Enforcement of possession orders

Recent case law has shone a light on the received wisdom that enforcement of a possession order by way of a High Court writ is a speedier remedy than enforcement of a possession order by way of County Court warrant. This had generated uncertainty for social landlords who seek to efficiently manage their housing stock.

Transfer to the High Court

The first hurdle for a landlord who intends to enforce by way of writ in the High Court is that the vast majority of possession claims will have been issued in the County Court.[1] It follows that in such circumstances, an application to transfer proceedings up to the High Court should be made pursuant to section 42(2), County Courts Act 1984.[2]  Whilst such an application may be made ‘without notice’, e.g. orally at the end of a possession hearing, this is unlikely to be best practice, and would leave a landlord exposed to further costs should the transfer order be challenged.[3] Transfer to the High Court for the purposes of enforcement is a discretionary remedy, and the court “must” have regard to the criteria set out at CPR r.30.3(2). Whilst the criteria for a transfer order are likely to be largely irrelevant when the transfer concerns enforcement only, an application to transfer should not be rubber stamped by the County Court judge as if it were an administrative act.[4]

Permission of the Court

The second hurdle for landlords is, subject to limited exceptions,[5] permission of the High Court is required to issue a writ of possession: CPR r.83.13(2). Permission will not be granted unless, inter alia, it is shown “that every person in actual occupation of the whole or any part of the land (“the occupant”) has received such notice of proceedings as appears to the court sufficient to enable the occupant to apply to the court for any relief to which the occupant may be entitled”: CPR r.83.13(8). In Nicholas v Secretary of State, High Court, Chancery Division, Rose J, August 24, 2015, the High Court confirmed that failure to provide notice, such that the occupants do not have the opportunity to apply to the court for any relief, is a sufficient basis upon which to set aside a writ of possession after it has been executed. Further, failure to provide complete information concerning the defendant’s pending application to appeal in the possession proceedings was an abuse of process.

This therefore begs the question as to what amounts to ‘notice’ sufficient to ensure landlords avoid falling foul of r.83.13(2)? In Nicholas v Secretary of State, High Court, Chancery Division, 15 January 2016 (see here), following the set aside of the ‘first’ writ, the Secretary of State applied again for permission, ensuring that solicitors for Ms Nicholas were notified by email an application for permission was being made, as well as serving a copy of the Application Notice and supporting notice. Although there is no prescribed mechanism by which occupiers should be put on notice of the pending application for permission, landlords will be motivated to reduce the risk of a set aside at a later date and accordingly service of the Application Notice would be the surest way to ensure compliance with the rules.

Procedural fairness

The third hurdle for landlords is perhaps the one over which there is the most uncertainty. Supposing a landlord is granted a transfer order, and he correctly puts all occupiers on notice by service of the Application Notice concerning permission for a writ, what is the recipient of such notice to do and what impact will this have on proceedings, both substantively and procedurally? Unlike enforcement in the County Court, where a defendant will be served by the court with a Notice of Eviction (Form N54), containing information of the courts power, in some circumstances, to suspend the warrant and postpone the date of eviction, and importantly, information on the correct procedure to be followed for an application for a stay,[6] enforcement by way of writ does not provide a defendant with the equivalent information.

This query over the procedural fairness was highlighted in Birmingham City Council v Mondhlani [2015] EW Misc B41 (CC). The concern of the court was such that oral evidence was requested from the local authority’s solicitor as to the procedural safeguards that would be adopted after a writ of possession were issued.[7] It follows that the steps a social landlord may be required to take before either a transfer order is made, or permission for a writ is granted, are striking. In addition, all landlords and occupiers will face the inherent procedural awkwardness which follows from the fact that although both parties should be aware that a landlord is seeking permission for a writ, there is no requirement that there be an oral hearing of that application, nor is there a mechanism by which the defendant/occupiers will be notified of the procedure for putting his case before a judge.

Conclusion

It remains to be seen how the courts will balance the rights of landlords, who seek efficient enforcement of possession orders against ensuring procedural fairness to occupiers. As it stands, in light of recent cases, social landlords who elect to pursue enforcement in the High Court may be well advised to pause for thought, ensuring they understand the procedure to be followed, as well as being alive to issues of procedural fairness for their tenants.

Amy Just (née Knight) is a barrister at Arden Chambers. She can be contacted on 020 7242 4244 or This email address is being protected from spambots. You need JavaScript enabled to view it..