Possession order — Warrant of possession — Amendment of order under slip rule — Effect of slip rule — Whether amendment under slip rule retroactive — Whether court had jurisdiction to set aside warrant of possession and its execution — Powers of court under section 100(2) of the Rent Act 1977 to stay or suspend execution of possession order or postpone the date of possession — Tangled history of litigation — Appeal by leasehold owner of property including the subject basement flat against county court judge’s decision in favour of occupier — There had been previous proceedings in the county court before a recorder who had made an order for possession against the occupier, suspended during prompt payment of rent and a monthly sum in respect of arrears — The county court judge had set aside a warrant of possession, which had been executed by bailiffs and as a result of which the occupier had been evicted — In taking this course the judge decided that the warrant of possession was premature, having been based incorrectly on the finding that the occupier had been in breach of the condition above mentioned in the possession order
the possession order as drafted was faulty on the face of it and had to be
amended under the slip rule in CCR, Ord 15, r5 — If the slip rule amendment
operated retroactively, the occupier had been in breach of the condition in the
possession order, but if it did not so operate, the warrant was premature — The
judge took the latter view and held that the warrant was premature — The Court
of Appeal held that the slip rule was retroactive in its effect, that the
condition had been breached and that the judge was therefore wrong in deciding
that the warrant was premature — There had been a question as to whether the
rent was payable in advance or in arrear, a point left unclear in the
recorder’s judgment — In either case the condition was breached, on the footing
that the slip rule amendment was retroactive, but if the rent was payable in
advance the breach took place at an earlier date than if it was payable in
arrear
of his judgment allowing the appeal May LJ determined the following matters:
(1) the fact that the slip rule amendment had been made without a formal
application and without notice to the other side was an irregularity, but not a
cause of invalidity; (2) it was clear from section 100(2) of the Rent Act 1977
that the judge had no jurisdiction to set aside the warrant of possession and
its execution, this course not being permissible after the execution of the
order; (3) the appellant should have given notice that he was going to apply in
person, and not through his solicitors, for the issue of the warrant of
possession, but this again was an irregularity, not a cause of invalidity —
Appeal allowed — Warrant of possession and its subsequent execution upheld —
Observations by May LJ on ‘fax notices of appeal’
The following
cases are referred to in this report.
Fleet
Mortgage & Investment Co Ltd v Lower
Maisonette, 46 Eaton Place Ltd [1972] 1 WLR 765; [1972] 2 All ER 737;
[1972] EGD 484; (1972) 222 EG 1755
R v Cripps, ex parte Muldoon [1984] QB 686; [1984] 3
WLR 53; [1984] 2 All ER 705; (1984) 82 LGR 439
This was an
appeal by Bass Chehab and Palaseas Ltd, first and second defendants, who were
leasehold owners of property which included the subject flat at 16 Nottingham
Place, London W1, against the decision of Judge Dobry QC at Bloomsbury County
Court in favour of the occupant of the flat, Shirli Scott-James. The previous
litigation was before Mr Recorder Barnes QC.
Jonathan
Ferris (instructed by Hughmans) appeared on behalf of the appellants; Andrew
Gordon-Saker (instructed by Martin Boston & Co) represented the respondent.
The third and fourth defendants, Dutyroy Ltd and Chaouki El-Imad respectively,
did not appear and were not represented.
Giving
judgment, MAY LJ said: In this appeal we are concerned with a basement flat at
16 Nottingham Place, London W1. The defendant/appellant holds the residue of
the headlease of the whole property.
The plaintiff
went into occupation of the basement flat under an oral arrangement between
herself and the defendant in May 1986. She was to pay £520 per month. A little
later she was presented with what was called ‘the licence’. Its precise terms
are immaterial. I will revert to it when I come to the decision of the learned
recorder in 1987.
On October 1
1986 the plaintiff was shut out of the basement flat by the defendant. She
swiftly obtained an ex parte injunction reinstating herself and went back on
October 3. Three days later she began proceedings for damages for breach of the
covenant for quiet enjoyment and trespass. On October 20 1986 the defendant
served his defence and counterclaim in which he contended that the plaintiff
was merely a licensee and not a tenant of the flat and he claimed substantial
arrears of rent.
On November 24
1986 the rent was fixed, pursuant to statute, at the fair rent of £165 per
month. It will be noted that the contractual rent was thus substantially
reduced.
