Background
Chun Hing Tse held a long leasehold interest in residential property at 114 Parrots Field, Hertfordshire. In 2019, the freeholder, Tulsense Limited, commenced forfeiture proceedings for non-payment of ground rent. District Judge Beamish made a possession order on 19 June 2019, forfeiting the lease. Unknown to the appellant, he was locked down in Hong Kong and never received notice of the proceedings. The warrant for possession was executed and the property was cleared and renovated. A new long lease was subsequently granted to a third party.
In October 2022—nearly three years later—the appellant’s cheque payment was returned and he first learned that his lease had been forfeited. Returning to England in October 2023, he instructed solicitors. Judge Murch (sitting in the County Court at Luton) refused both to set aside the 2019 order and to grant permission for a late appeal. The appellant appealed that refusal to the High Court.
The Court’s Holding
Mr Justice Thompsell allowed the appeal, finding that Judge Murch had erred in his discretionary assessment on multiple grounds. First, while substantial delay had occurred, the greater portion—from June 2019 to October 2022—was not the appellant’s fault and was contributed to by the respondent’s failure to make reasonable inquiries when multiple demands and notices went unanswered. CPR 6.9(3) imposes a duty to take reasonable steps to ascertain a defendant’s current address when the claimant has reason to believe the registered address is no longer current. The respondent should have made such inquiries rather than proceeding in the appellant’s absence. Judge Murch’s consideration of delay was therefore unsafe.
Second, on the question of “good reason for non-attendance,” the court held that lack of awareness of the proceedings constitutes a good reason simpliciter. Judge Murch erred by going behind that reason to question why the appellant had not arranged post redirection while overseas during Covid lockdown, and by failing to consider whether the respondent’s omissions in service contributed to that lack of awareness. Third, and significantly, the respondent’s own solicitors had admitted in correspondence that a payment of £4 ground rent was received and applied in December 2018. Under established waiver doctrine, acceptance of even a nominal rent payment operates as an irrevocable election not to forfeit for non-payment of rent prior to that date. Since the arrears relied upon for forfeiture fell below the statutory threshold of £350 under the Commonhold and Leasehold Reform Act 2002, this waiver would likely defeat the forfeiture claim entirely. Judge Murch was wrong to dismiss this as speculative or to find the appellant had failed to meet the reasonable prospect of success test.
Key Takeaways
- Courts must weigh delay attributable to the other party’s procedural failures or inaction differently from delay caused by the applicant—the absence of proper service inquiries significantly undermines strict application of “promptness” requirements.
- Lack of knowledge of proceedings due to non-receipt of notice is a good reason for non-attendance; courts should not penalize applicants for failing to take protective measures (such as post redirection) when overseas during lockdown unless the respondent has satisfied its duty to locate them.
- Acceptance of even a small payment of rent operates as a waiver of forfeiture for all prior arrears, regardless of the landlord’s motive or knowledge—this is determined objectively and can wholly defeat a forfeiture claim.
- A freeholder receiving no response to multiple demands and notices must, under CPR 6.9(3), take reasonable steps to ascertain the tenant’s current address before proceeding with possession claims in the tenant’s absence.
Why It Matters
This decision rebalances the tension between finality and fairness in long-delayed challenges to forfeiture orders. While courts ordinarily require prompt action and give significant weight to a respondent’s change of position (the respondent had renovated the property and created third-party rights), Thompsell emphasizes that procedural fairness demands recognition when much of that delay is not the defaulting party’s fault. The judgment is particularly significant for residential leaseholders overseas: it establishes that absence during lockdown does not defeat the right to later challenge an unfair forfeiture, especially where the freeholder has failed in its duty to make basic inquiries about non-response to notices.
The waiver holding is equally important. It confirms that the acceptance-of-rent doctrine operates mechanically and objectively, and that a freeholder cannot escape its reach by pointing to lack of evidence when it alone holds the payment records and has destroyed the tenant’s documents. The decision thus protects leaseholders from technical forfeiture traps where nominal payments have been made and may have been lost or misrecorded in the landlord’s systems.