County court – Warrant for possession – Execution – Defendants occupying business premises under caretaking agreement – County court making order in favour of claimant landlord for possession of business premises – High Court granting stay of execution pending appeal outside statutory time limit – Court setting aside order for stay in absence of defendants – Whether appellate court having power to stay execution beyond time limit – Application granted
The claimant was the head lessee of licensed premises that had been occupied by a tenant pursuant to a lease that expired in December 2007. The claimant intended to assign the headlease and entered into a caretaking agreement with the first defendant pending the assignment. The second defendant was the first defendant’s partner. In February 2008, pursuant to that agreement, the claimant gave the first defendant notice terminating the agreement. The second defendant refused to give up possession, claiming that she had been promised a long lease.
The claimant began proceedings in the county court, but the defendants arrived late at the hearing and found that the judge had made an order for possession in their absence, despite the fact that they had informed the court staff of their late arrival. The judge refused to vary his order and a warrant for possession was issued on the same day.
The day before the warrant was due to be executed, the High Court granted a stay of execution of that warrant pending the determination of an application by the second defendant for permission to appeal. The claimant applied successfully for the stay to be lifted on the ground that section 89(1) of the Housing Act 1980 precluded a stay of execution for more than 14 days from the date of a possession order (or six weeks in a case of exceptional hardship) and a period of six weeks had already expired before the stay was granted.
The defendants applied to set aside that order, arguing that section 89(1) of the Act did not apply to a court exercising an appellate jurisdiction.
Held: The application was granted.
The restriction imposed by section 89(1) on postponing the enforcement of a possession order applied only to the court that had made the order and not to a court exercising appellate jurisdiction.
There was no authority on the interpretation and applicability of section 89(1) in the context of an appeal from the court that had made the possession order. It was possible to read that subsection either as restricting the powers of the appellate court or as applying only to the court that had made the order. However, the consequences of the former interpretation would be odd and apparently unjust since it would rarely be possible to bring an appeal against a possession order within the section 89(1) time limits.
Parliament could not have intended that even a trespasser should be denied the fruits of a potentially successful appeal. Further, it was notable that the long title to the 1980 Act described it as one “to restrict the discretion of the court in making orders for possession of land”. That did not suggest that parliament had intended to restrict the discretion of an appellate court, with jurisdiction to hear and determine an appeal from the court that made the order for possession, when ordering a stay of execution of the order for possession pending such an appeal.
Peter Petts (instructed by Ford & Warren, of Leeds) appeared for the claimant; Owen Roach (instructed by Wainwright & Cummins) appeared for the defendants.
Eileen O’Grady, barrister
