Practice and procedure – Possession order – Writ of possession – Respondent landlord obtaining possession order from county court against appellant former tenant in respect of residential property – Proceedings being transferred to High Court to enforce possession order – Court permitting respondent to issue writ of possession – Appellant applying to set aside order giving permission – Whether sufficient notice of proceedings being given to appellant – Appeal dismissed
The appellant was the assured shorthold tenant of a property in Watford which, until his eviction, he occupied with his wife and three children. The respondent was the landlord. The tenancy was for a fixed term of six months, at the end of which a further six month tenancy was agreed in August 2014. On 19 January 2015, the respondent served notice on the appellant under section 21 of the Housing Act 1988, which gave a landlord an automatic right of possession without giving reasons once the fixed term had expired. On 30 November 2015, the respondent issued a claim for possession in the Watford County Court to which a defence was filed. The district judge made a possession order requiring the appellant and his family to give up possession, ordered the appellant to pay costs of £359.50 and refused the appellant permission to appeal on the basis that there was no real prospect of success.
The respondent instructed a High Court enforcement officer (the interested party) to apply, pursuant to section 42 of the County Courts Act 1984, to transfer the case to the High Court for enforcement, with a view to seeking permission to issue a writ of possession pursuant to CPR r 83.13. The officer notified the appellant and his family, as the occupants of the property, about the section 42 application and of an application under CPR r 83.13. The notification was made by two letters, one addressed to the appellant by name and the other to “the occupants”. The letters recommended that the appellant and his family should seek independent legal advice and contact the officer if they had any questions about the impending eviction. The appellant was subsequently refused permission to appeal against the possession order and the respondent’s section 42 application was granted. The officer made a “without notice” application for permission to issue a writ of possession which was granted and the writ was issued.
Practice and procedure – Possession order – Writ of possession – Respondent landlord obtaining possession order from county court against appellant former tenant in respect of residential property – Proceedings being transferred to High Court to enforce possession order – Court permitting respondent to issue writ of possession – Appellant applying to set aside order giving permission – Whether sufficient notice of proceedings being given to appellant – Appeal dismissed
The appellant was the assured shorthold tenant of a property in Watford which, until his eviction, he occupied with his wife and three children. The respondent was the landlord. The tenancy was for a fixed term of six months, at the end of which a further six month tenancy was agreed in August 2014. On 19 January 2015, the respondent served notice on the appellant under section 21 of the Housing Act 1988, which gave a landlord an automatic right of possession without giving reasons once the fixed term had expired. On 30 November 2015, the respondent issued a claim for possession in the Watford County Court to which a defence was filed. The district judge made a possession order requiring the appellant and his family to give up possession, ordered the appellant to pay costs of £359.50 and refused the appellant permission to appeal on the basis that there was no real prospect of success.
The respondent instructed a High Court enforcement officer (the interested party) to apply, pursuant to section 42 of the County Courts Act 1984, to transfer the case to the High Court for enforcement, with a view to seeking permission to issue a writ of possession pursuant to CPR r 83.13. The officer notified the appellant and his family, as the occupants of the property, about the section 42 application and of an application under CPR r 83.13. The notification was made by two letters, one addressed to the appellant by name and the other to “the occupants”. The letters recommended that the appellant and his family should seek independent legal advice and contact the officer if they had any questions about the impending eviction. The appellant was subsequently refused permission to appeal against the possession order and the respondent’s section 42 application was granted. The officer made a “without notice” application for permission to issue a writ of possession which was granted and the writ was issued.
The appellant applied to set aside the order giving permission on the basis that the respondent had failed to meet the requirement under CPR r 83.13(8) that “every person in actual possession of the whole or any part of the land (‘the occupant’) has received such notice of the 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”. That application was dismissed on the ground that rule 83.13(8) did not require actual notice but only sufficient notice of the proceedings which had been given in the present case. The appellant appealed.
Held: The appeal was dismissed.
(1) Untrammelled by authority, the issue to be addressed by a Master considering a “without notice” application for permission to issue a writ of possession was simply whether he/she was satisfied that “every person in actual possession of the whole or any part of the land … has received such notice of the 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”. The well-established practice was that the application was made on a “without notice” basis. That reading of the rule suggested that some degree of flexibility was permitted in the court’s approach. Notice of the proceedings for the purposes of CPR 83.13(8) did not necessarily require either the service of the formal notice of application for permission to issue a writ of possession or even a more informal intimation by letter or other communication that the application would be heard on a particular day or at a particular time. Either would be sufficient but neither was required provided that the notice was sufficient to enable the occupants to apply for relief. What might constitute sufficient “notice of the proceedings” for the purposes of CPR r 83.13(8) might vary from case to case: Leicester City Council v Aldwinckle (1991) 24 HLR 40 considered. Secretary of State for Defence v Nicholas [2015] 4064 (Ch) distinguished.
(2) Where there was a sole occupant who was the subject of the possession order who had full knowledge of the possession proceedings, a reminder of the terms of the court order and a request that possession be given up under the order was, generally speaking, sufficient notice within the rule. Any doubt about whether that was sufficient in a particular case could be resolved by saying, in the same communication, that permission to apply for a writ of possession would be sought from the court in due course if possession was not delivered up and that eviction would follow.
(3) Where the sole defendant had played no part in the possession proceedings, a letter or other suitable form of communication containing all the above information ought to ensure that sufficient notice had been given. Where there were occupants other than the defendant to the possession proceedings known to occupy the property, then a letter in similar terms was required to be addressed to them (if known by name) or to “the occupants” was required, it being necessary to include reference to the intention to apply for permission to issue a writ of possession if possession was not delivered up by the date prescribed in the order and that eviction would follow. In the present case, the appellant and his family had been given sufficient notice of the proceedings.
Justin Bates and Amy Just (instructed by the Bar Pro Bono Unit) appeared for the appellant; Ben Maltz (instructed by Carr and Kaye, of Welwyn, Hertfordshire) appeared for the respondent; Shahram Sharghy (instructed by the Burlington Group) for the interested party.
Eileen O’Grady, barrister
Click here to read a transcript of Gupta v Partridge.
