Council defeats Court of Appeal challenge to eviction process

Ashfield District Council was entitled to evict a tenant even though the circumstances differed from those in a court order, the Court of Appeal has ruled.

Tenant David Armstrong had been told in June 2013 to leave a home in Sutton-in-Ashfield because he was in breach of his tenancy agreement.

The case was heard by District Judge Millard who ruled Mr Armstrong should be allowed the opportunity to improve his behaviour.

But in October that year Ashfield found further breaches of the tenancy agreement and sought a warrant for possession, which was issued.

In Armstrong v Ashfield District Council [2018] EWCA Civ 873 Sales LJ noted: “Although by proceeding in this way the respondent gave the appellant notice of what it proposed to do, it was a departure from what DJ Millard had directed should happen in [his] June 2013 order.

“This left open to be resolved the issue whether the respondent was entitled to a warrant for possession in order to give effect to the possession order in paragraph 1 of the June 2013 order, on the grounds that it claimed that in the period since the order was made the appellant had failed to comply with the relevant terms in the tenancy agreement, or whether the stay of the warrant for possession should be made permanent.”

The case came before HHJ Pugsley in the county court in June 2014, who dismissed an objection that Ashfield could not rely on the warrant for possession because it had not correctly followed the procedure stated in the June 2013 order.

HHJ Pugsley said: “It is perfectly obvious what Judge Millard wanted was to ensure that before the order for possession was enforced there should be a judicial review of the legitimacy of ending the [appellant's] possession by enforcing a suspended order he had made. That has been achieved, that is why we are here today.”

He found in favour of Ashfield and said the warrant for possession should be issued but allowing time to appeal.

The case then went to the High Court where it was argued that when HHJ Pugsley ordered execution of the warrant for possession there was no extant order, it having lapsed.

But Patterson J held that the provision in the June 2013 order for automatic discharge of the suspended possession order did not apply where the appellant had breached the tenancy agreement during the period of the suspension of the possession order.

The Court of Appeal held that HHJ Pugsley acted properly and “it is just that the parties should be bound by the outcome of that trial”

Sales LJ also dismissed the claim that the county court trial was procedurally wrong.

“The intended effect of [the June 2013 order] was that there should be a judicial determination whether any allegation of breach of the conditions stipulated in the order was made out, before execution of the order for possession could proceed,” he said.

“The trial before HHJ Pugsley ensured that this substantive requirement was satisfied, even though the precise procedure by which this was arrived at was somewhat different from that set out.”

Mark Smulian