One can then
move forward almost a year to October 23 1987, when the action was heard by Mr
Recorder Barnes QC. The order which he made after trial, as drawn up by the
county court, was clearly faulty but, save in one respect, the intent of the
learned recorder’s judgment was clear. In short, that was that the plaintiff
should have damages of £1,330. After that sum had been set off against the
arrears of rent, the net sum owing to the defendant was £980.98. In the
circumstances, particularly because the rent had not been paid for some
considerable time, the learned recorder thought it right to make an order for
possession. However, that he suspended for 28 days, that is to say until after
November 20 1987, and for so long thereafter as the rent for the flat was paid
promptly, together with £40 per month off the arrears. The respect in which the
learned recorder’s judgment was not clear was whether he was making any
finding, or had any intention to indicate, whether the rent payable to maintain
the suspension of the possession order which he had made was to be payable in
advance or in arrear. That is a point to which I shall return shortly.
On January 5
1988 the defendant went to the county court office to issue a warrant for
possession of the flat on the basis that the respondent had failed to comply
with the conditional order made by the recorder. On that occasion the court
itself saw that the order as drawn up on October 23 after the hearing by the
learned recorder was patently wrong on its face and on January 6 the order was
amended under the slip rule. To that I must also return hereafter.
On January 8
1988 a warrant for possession of the flat was issued. That was executed by
bailiffs on February 5 1988 and the plaintiff was evicted. A day later the
defendant granted a fresh tenancy to the third defendant in these proceedings.
On February 8
the plaintiff/respondent made an application to the county court to set aside
the warrant for possession and her eviction thereunder. That matter came before
His Honour Judge Dobry on February 10. After hearing argument and reading
affidavits, he gave judgment for the plaintiff on the basis that although there
were fresh arrears on September 24 1987, nevertheless the operation of the slip
rule in amending the faulty order of the learned recorder was not retroactive
in effect and that consequently the warrant for possession was premature.
On February 12
the defendant reapplied to the learned judge. That application was adjourned to
February 16. It seems to have been an application to ask the learned judge to
change his mind. It came on for hearing on February 16. After further argument
the learned judge refused to set aside the warrant; he issued an injunction
against the defendant, but stayed further proceedings for seven days or until
after the hearing of the appeal by this court.
The
defendant/appellant now appeals, asking that the orders made by His Honour
Judge Dobry should be set aside and that he should have a declaration that the
warrant of possession and the consequent eviction of the plaintiff were
regular.
There was also
in our list another appeal by the defendant against the order made by Mr
Recorder Barnes on October 23 1987, but, in the event, that we have adjourned.
It can be reinstated if at any time in the future it becomes necessary.
I now turn to
the power to amend orders, and in particular the order of October 23 1987, under
the county court slip rule. That is Ord 15, r 5 of the County Court Rules,
which is in these terms:
Clerical
mistakes in judgments or orders or errors arising therein from any accidental
slip or omission may at any time be corrected by the court.
The essential
question which then arises at this point in the appeal is whether the amendment
which was made on January 6 1988 was indeed retroactive in its operation; that
is to say, when the order of October 23 1987 was amended under Ord 15, r 5, was
the amended order effective from October 23 1987, when it was made, or from
January 6 1988, when it was amended?
In my judgment
the order was effective retroactively from October 23 1987. The purpose of the
slip rule in the county court, as in the High Court, is to amend mere clerical
mistakes and errors made in the drawing up of the order so as to reflect the
true decision of the court at the date when the order was originally made. The
effect of amendment under the slip rule was referred to recently in R v Cripps,
ex parte Muldoon [1984] 1 QB 686. It is unnecessary to go into the facts of
that case. At p 695 Sir John Donaldson MR said:
It is well
settled that any judge is fully entitled to reconsider and vary any decision at
any time before the order embodying or based upon that decision has been
perfected . . . although in some circumstances he may be under an obligation to
give the parties a further opportunity to be heard. At that stage no slip rule
power is needed. However, once the order has been perfected, the trial judge is
functus officio and, in his capacity as the trial judge, has no further power
to reconsider or vary his decisions whether under the authority of the slip
rule or otherwise. The slip rule power is not a power granted to the trial
judge as such. It is one of the powers of the court, exercisable by a judge of
the court who may or may not be the judge who was in fact the trial judge.
In the case
of the High Court, the slip rule power is contained in RSC, Ord 20, r 11.
The Master of
the Rolls then quotes that rule which is in very similar terms to the county
court provision, except that it provides that the clerical mistakes or errors
may be corrected by the court on motion or summons without an appeal; that is
to say, an application is needed to the court in order to have the power under
the slip rule exercised. The learned Master of the Rolls went on:
It is
surprisingly wide in its scope. Its primary purpose is akin to rectification,
namely to allow the court to amend a formal order which by accident or error
does not reflect the actual decision of the judge.
By the
reference in that passage to ‘rectification’, in my view the learned Master of
the Rolls was taking precisely the same view of the operation of the slip rule
as I have taken in this case. It is a power which enables the court to put
right retroactively clerical mistakes made when the order was drawn up.
