Practice and procedure – Possession – Enforcement – Claimant employing defendant as school caretaker – Right to live in bungalow ending on termination of employment – Claimant seeking possession of bungalow – Defendant applying to set aside writ of possession and reinstate defendant into bungalow – Whether claimant giving adequate notice of possession proceedings prior to application to issue writ of possession – Whether writ of possession validly issued despite defaults – Application dismissed
The claimant county council employed the defendant as a resident caretaker at a school. He and his family lived in a bungalow tied to the employment. On 12 June 2015 his employment was terminated. The employment contract specified that the right to live in the bungalow would end on termination of employment.
In September 2015 the claimant commenced possession proceedings and the High Court made a possession order. On 11 July 2017, the defendant applied for permission to appeal to the Court of Appeal and asked the claimant whether they would be enforcing the order. On 18 July, they replied that they would not, because the 28 days for the possession order had not yet expired. On 16 August 2017, the Court of Appeal granted permission and the defendant again asked the claimant about enforcement. The claimant did not reply. However, on 29 September 2017, it applied for permission to enforce the order by way of writ in the High Court under CPR 83.13. The claimant did not serve the application on the defendant or inform the High Court about the extant appeal. A master granted permission on the basis that notice of the application had been given.
The appeal was dismissed by the Court of Appeal but the defendant applied for funding to appeal to the Supreme Court and the claimant agreed not to enforce. In December 2018 the defendant applied for permission to appeal which was refused. On 30 July 2019, the claimant informed the defendant that it was minded to initiate eviction proceedings without further notice. On 14 January 2020 the writ was issued and the defendant and his family were evicted by a High Court enforcement officer on 3 February 2020.
The defendant applied to set aside the order giving permission to issue the writ of possession, to set aside the writ of possession and to reinstate the defendant and his household into the bungalow.
Held: The application was dismissed.
(1) The only correspondence from the claimant was that it would not enforce within the 28-day period given in the possession order. It was silent as to the period beyond that, and it was clear that the defendant understood that there was no agreement not to enforce beyond then. The master should have been told that there was an extant appeal at the time of permission to issue. But it did not follow either that permission to issue would have been refused or that the permission should necessarily be set aside as a result of that failure. If the appeal had been raised, the master might have given permission to issue conditional upon the appeal having concluded. The mischief intended to be avoided was enforcement during an appeal which was later successful. That did not occur. Therefore, the permission or writ would not be set aside on that ground: Ahmed v Mahmood [2013] EWHC 3176 considered.
(2) It was clear that there was no requirement under CPR 83.13(8) that the application itself be served on the occupants of a property. There was no requirement for the application or the time it was to be heard to be sent to the defendant. What was required was evidence that “every person in actual possession of the whole or any part of the land (“the occupant”) had received such notice of the proceedings as appeared to the court sufficient to enable the occupant to apply to the court for any relief to which the occupant might be entitled. The “proceedings” in that context were the possession proceedings culminating in a possession order which was to be enforced. In this case, in September 2017 the defendant was aware of the possession order and that it might be enforced. Without some warning or request that possession be given up, mere knowledge of the possession order was not sufficient notice of the proceedings. Given the ongoing appeals, some notice of an intent to enforce was required; there was no requirement to give notice that there was an application to enforce in progress, just of an intent to enforce. Therefore, prior to the application for permission, adequate notice had not been given to the defendant.
However, by subsequent correspondence in July 2019 adequate notice under CPR 83.13 was given. It clearly indicated that if possession was not given up by the end of July, there was an intent to enforce. That correspondence was to the defendant’s solicitor rather than the defendant but there was no suggestion that the defendant was not aware of the content of the correspondence and it would have been adequate notice to the defendant and all members of his family. The defendant had ample time between the July 2019 correspondence and the writ being issued in January 2020 to make an application for a stay of enforcement: Gupta v Partridge [2017] EWHC 2110 (QB); [2017] PLSCS 169 and Brooker & Wilson v Sandi St Paul [2017] EWHC 3510 applied.
(3) There was no arguable case that any enforcement should be stayed based on the claimant’s public sector equality duty (PSED) under the Equality Act 2010, even taking into account the low threshold required. The local housing authority had a duty to house the defendant and his family adequately. The statement that the defendant’s wife had suffered anxiety subsequent to the eviction and that the youngest child had severe anxiety did not raise a credible argument that, even if the claimant had failed to consider relevant matters, it would have made a difference to an application for a stay. Even if his wife and youngest child’s illnesses amounted to a relevant disability, the claimant would inevitably have decided to enforce as it did.
(4) In all the circumstances, the failure of notice and the failure to disclose the fact of the appeal together did not mean that the court should not exercise its discretion to correct an error of procedure. The court would order under CPR 3.10 that the writ of possession was validly issued despite the defaults.
Andrew Lane (instructed by Hertfordshire County Council) appeared for the claimant; Toby Vanhegan (instructed by Arkrights Solicitors, of Watford) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of Hertfordshire County Council v Davies
