannot be reconciled with a line of authorities on CPR 3.1(7).  In particular, in Roult v Strategic Health Authority [2010] 1 WLR 487, this court had to consider whether an order approving a settlement of a personal injuries claim for a vulnerable adult could be set aside when it was discovered that a factual assumption on which the order had been made had been incorrect.   This court accepted that there was power to set the order aside under CPR 3.1(7) but held that, even where the original order had been made on the basis of erroneous information or subsequent unforeseen events destroyed the basis on which an order was made, it might not be justifiable for the power to be exercised where the order was a final order and there were no grounds for a proper appeal.   This was because CPR 3.1(7) did not give judges the power to hear appeals from themselves.  Thus Hughes LJ, with whom Smith and Carnwath LJJ, agreed held:  
“15. There is scant authority upon rule 3.1(7) but such as exists is unanimous in holding that it cannot constitute a power in a judge to hear an appeal from himself in respect of a final order. Neuberger J said as much in Customs and Excise Comrs v Anchor Foods (No 2) The Times, 28 September 1999. So did Patten J in Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen [2003] EWHC 1740 (Ch). His general approach was approved by this court, in the context of case management decisions, in Collier v Williams [2006] 1 WLR 1945.  I agree that in its terms the rule is not expressly confined to procedural orders. Like Patten J in the Ager-Hanssen case [2003] EWHC 1740 I would not attempt any exhaustive classification of the circumstances in which it may be proper to invoke it. I am however in no doubt that CPR 3.1(7) cannot bear the weight which Mr Grime's argument seeks to place upon it. If it could, it would come close to permitting any party to ask any judge to review his own decision and, in effect, to hear an appeal from himself, on the basis of some subsequent event. It would certainly permit any party to ask the judge to review his own decision when it is not suggested that he made any error. It may well be that, in the context of essentially case management decisions, the grounds for invoking the rule will generally fall into one or other of the two categories of (i) erroneous information at the time of the original order or (ii) subsequent event destroying the basis on which it was made. The exigencies of case management may well call for a variation in planning from time to time in the light of developments. There may possibly be examples of non-procedural but continuing orders which may call for revocation or variation as they continue—an interlocutory injunction may be one. But it does not follow that wherever one or other of the two assertions mentioned (erroneous information and subsequent event) can be made, then any party can return to the trial judge and ask him to reopen any decision. In particular, it does not follow, I have no doubt, where the judge's order is a final one disposing of the case, whether in whole or in part. And it especially does not apply where the order is founded upon a settlement agreed between the parties after the most detailed and highly skilled advice. The interests of justice, and of litigants generally, require that a final order remains such unless proper grounds for appeal exist. ”
19.	Roult was not cited in Forcelux (or indeed to the judge in this case.)  The facts of Forcelux were unusual, and the court was persuaded in the unusual circumstances of that case, which have no analogue in this case, that it should set aside the possession order.  In that case, the landlord took proceedings to terminate a residential lease for non-payment of a comparatively minor sum by way of ground rent (£893.25 plus costs of £190).  The tenant was served with the proceedings but the proceedings did not come to his notice as he was not living at the property.  The possession order was made at a short hearing pursuant to CPR 55 (which governs possession claims, including claims against secure tenants).  Warren J, with whom Ward and Jacob LJJ agreed, held that the short hearing at which the court makes a possession order is not “a trial” for the purposes of CPR 39.  It is more akin to a hearing at which summary judgment is given (which is not treated as a trial under the CPR) or a “disposal hearing” for the purposes of CPR 26, which is similarly not treated as a trial under the CPR.  Moreover, there was power in CPR 3.1(2)(m) for the court to make any order for the purpose of managing the case or furthering the overriding objective, and CPR 3.1(7) made it clear that this power included power to vary or revoke a previous order.  Accordingly, a possession order that was not made at trial could be set aside under CPR 3.1. It was sufficient that the court should in its discretion consider that the interests of justice demand that the possession order should be set aside.   In considering whether the order should be made Warren J considered that it was “helpful” to go through the checklist in CPR 3.9, although it was not directly applicable.  At the end of the day the factor which convinced the court that the discretion should be exercised in favour of the tenant was that otherwise the tenant would lose what this court described as a valuable asset (without placing any figure on its value) for a failure to pay a modest sum and the landlord would thus receive a windfall.  Warren J put it thus: 
“67. In my judgment, this is a case for the exercise of the discretion in favour of Mr Binnie. Although, as I assume for the purposes of this appeal, that he had not acted promptly, his delay was not so long as to disentitle him from relief. The main factor in favour of granting relief is very strong, namely that Mr Binnie has a compelling case for relief from forfeiture and it is only because possession has been taken pursuant to the possession order that it can be said that he has lost his right to relief. The consequences of refusing to set aside the possession order would be that Mr Binnie would lose not a periodic tenancy at a rack rent, but a long lease at a ground rent. It would be no injustice to Forcelux to be deprived of the windfall that would otherwise accrue to it provided it received what it is entitled to under the Lease and its costs at least up to the end of the set-aside hearing before District Judge Hudson. I call it a windfall because, although Forcelux has a right under the Lease to forfeit it, the law regards that right as security for the observance of the covenants contained in it. Mr Binnie’s default was a failure to pay a comparatively modest sum of money. Forcelux has been offered all that is necessary to compensate it for the breach of covenant which gave rise to the forfeiture.”