In the course
of the argument we have had drawn to our attention potential difficulties
involved in taking that view. For instance, it was suggested that until the
order is amended neither party may know precisely what has been ordered. Those
occasions, I think, will be very few indeed. The parties would have been at the
hearing when the judge gave judgment and unless that was very convoluted or a
case further complicated, then they ought to know perfectly well what was the
precise order.
It was
submitted that orders drawn in error, containing clerical errors, are valid as
drawn until amended and in those circumstances one cannot say that the
amendment is retroactive. It may be that they are valid as drawn until amended,
but I do not think it follows that their validity means that their terms are
necessarily to remain in force until amended and that any subsequent amendment
cannot be made retroactively.
Reference was
also made to the possible intervention of the rights of third parties between
the order made and the order amended. In my view, any difficulties of that
nature, and indeed any difficulties of the nature to which I have already referred,
can be taken care of, and are normally taken care of, usually by consent or on
an application to the registrar.
The ‘court’
referred to in Ord 15, r 5 of the County Court Rules which is given
jurisdiction to apply the slip rule, is either the judge or the registrar of
the court by virtue of Ord 1, r 8(b) of the County Court Rules. This provides
that where any jurisdiction or power is conferred by the provision of the rules
on the court then
(b) if the jurisdiction or power is to be
exercised at any other stage of the proceedings
ie otherwise
than at trial
it may be
exercised either by the judge or by the registrar.
As I have
already indicated, in the High Court the express terms of RSC, Ord 20, r 11
require an application to amend under the slip rule to be made by motion or
summons. In my judgment, an amendment under the slip rule in the county court prima
facie requires an application under Ord 13, r 11(2) and on notice. Of
course, in most cases the matter can be simply dealt with, with the consent of
both sides, by telephoning the court; alternatively, a letter can be written by
both sides to the court and the matter dealt with informally in that way. If
there is a dispute or difficulty then, in my judgment, it is necessary to have
the matter formally dealt with on notice by an application to the county court
registrar. That was not done in the instant case.
One then has
to ask oneself what is the effect of a failure to make an application to the
registrar or to ask for the consent of the other side, on the amendment under
the slip rule? In that connection I turn
to the provisions of Ord 37, r 5(1) of the County Court Rules which, like its
fellow in RSC, Ord 2, r 1, provides:
Where there
has been a failure to comply with any requirement of these rules, the failure
shall be treated as an irregularity and shall not nullify the proceedings, but
the court may set aside the proceedings wholly or in part or exercise its
powers under these rules to allow any such amendments and to give any such
directions as it thinks fit.
Thus the
failure to apply to the registrar for the amendment under the slip rule on
January 6 1988 is to be taken merely as an irregularity and not as a matter
which nullifies the proceedings. The rule gives the court wide powers to deal
with the situation as is necessary in the interests of justice. Those powers
have to be exercised judicially. It is a discretion of the county court judge
or registrar. In the instant case, as I have already said, everyone knew what
the recorder had ordered on October 23. Indeed I am surprised that the
plaintiffs’ solicitors themselves had not had the order amended long before the
end of the year. Second, they were given notice on the telephone by the court
that the defendant was there seeking a warrant for possession.
In those
circumstances I think it would be wrong to set aside the amendment under the
slip rule which was made on January 6, despite the irregular nature of the
operation. It would be right, in my judgment, to treat the amendment as having
been made properly in all the circumstances. The order of January 6 as amended
may have to be further tidied, as appeared in the course of the argument, but
that we can deal with at the end of the appeal as necessary.
The next
question which arises is whether the rent payable after October 23 1987 was
payable in arrear or in advance, following the learned recorder’s judgment. As
I have said, there was nothing in that judgment or order, however badly drawn,
to indicate one way or the other. In my view, there was nothing in what took
place between the end of October and the beginning of January to set up any
practice upon which either party can rely as to when and how the rent was to be
paid.
Dealing with
the argument on which both sides relied upon the terms of a letter of November
25 1987, one arguing for rent in advance, the other arguing for rent in
arrears, in my judgment it is more consistent with rent being paid in arrear,
but it is not sufficient to amount to an agreement to vary any previous
contractual liability. I think it is clear that the original oral agreement was
that the rent should be payable in advance. That was borne out by the terms of
the written licence, so called, which the appellant got the respondent to sign
shortly after she had moved in. I agree that the learned recorder in his
judgment of October 23 found that that document was a sham, but that was only
in connection with the finding that the document, although it called itself a
licence, was in truth perpetuating or creating a tenancy.
