Enforcing A Possession Order After 6 Years

CPR 83.2(3)(a) governs the situations in which the court’s permission is required to issue a warrant of possession and provides as follows:

This rule applies to— […] (d) warrants of possession.

A writ or warrant to which this rule applies is referred to in this rule as a 'relevant writ or warrant'.

A relevant writ or warrant must not be issued without the permission of the court where—

six years or more have elapsed since the date of the judgment or order;

A warrant of execution shall not issue without the permission of the court where-

six years or more have elapsed since the date of the judgment or order;

An application for permission shall be supported by a witness statement or affidavit establishing the applicant’s right to relief and may be made without notice being served on any other party in the first instance but the court may direct the application notice to be served on such persons as it thinks fit.

An application for permission may be made in accordance with Part 23 and must—

(a)identify the judgment or order to which the application relates;

(b) if the judgment or order is for the payment of money, state the amount originally due and, if different, the amount due at the date the application notice is filed;

(c) where the case falls within paragraph (3)(a), state the reasons for the delay in enforcing the judgment or order;

(d) where the case falls within paragraph (3)(b), state the change which has taken place in the parties entitled or liable to execution since the date of the judgment or order;

(e) where the case falls within paragraph (3)(c) or (d), state that a demand to satisfy the judgment or order was made on the person liable to satisfy it and that that person has refused or failed to do so;

(f) give such other information as is necessary to satisfy the court that the applicant is entitled to proceed to execution on the judgment or order, and that the person against whom it is sought to issue execution is liable to execution on it.

An application for permission may be made without notice being served on any other party unless the court directs otherwise.

The procedural requirements are much more than a mere formality and it is an abuse of process to issue a warrant without complying with the procedural obligations: Hackney London Borough Council v White (1996) 28 H.L.R. 219; Court of Appeal. In making the application, the procedural obligations are mandatory. Indeed, in Hackney v White the Court of Appeal found that the failure to comply could not be saved by Order 37 r. 5, which provides explicitly that “a failure to comply with any requirement of these rules, […] shall be treated as an irregularity and shall not nullify the proceedings”. The Court of Appeal held that the procedural rules were important and must be followed.

Further, in the ordinary way, when making an ex parte application there is a duty of full and frank disclosure on the party making the application:

“The obligatory affidavit [now a witness statement will be permitted] establishing the Applicant's right to relief must, in accordance with normal principles, place all relevant circumstances before the court. This will enable the court to decide whether it is appropriate to make an Order ex parte, as sub-rule 2 permits, or to direct under the latter part of that rule that notice should be given to the tenant so that an inter partes hearing will take place.” Hackney v White Per Hirst LJ.

In respect of such permissions Evans-Lombe J found at paragraph 25 of Duer v Frazer [2001] 1 WLR 919 that –

“the court would not, in general, extend time beyond the six years save where it is demonstrably just to do so. The burden of demonstrating this should, in my judgment, rest on the judgment creditor. Each case must turn on its own facts but, in the absence of very special circumstances such as were present in National Westminster Bank plc v Powney [1991] Ch 339, the court will have regard to such matters as the explanation given by the judgment creditor for not issuing execution during the initial six-year period, or for any delay thereafter in applying to extend that period, and any prejudice which the judgment debtor may have been subject to as a result of such delay including, in particular, any change of position by him as a result which has occurred. The longer the period that has been allowed to lapse since the judgment the more likely it is that the court will find prejudice to the judgment debtor.”

An eviction after 6 years without obtaining permission is unlawful and damages may be awarded: AA v London Borough of Southwark [2014] EWHC 500 (QB)

Cases Where The Landlord’s Interest Has Transferred

Similarly, the landlord must seek permission to enforce the possession order where

(b) any change has taken place, whether by death or otherwise, in the parties—

entitled to enforce the judgment or order; or

liable to have it enforced against them;

Usually the circumstances in which this will apply, is where the landlord’s interest is transferred, perhaps to another housing association. In those cases it is not uncommon for the landlord to obtain a ‘global’ substitution order substituting the new landlord for the old landlord in existing possession orders or pending possession claims. However, such order while entitling the landlord to the benefit of the possession order, does not dispose of the requirement under CPR 83 to make an application for a warrant in the manner envisaged by that section; that is, by formal application notice supported by evidence.

 

Enforcing The Warrant On Different Grounds To Those On The Possession Order

In Sheffield City Council v Hopkins [2002] H.L.R. 12 the Court of Appeal held that in exercising its discretion to suspend or stay the execution of a possession order under the Housing Act 1985, section 85(2), the court is not restricted to consideration of facts connected to the ground for possession on which the order was granted although it is not obliged to allow the landlord to rely on other matters and it may not be appropriate to do so.

The Court of Appeal found that [para 29] on an application to suspend or stay the execution of a possession order, the court should bear in mind the following factors when exercising its discretion whether to consider evidence which is not relevant to the original ground for possession:

the discretion should be used to further the policy of the Housing Act 1985 that a tenant should only be evicted where a ground for possession has been established, it is reasonable to do so and the tenant has breached the terms of any suspension of the possession order;

the overriding principles contained in the C.P.R. 1998, and in particular the need for applications to be dealt with in a summary and proportionate manner; this may mean that wider issues cannot be dealt with in the framework of an application to suspend the execution of a warrant and may have to be dealt with in another way;

the need for a tenant to have clear notice of the allegations being made, even though the matters adduced by the landlord were not relied on at the possession hearing;

whether the landlord included the allegations in the original proceedings, or sought to have a condition imposed in the possession order; if the landlord did so, this will favour the court exercising its discretion to take into account the material relied on by the landlord;

whether the allegation related to events which occurred before or after the possession order was made; while allowance must be made for the fact that the landlord may have wished to avoid the expense of complex and contested proceedings, generally the discretion should be more readily exercised in favour of taking into account matters which occurred after the possession order rather than matters which occurred prior to the commencement of proceedings;

the practicality of dealing with contested issues of fact at a hearing of an application to suspend a warrant of possession; and,

the fact that the tenant is at mercy and the responsibilities of a public landlord to other tenants.

Further at [30] Lord Woolfe LCJ stated that “The considerations which I have indicated should be borne in mind are not exhaustive of the circumstances which will be relevant. District judges have to exercise their discretion in a sensible and reasonable way, bearing in mind both the importance of the issue before them to the tenant who is at risk of losing his or her home, and the responsibilities of a social landlord to other tenants for whom the social landlord is responsible.”

This means that the first question is whether the court should exercise its discretion to permit a landlord to rely on new evidence. Once that discretion has been exercised, there is then the next question which is whether those allegations are proved and, if so, whether it is reasonable to evict the tenant [29(a)]. In effect, this involves the same issues that one would see at an ordinary trial on grounds of nuisance / antisocial behaviour and the same considerations therefore apply.