This case illustrates the court taking a practical approach to historical procedural faults.
An application to issue a writ of possession and control (“the application”) failed to reveal an ongoing appeal and did not give adequate notice of the intention to enforce. The application led to the court granting permission for a writ to be issued but enforcement then took over two years, by which time there was no ongoing appeal and those who occupied the property had known that there was an intention to evict. Should the permission for the writ be set aside? This was the question Master Sullivan had to answer in Hertfordshire County Council v Davies [2020] EWHC 838 (QB)
Once an order for possession is made in the High Court, if the defendant does not vacate the property a claimant may make an application to issue a writ of possession. Permission to issue the writ is requested by application to a master under CPR 83.13.
This provides: “(1) A judgment or order for the giving of land may be enforced in the High Court by one or more of the following means – (a) writ of possession… (2) Subject to paragraphs (3), (5) and (6), a writ of possession to enforce a judgment or order for the giving of possession of any land… will not be enforced without the permission of the court… (8) Permission referred to in paragraph (2) will not be granted unless it is shown – (a) 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…”
The writ of possession enables the High Court enforcement officers to enforce possession.
In this case, the application should have disclosed that permission to appeal to the Court of Appeal had been given. However, by the time the writ was enforced there was no ongoing appeal (contrast with Ahmed v Mahmood [2013] EWHC 3176).
In relation to notice, Master Sullivan considered CPR 83.13 and also Gupta v Partridge [2017] EWHC 2110 (QB) and Brooker & Wilson v Sandi St Paul [2017] EWHC 3510.
He found that although the occupiers had been aware of the possession order, there had not been adequate notice prior to the application as the ongoing nature of the appeals meant some notice of intent to enforce was required. However, subsequently adequate notice of the intent to enforce had been provided and there had been ample time to make an application for a stay of enforcement. He further refused to accept that there was an arguable case (based on the claimant’s public sector equality duty) that enforcement should be stayed.
In those circumstances, despite the defaults, Master Sullivan did not set aside the permission to issue the writ and ordered under CPR 3.10 that the writ was validly issued. Rule 3.10 states: “Where there has been an error of procedure such as a failure to comply with a rule or practice direction – (a) the error does not invalidate any step taken in the proceeding unless the court so orders; and (b) the court may make an order to remedy the error.”
Elizabeth Haggerty is a barrister at Lamb Chambers
