James Stark successfully appeals possession order made against vulnerable client
27 April 2026
James Stark represented Ms Mors during her appeal at Liverpool County Court (pictured). Credit: Philip Brookes / Shutterstock.
Garden Court North’s James Stark acted for Ms Mors in her appeal against an order of District Judge Colvin, which made an outright possession order against her of her home. HHJ Graham Wood KC, the Designated Civil Judge for Liverpool, allowed her appeal and remitted the claim for directions.
Ms Mors faced possession proceedings on grounds that it was found that there had been cultivation of cannabis at her home let to her by Mr Cross. They had been on good terms and she asked him to feed her dog when she was taken into hospital. On visiting the property, Mrs Cross was alleged to have found a room upstairs and the attic had been used for cultivation and unauthorised alterations had been made to the attic.
Ms Mors suffers from a number of debilitating mental and physical health conditions.
Proceedings were commenced under Grounds 12 and 13 Schedule 2 Housing Act 1988. Ms Mors did not file a defence, but sent in a lengthy handwritten witness statement attached to a blank N244 form having been told it was too late to file a defence. It was rather “rambling and incoherent” but set out her responses to the factual claim, her medical conditions, and what the consequences of eviction might be and she clearly opposed the claim. She was unrepresented throughout.
Difficulties obtaining legal aid
A number of procedural hearings followed, the case was complicated by the court sending out orders late and in respect of one order by a DDJ Hanratty that had extended time for a further witness statement by Ms Mors – not at all. None of these procedural hearings had ordered the filing of a defence.
The claim came on for hearing before DDJ Davies. He expressed discontent with the state of the case and adjourned the claim to a final hearing before DJ Colvin. In the course of the hearing before DDJ Davies he decided a formal defence was needed. He was persuaded that an unless order should be attached to it.
Ms Mors did not comply with that order. Although she had now found representation, there were difficulties in obtaining legal aid.
When the claim came before DJ Colvin he decided that the unless order shut her out entirely from defending the claim even as to reasonableness and seeking to suspend any order for possession. He also mistakenly found that she did not have permission to rely on witness evidence as DDJ Hanratty’s order from earlier in March 2025 had not been drawn up.
HHJ Wood allowed Ms Mors appeal. He found that the unless order was not effective due to CPR 55.7(3) and that the position was unequivocal. An unless order in respect of a Defence could not shut out a defendant from participating in the possession hearing. Noting the reference in CPR 55.7(3) to any hearing, he rejected a submission it only applied to an early hearing.
This was compounded by the incorrect impression given that Ms Mors had not filed any admissible evidence due to the court not being made aware of the order of DDJ Hanratty.
HHJ Wood also found that, even if he was wrong regarding the reasons for a lack of admissible evidence, he would have allowed the appeal on the basis of the refusal of DJ Colvin to allow submissions to be made under Section 9 Housing Act 1988 as an unless order in respect of a defence could not prevent the application of the extended discretion.
Following HHJ Wood’s judgment handed down on 2 April 2026, James described Ms Mors’ case as “an important decision by a senior circuit judge”.
“Apparently, unless orders being made in respect of defences in possession proceedings are all too common. It is clear that in substance what such an order seeks to create is default judgment which is the usual consequence of a failure to file a defence ( see CPR 15.3) but which is expressly prohibited by CPR 55.7(4). The purpose of an unless order is to enforce the rules of the court not to reverse the rights given by the rules under CPR 55.7(3) hence the findings of HHJ Wood”, James said.
“A landlord is not without remedy. As the judge points out it is very common for possession claims with only short issues of dispute to be dealt with on the basis of witness statements at a hearing. If a tenant does not file a defence they face the risk of the claim being decided as not appearing to be genuinely disputed on substantial grounds at an early hearing. Some district judges make perfectly proper orders that if a defence is not filed as ordered the claim is returned to the block list for such disposal. What this decision makes plain, however, is that an unless order in respect of a defence in a possession claim is inappropriate and ineffective when CPR 55.7(3) prescribes the consequences for failure to file a defence.”
James is Chair of Garden Court North’s housing and homelessness team. He was instructed by Siobhan Taylor-Ward of Lawstop Merseyside to represent Ms Mors.
Additional media
Liverpool County Court – Judgment On Appeal from District Judge Colvin
For further information, please contact Alex Blair, Communications Manager at Garden Court North Chambers: ablair@gcnchambers.co.uk
