Arrears of rent – Landlord obtaining suspended possession order – Bailiffs evicting tenant under warrant for possession – Application to set aside execution of warrant – Tenant claiming misapprehension as to requirements to avoid eviction – Whether manifestly unfair not to reinstate tenant – Application refused – Appeal dismissed
In 1977 the appellant moved into 51 Burge Court, Cirencester. Subsequently, arrears of rent built up and in August 1999 a suspended possession order was made. Under the terms of the order, the appellant was required to pay £660 to the respondent housing association by instalments of £2.60 per week, in addition to the current rent of £51 per week. Previous suspended possession orders in respect of the tenancy had been made in 1978, 1981 and 1993.
By March 2000, when the arrears were £1,200, the respondent applied to the court for a warrant of possession. The county court bailiff notified the appellant on 14 March that a warrant had been issued for possession of the property and that, unless she vacated before 30 March, possession would be taken. The appellant contacted the Citizens Advice Bureau and also claimed to have spoken to the respondent. The respondent subsequently wrote to the appellant informing her that the eviction would take place on 30 March 2000. Before that date, the appellant paid £876 off her arrears and £80 court costs.
On 30 March 2000 the appellant was evicted under the warrant of possession. She applied to set aside the execution of the warrant, contending that, at the time of her eviction, she was under the misapprehension that she had done all that was necessary to avoid execution. It was submitted that, but for the appellant’s misapprehension, she would have applied to the court before eviction, with every expectation of success for a stay or suspension of the warrant under section 85(2) of the Housing Act 1985. It was further submitted that it was manifestly unfair not to reinstate her and that such unfairness should be avoided: (i) consistent with the approach followed in Leicester City Council v Aldwinckle (1991) 24 HLR 40; (ii) under the court’s inherent jurisdiction; or, alternatively, (iii) by the application of section 76 of the County Court Act 1984, incorporating into the County Court Rules the requirement in the High Court rules that the tenant be put on notice of an application for a warrant of possession. In April 2000 the county court refused her application. The appellant appealed.
Held: The appeal was dismissed.
1. A possession warrant obtained and executed without fault on anyone’s part could not properly be set aside as oppressive within the Aldwinckle principle. There could not be oppression without the unfair use of court procedures, and something more than mere use of the eviction process was required for this. The mere misunderstanding by a tenant of her position was not sufficient. In relevant previous cases, the tenants had been found in one way or another to have been misled or obstructed, even if inadvertently, in the exercise of their rights, and that was why the courts had held the execution warrants to be oppressive: see Hammersmith and Fulham London Borough Council v Hill [1994] 2 EGLR 51, Camden London Borough Council v Akanni (1997) 29 HLR 845 and Barking and Dagenham London Borough Council v Saint (1999) 31 HLR 620.
2. Although the court had an inherent power to prevent abuse of its procedures, it was precisely that jurisdiction, and no other, that the court was exercising when applying the Aldwinckle principle. The court’s inherent power was to prevent the oppressive use of its own processes; it was not to act so as to cure all perceived injustices. Accordingly, it could not set aside the eviction merely on the footing that the appellant misunderstood her position and thereby lost her opportunity to have the warrant stayed.
3. Although the argument that a requirement for notice must, in all cases, be introduced into the County Court Rules, whether by way of natural justice and/or section 76 of the 1984 Act, was to be rejected, there might be cases when the landlord could properly be held to have acted oppressively if the tenant were never to receive any notice whatever of his impending eviction. However, in the instant case this was plainly not the case.
Stephen Knafler (instructed by Bobbetts Mackan, of Bristol) appeared for the appellants; Timothy Fancourt (instructed by Burges Salmon, of Bristol) appeared for the respondent.
Thomas Elliott, barrister
