Secure tenancy — Non-payment of rent — Possession order obtained — Warrant of execution issued more than six years after date of order — Warrant executed and applicant evicted — County court dismissing application to set aside order — Court of Appeal allowing appeal against that decision — Leave of court required for issue of warrant after expiration of six-year period
The applicant held a secure tenancy of 5 Shelford Court, Warwick Grove, Clapton, London E5, granted to her by the council in 1982. Thereafter she allegedly failed to pay rent when due and a possession order was obtained by the council in September 1985. The order was suspended on the basis that she would pay the current rent due and arrears. However, the arrears continued to grow after the suspension order was made and a warrant for possession was issued in 1986. A district judge gave leave to issue a warrant for possession in January 1993.
Ord 26, r 5 of the County Court Rules provided: “(1) A warrant of execution shall not issue without the leave of the court where — (a) six years or more have elapsed since the date of the judgment or order …”. Following various applications to stay execution of the order, a new warrant was issued in May 1994. The applicant appealed against the dismissal of her application to set aside the execution of the warrant by the county court. A further warrant was issued in April 1995, which was executed and led to the applicant’s eviction. She argued that since the warrant had been issued long after the expiration of the six-year limitation period, it could only be valid if issued with leave of the court. Such leave had neither been applied for or granted.
Held The appeal was allowed.
1. Ord 26, r 5 recognized that a stale judgment for possession, as in the present case, should not normally be enforced without there having been consideration by the courts. For example, the position of the tenant could have altered radically. It was critical therefore that inquiry was made before the leave of the court was obtained.
2. Once a warrant was executed, relief could only be obtained if the applicant could show either that the possession order on which it was issued was itself set aside or the warrant was obtained by fraud or abuse of process or oppression: see Hammersmith & Fulham London Borough Council v Hill [1994] 2 EGLR 51.
3. If a warrant was improperly obtained without the leave of the court, it was an abuse of process since the grant of leave was much more than a mere formality.
4. The failure to obtain leave under Ord 26, r 5 was a clear breach of the mandatory requirement of that rule and was not a simple irregularity. Therefore it could not be saved by applying Ord 37, r 5 on non-compliance with rules.
Terence Gallivan (instructed by Harman, Garfinkel & Co) appeared for the applicant; David Dabbs (instructed by the solicitor to Hackney London Borough Council) appeared for the council.
