Landlord and tenant – Possession order – Stay of execution – Housing Act 1980 – County court making possession order in favour of appellant – High Court granting stay of execution outside time limits in section 89 of 1980 Act pending application for permission to appeal – Court setting aside stay in absence of respondents – Stay reinstated on appeal – Whether section 89 applying to appellate court – Whether appellate court having inherent jurisdiction to stay execution beyond section 89 time limits – Appeal dismissed
The appellant held a headlease of licensed premises that it intended to assign. In the meantime, the respondents were permitted to occupy the premises. When they later refused to give up possession, the appellant brought possession proceedings. A possession order was granted in the county court in the absence of the respondents, who arrived late, having not been informed of the time of the hearing. A warrant for possession was executed on the same day. The judge declined a request to vary that order, even though one of the respondents had presented him with a defence and a document that purported to be a lease granted by the appellant. However, the High Court subsequently granted a stay of the warrant pending the determination of the respondents’ application for permission to appeal against the possession order. The appellant in turn successfully applied for the stay to be lifted on the ground that section 89(1) of the Housing Act 1980 restricted the power to stay execution to 14 days after the date of the order for possession or six weeks in cases of exceptional hardship, and that both time periods had expired.
That decision was reversed on an application by the respondents. The judge interpreted section 89(1) as applying only to the court that made the possession order and not to a court exercising an appellate jurisdiction. Accordingly, he held that a stay could be granted out of time pending the determination of an application for permission to appeal: see [2008] EWHC 1688 (QB); [2008] 37 EG 153. The appellant appealed.
Held: The appeal was dismissed.
Section 89 applied both to the county court and the High Court but restricted the jurisdiction only of the court making the relevant order. It did not prevent a court that was exercising an appellate jurisdiction from applying its inherent jurisdiction to stay the order pending an appeal. Although the inherent jurisdiction could be limited by statute, clear words would be needed and such were absent from section 89. An appellate court was therefore able, in appropriate circumstances, to preserve the position until it could be dealt with in the appeal, thereby avoiding the potential injustice that could result if a defendant were obliged to give up possession in the meantime: Hackney London Borough Council v Side by Side (Kids) Ltd [2003] EWHC 1813 (QB); [2004] 1 WLR 363, Boyland & Son Ltd v Rand [2007] EWCA Civ 1860; [2007] HLR 24 and Bibby v Partap [1996] UKPC 13; [1996] 1 WLR 931 considered.
Peter Petts (instructed by Ford & Warren, of Leeds) appeared for the appellant; the respondents did not appear and were not represented.
Sally Dobson, barrister
