Execution of warrant for possession – Application for reinstatement and further suspension of warrant – Judge granting application – Statutory jurisdiction to suspend ceasing upon execution of warrant – Appeal allowed
When Mr and Mrs B were married on July 6 1990, they moved in to 20 Carlyle Road, Slough (the property), which Mr B had inherited from his grandfather. In April 1991 Mr B charged the property to the plaintiff’s predecssor in title as security for a loan of £45,000. Arrears accrued and an order for possession was made in December 1993. A warrant for possession was issued and suspended by order of the county court on eight occasions. The warrant for possession was executed on May 28 1998. The defendant’s wife stated that she had known nothing of the possession proceedings until the property was repossessed. By application dated June 4 1998, heard the following day, Mrs B applied for reinstatement of the property and further suspension of the warrant. The district judge ordered that: (1) a warrant of restitution be granted on payment of £4,000 in cleared funds by 4pm on June 11 1998; and (2) subject to such payment being made the possession warrant be suspended on payment of the balance of the arrears at the rate of £400 per month, together with the current instalments on due dates. The plaintiff appealed ex parte to the county court judge, seeking leave to dispense with service to Mrs B. The judge concluded that it would be unfair to allow the appeal on an ex parte basis and so granted the application to abridge time for service, but dismissed the appeal. The plaintiff appealed contending, inter alia, that the district judge had had no jurisdiction to make the order since the warrant had already been executed. Counsel for Mrs B sought leave to put in an affidavit to support a future application to the county court, for her to be added to the proceedings in order for her to appeal against the possession order.
Held The appeal was allowed.
1. The judges’ decisions had been based, wrongly, upon the premise that the statutory jurisdiction, under section 36 of the Administration of Justice Act 1970, to stay or suspend the execution of an order for possession subsisted even after the warrant had been executed. It was clear from the terms of the section, which stated that the court had power to suspend “at any time before the execution” of the warrant for possession, that once a warrant had been executed, the stautory jurisdiction ceased to be exercisable. Once the warrant had been executed, the court could only act under its inherent jurisdiction if the judgment on which the warrant was based was itself set aside (see Governors of the Peabody Donation Fund v Hay (1986) 19 HLR 145) or the execution of the warrant amounted to an abuse of process or oppression: see Hammersmith and Fulham London Borough Council v Hill [1994] 2 EGLR 51.
2. The contention that on the evidence before the court Mrs B arguably had a beneficial interest in the property, and should be allowed to be added as defendant to the proceedings, fell on two counts. First, she had not yet made an application to be added and, second, the evidence was far from cogent regarding any beneficial interest on her part.
David Mayall (instructed by Charles Caplin & Co) appeared on behalf of the appellant; Francis Moraes (instructed by Barrett & Thomson, of Slough) appeared on behalf of the respondent.
