Defendants in possession claims have an intrinsic - and apparently irrevocable - right to take part in hearings.

Defendants may therefore challenge the making of a possession order even where no defence has been filed. Indeed, an order purporting to debar a Defendant from relying on any defence is ineffective.

This right is conferred by CPR 55.7, which also stipulates that no acknowledgement of service is necessary and that default judgment does not apply. It is set out in two separate subsections: 55.7(2), which relates to claims against trespassers and 55.7(3), which deals with "any other possession claim". The former simply disapplies CPR 15.2 and states that "the defendant need not file a defence". Consequently, a trespasser who does not file a defence has not committed a breach and sanctions are inappropriate.

The latter rule, CPR 55.7(3), was the focus of Cross v Mors, heard at the County Court at Liverpool on 6 March 2026. It stipulates that the Defendant "may take part in any hearing" regardless of whether they have filed a defence in time or at all. HHJ Graham Wood KC termed this an "unequivocal" position. HHJ Wood opined (at [52]), "fairness requires that reasons advanced by a tenant’s representative for not making a possession order need to be taken into consideration... even if in many cases the outcome is inevitable." The appropriate sanction - if any - is set out in CPR 55.7(3), which invites the Court to consider making an adverse costs order.

Of course, none of this detracts from the need for a party to evidence their case. The history of Cross v Mors was somewhat tangled, and the District Judge was wrongly told that there was no admissible evidence before the Court. While that mistake had no practical impact on the underlying question, since the Defendant had the right to be heard in any event, the absence of admissible evidence is clearly likely to disadvantage the Defendant. More specifically, HHJ Wood's comments are not an endorsement of the practice of some District Judges, who adjourn possession claims brought on the basis of rental arrears when a Defendant merely asserts disrepair. There is a difference - explicitly recognised by HHJ Wood - between being heard and being indulged.

One interesting point is whether the exercise of this right be a Defendant automatically disapplies fixed costs. can be said to have removed fixed costs. While District Judges are likely to adopt a less predictable approach, they should where appropriate be reminded that the position is equally “unequivocal”: pursuant to CPR 45.16(d), fixed costs only apply where a Defendant “has neither delivered a defence, or counterclaim, nor otherwise denied liability”. As such, a Defendant who runs a hopeless defence removes themselves from the protection of fixed costs.

A further point follows from HHJ Wood’s remark at [53] of Cross v Mors: "To decline to hear submissions would in my judgment be an exceptional course." Perhaps regrettably, the judgment does not develop this thought. It is therefore unclear whether - and, if so, under what conditions and in what way - the Defendant's right to "take part in any hearing" may be curtailed. Nevertheless, it appears that Defendants in possession hearings should not be 'muzzled' - at least in all but decidedly abnormal circumstances.