20.	It can thus be seen that there was a compelling factor in Forcelux for setting aside the order.  The line of cases on which Miss Bretherton relies does not go to the question whether a hearing at which a possession order is made is or is not a trial for the purposes of CPR 39.3 and thus she does not submit that that part of the decision in Forcelux is not binding on us or was decided per incuriam.  Her concern is whether this court was correct when it did not consider that the factors in CPR 39.3 were highly relevant especially where a warrant for possession was executed.  
21.	These submissions are essentially the points that the judge rejected.  Accordingly Mr Carrott rests his case on this point on Forcelux as interpreted and applied by the judge.  He submits that Forcelux was good law, and that it reinforced an important power under CPR 3.1 to correct injustices (even after warrants had been executed and possession proceedings were therefore outside the scope of variation powers in section 85). This contrasts with Miss Bretherton’s submission that, as a matter of policy, the test for setting aside a possession order should be tougher than the approach adopted in Forcelux as otherwise on her submission local authorities would face substantial difficulties (and a loss of certainty) if tenants could chose not to come to court and could easily obtain the setting aside of a possession order, even after eviction.
22.	The facts of Forcelux are far removed from the present case. The court framed the discretion as a wide and unstructured discretion, but it did not in the circumstances have to go further than that on the facts of that case. For this court to hold that the approach to discretion was per incuriam would require us to conclude that the court in Forcelux was bound by some other binding authority to reach some other conclusion. However, I do not consider that that is so.  The key fact in Forcelux as in this case was that the defendant had not attended the hearing at which the order had been made.  That was not the case in Roult, and the presence of CPR 39.3 indicates that a different approach applies in those situations:  the court can set aside the order if it is satisfied that the conditions in CPR 39.3(5) are met and it does not have to be shown that there are proper grounds for an appeal (and that is important because it could not be said in this case that the exercise by DJ Manners of her discretion was appealable).   In the same way, the court has a wide power to set aside a summary judgment given in the absence of a party (PD24 paragraph 8).  I do not therefore accept the argument that the approach of the court in Forcelux to the exercise of its discretion was per incuriam or that the approach in Roult necessarily applies.  
23.	That is not to say, however, that, in the normal case where a party fails to attend a hearing at which a possession order is made, the discretion vested in the court is wide and unstructured.  First of all, there is a clear indication in s 85(2) itself that Parliament contemplated that save in unusual circumstances the execution of a possession order should bring to an end the tenant’s rights, including his right to apply for an order under that subsection: the relevant subsection is set out in paragraph 6 of this judgment and it expressly limits the court’s powers so that they are exercisable at, and thus only at, “any time before the execution of the [possession order]”. Secondly, the finality of litigation has long been a principle of public policy.  The possession order once made will form a proper basis for execution unless that is the tenant makes an application under s 85(2) in the period allowed by that provision.  As a corollary of that principle, challenges to orders should be by way of appeals.  In the interests of the proper administration of justice and the system of appeals, judges should not sit in judgment on their own orders. The decision of Roult reflects these policy considerations. Thirdly, CPR 39.3 makes it clear that, where a final order is made the defendant should have to produce a good explanation for not attending the hearing, that he acted promptly on learning of the order which he seeks to set aside, and that he should show that he has a real prospect of success in his defence.  These requirements support the policy considerations to which I have referred.
