Claim for Possession: Whether defendants should be permitted to amend defence and counterclaim in a possession claim (Healey v Fraine and others – 2023)

In a claim for possession, could the defendants be permitted to amend their defence and counterclaim which contained a number of deficiencies?

The background

In Healey v Fraine and others [2023], a claim for possession was brought by the estate of a deceased claimant against defendants who occupied the property. The defendants brought a defence of adverse possession and a counterclaim that they were entitled to benefit from registration as proprietors of the property. The defendants also cited an alternative defence that an equitable interest in the property had been acquired, making a counterclaim for a declaration as to their beneficial interest in the property.

There were deficiencies in both the defence and counterclaim, and the defendants applied for permission to amend. This was granted at first instance, but refused on appeal by the claimant. The defendants brought a further appeal against the refusal to amend the defence and counterclaim.

The decision

The Court of Appeal dismissed the defendants’ appeal, finding that the judge had considered the case on the facts presented and was not required to consider alternatives in order to ‘salvage’ the pleading.

The Court of Appeal considered whether the judge had been wrong to approach the amended defence and counterclaim by considering that adverse possession was pleaded as a defence, but that the amended defence and counterclaim did not rely on adverse possession at all. The Court of Appeal found that the judge was justified in her approach, which was founded on the basis that the pleading was impermissible as a result of pleading two entirely different points simultaneously.

The judge had stated that adverse possession could not be acquired if the defendants were in possession of the property as licensees, as had been pleaded, and found that the suggested amendment was unclear and unsatisfactory, being self-contradictory.

Rather than being granted permission for an unsatisfactory amendment, the defendants were to present an amendment which was sustainable and properly formulated.

Advice and action for landlords

This is an interesting point of procedural reference, finding that a contradictory and unsatisfactory amendment should be disallowed in its entirety and the defendants required to present a properly-formulated amendment.

The decision was centred on the principle that a claim for adverse possession was not sustainable when the defendants were also in occupation with the permission of the owner by way of a licence to occupy.