Where a landlord obtains a possession order and the tenant refuses to leave, a county court bailiff may be instructed to enforce the order. Some landlords, however, use the High Court enforcement service. Although it is more expensive, it is apparently a quicker way of recovering possession. Application is made to a High Court enforcement officer (HCEO).
What notice of this has to be given to the occupiers? This was considered by the High Court in the case of Partridge v Gupta [2017] EWHC 2110 (QB). It concerned a possession claim against an assured shorthold tenant (Mr Partridge), who defended the claim. However, a possession order was made. The tenant’s appeal against the order was dismissed and he sought permission to appeal.
As all of this was proceeding, the landlord (Mr Gupta) instructed an HCEO to seek a transfer of the case to the High Court in order to apply for permission to issue a writ of possession (under CPR rule 83.13). Application was made under section 42 of the County Courts Act 1984 for the transfer of the case to the High Court with the intention seek ing permission to issue a writ of possession under CPR rule 83.13. Notification was given by letter to the tenant (and another one to the occupants) advising them to seek independent legal advice and to contact the HCEO’s office if they had any queries.
After this took place the tenant’s application for permission to appeal the possession order was refused. Without notifying the tenant, HCEO successfully applied to the High Court for a writ of possession and the landlord recovered possession.
Should the writ for possession have been granted without the tenant being informed of the application? CPR rule 83.13 includes a requirement 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”. Dismissing the tenant’s appeal against the issue of the possession writ, the court held that there is no requirement that notice of the application must be given provided that the court is satisfied that the tenant or any other occupants are aware of the proceedings. Given the history of this case, the court concluded that the tenant had been made aware of the proceedings and this complied with the obligation in rule 83.13.
An earlier decision of the High Court (Secretary of State for Defence v Nicholas [2015] EWCA Civ 53) decided that the occupier is entitled to be informed of an application for permission to issue a possession writ is being made. But this was distinguished in Partridge on the basis that in the other case the occupier had a pending application to the Supreme Court.
As to the general approach, where a sole occupier is aware of the possession proceedings a reminder of the terms of the possession order should be sufficient notice. Notice should also be given to any other occupiers.
This decision may lead to more applications for possession writs in the High Court. Would the procedures not be improved though, if occupiers are also given the date and the time on which possession will be recovered?
James Driscoll is a solicitor and an author