24.	Thus, in my judgment, in the absence of some unusual and highly compelling factor as in Forcelux, a court that is asked to set aside a possession order under CPR 3.1 should in general apply the requirements of CPR 39.3(5) by analogy.  This is in addition to, and not in derogation of, applying CPR 3.9 by analogy, as this court did in Forcelux, as that provision requires the court to have regard to all the circumstances in any event.  However, in my judgment, for the reasons given above, in the absence of the unusual and compelling circumstances of a case such as Forcelux, this court should give precedence to the provisions of CPR 39.3(5) above those enumerated in CPR 3.9.  Even that is subject to a qualification in the case of a secure tenant.  Parliament clearly contemplated in s 85(2) of the Housing Act 1985 that the tenant should have the chance there described of persuading a court to modify an outright possession order. It follows that the requirements of CPR 39.3(5) need not be applied in such a case with the same rigour as in the case of a final order that does not have this characteristic. (It is only fair to Mr Findlay to make the point that DJ Manners expressly had the possibility of a subsequent application by him in mind when she made her order). Accordingly, the court should not decline to exercise its power to set aside a possession order if in consequence the statutory purpose in s 85(2) would be defeated.  Moreover, in my judgment the court can have regard to the wider social context in which these cases come before the courts.  Accordingly, in deciding whether the tenant has a good reason for non-attendance the court can in my judgment have regard to the provisions of the Rent Arrears Pre-Action Protocol and to best practice among social landlords.  It may conclude that, while in the ordinary case a defendant might have had no proper excuse for not attending a court hearing at which the possession order was made, given best practice of social landlords and the provisions of that protocol, a tenant is in fact able to provide an appropriate explanation.   
25.	Where there has been execution of a possession order, that factor will clearly also constitute a relevant circumstance that the court should take into account on any application to set aside that possession order.  The weight to be given to it will depend on the particular circumstances of the case. However, it is difficult to think of a case in which, in the absence of some compelling factor, execution would not be a highly relevant factor if the landlord had proceeded properly to allocate the property to some other tenant or indeed (in some cases at least) to incur expense in refurbishing the property so that it could be allocated to another tenant.    
Issue 2:  Should the order of HHJ Birtles QC be set aside?
26.	In my judgment the judge erred in not concluding that DJ Armon-Jones’ order should be set aside, and in not re-exercising the discretion in accordance with the guidance given above.  His order should thus be set aside.  I have already explained in paragraph 14 above why in my judgment the order of DJ Armon-Jones must also be set aside in any event.  
27.	That means that it is open to this court to re-exercise the discretion.  Miss Bretherton submits that weight should be given to Mr Findlay’s failure to attend the initial hearing, to the question whether his application was made promptly and to the fact that the warrant had already been executed.  (It appears that building work on the property may have already been started before the application was made).   Miss Bretherton submits that, if DJ Armon-Jones’ order setting aside the outright possession order was revoked, then it would still be possible for this court to make a suspended possession order by using its powers under s 85 to vary DJ Manners’ original order, even though the warrant was executed back in July 2009.  Mr Carrott submits that, as the power under s 85(2) to vary an order only applies before the execution of a warrant, it would be impossible for this court to quash DJ Armon-Jones’ order yet make an order for suspended possession.  I do not consider that this is correct for the reasons already given paragraph 11 above.  
28.	Mr Carrott relies on the findings of HHJ Birtles QC.  He submits that Mr. Findlay had not elected not to attend the court hearing, but instead had been trying to sort matters out himself by talking to the local authority.  Mr Findlay had been to see Mr. Alabi, the housing officer, on 11 June.  Also, Mr Findlay’s position had always been that he had not received the papers from the court so he had never thought that his attendance was required.  Mr Carrott also argues that, in general, the problems with his arrears stemmed from problems with his housing benefit rather than his own non-payment.  Mr Carrott submits that it was unusual for a local authority to press for an outright possession order when it knew that there were still significant housing benefit issues (including a large claim for backdated housing benefit) to be resolved. In Mr Carrott’s experience, it is unusual to see an outright possession order being made for arrears of only £1,200.
29.	The difficulty about the re-exercise by this court of the discretion to determine Mr Findlay’s application to set aside the possession order made against him is that there are matters in issue to be decided before the application can be determined. I have referred in paragraph 17 above to the dispute about the amount of the arrears and whether housing benefit was available at all material times.  There is also outstanding Mr Findlay’s application to have the order set aside for oppression, which has not been opened to us and on which we express no view.  
30.	Both parties on reflection after the hearing agreed that, due to the need for findings on the evidence, this case should be remitted to a district judge if the appeal is allowed. On behalf of Hackney, Miss Bretherton stated that Hackney would not seek to quash the order for re-entry pending appeal.  No issue was raised on this appeal on article 8, and if it were relevant it would fall to be raised on the application to be heard by the district judge.
31.	Accordingly, in my judgment, for the reasons given above the right order would be to allow this appeal, to set aside in part the orders of HHJ Birtles QC and DJ Armon-Jones and to remit the outstanding issues to a district judge. 
Lord Justice Wilson:
32.	I agree.
Lord Justice Toulson:
33.	I also agree.