In my view, in
all the circumstances that are before us, it is clear that the relevant
agreement between the parties, whenever it was precisely made, was that the
rent should be payable in advance. Nevertheless, I think there is material upon
which it would be right to find that there had thereafter, during the
continuance of the tenancy, been a consensual variation of the day of the month
upon which the rent was paid from the 2nd to the 24th in each month. Thus the
critical dates for the plaintiff to have been seen to have complied with the
recorder’s condition for the continued suspension of the possession order were
November 24 1987, December 24 1987 and so on into the New Year. If, as I have
found, the rent were payable in advance, then it is not disputed that the
respondent was in breach of the order made by the learned recorder as soon as
November 24. Whether the rent was payable in advance or arrear, she was in
breach of the order by December 24 1987. That those arrears, in either November
or December, were made good after the critical date and before January 8 1988
when the warrant for possession was issued is, in my judgment, neither here nor
there for this part of the argument, although it could have been material if
the plaintiff had made an application for further suspension of the order for
possession before the execution of the warrant.
I turn to the
next question which arises in this appeal, namely whether the warrant which was
issued on January 8 1988 was a good one. It was suggested that the respondent
should have had notice of the application made by the appellant in person on
January 5 or 6 1988. We were referred in that connection to Fleet Mortgage
& Investment Co Ltd v Lower Maisonette 46 Eaton Place Ltd [1972]
1 WLR 765 and in particular to a passage from the judgment of Pennycuick V-C at
p 770 where he said at G-H:
There is,
however, a much more serious difficulty in the way of the order, namely, that
no notice of the application to Master Dinwiddy for the order was given to the
tenants. Apart from any provisions in the Rules of the Supreme Court, it
appears to me too clear for words that natural justice required that notice of
this application should be given to the tenants. The effect of the consent
order was that Fleet, and Crown as its assignee, had an order for forfeiture
which was suspended conditionally upon the performance of certain conditions by
the tenants. Plainly, before an order giving leave to issue a writ of
possession was made, the tenants ought to have had the opportunity to come
before the court and establish, if they were able to do so, that they had
complied with the conditions of the order, so that the forfeiture had been
rendered inoperative.
Again, it is
unnecessary to go into the facts of that case in any detail, as they will
already have appeared from that quotation from the learned Vice-Chancellor’s
judgment. It was a case in which by consent a suspended order for possession
had been made, suspended on the compliance by the tenant with certain
conditions, much the same as the order in the instant appeal. However, that was
a case in the High Court and the relevant rule of the Supreme Court, Ord 46,
r2(1)(d), requires in the case of an order conditional upon the
compliance by a defendant with conditions, to have leave obtained for its
execution before that takes place. It was the application for that leave to
which the learned Vice-Chancellor was clearly referring in the passage from his
judgment which I have quoted. In the county court, however, the equivalent rule
is Ord 26, r 5(1) and, different from the High Court rule, there is no
equivalent to Ord 46, r2(1)(d) in the County Court Rules. Thus no leave
is required for the issue of a warrant of possession. This, in my judgment, is
made even clearer when one looks, first, at Ord 26, r 17(2) of the County Court
Rules, which provides that ‘The person desiring a warrant of possession to be
issued shall file a request in that behalf’, and then even clearer when one
looks at the form of that request in the standard form N325, which is to be
found on p 705 of the current edition of the County Court Practice.
There is no indication, either in the rule or in the form, that any notice or
leave to issue is required. The applicant has merely to certify that the
defendant is in default under the relevant judgment in the action. Of course,
if the defendant gets it wrong and certifies in error or untruthfully, then
clearly he will be at risk of further proceedings. But on that analysis and
approach, in my judgment the warrant issued and executed in the instant case
was good.
One then turns
to what is almost the last substantive point in this case. That is whether His
Honour Judge Dobry had jurisdiction to set aside the warrant issued and its
execution, as he did. The provision allowing suspension of a possession order
in the circumstances of the instant case is section 100(2) of the Rent Act
1977, which reads:
On the making
of an order for possession of such a dwelling-house, or at any time before the
execution of such an order (whether made before or after the commencement of
this Act) the court, subject to subsection (5) below [which is immaterial], may
—
(a) stay or suspend execution of the order, or
(b) postpone the date of possession
for such
period or periods as the court thinks fit.
In my opinion,
the express reference in that subsection to the phrase ‘or at any time before
the execution’ of the order for possession inferentially makes it clear that
the court has no jurisdiction to stay or suspend the order or to postpone the
date of possession after the execution of the order has taken place.
Consequently I am driven to the conclusion that the learned judge did not have
jurisdiction to set aside the issue and execution of the warrant of possession
in this case.
That deals
with the points raised on both sides on the appeal, except for the point taken
by the respondent plaintiff that when the appellant applied in person for the
issue of the warrant for possession, he had not given notice of change that he was
acting in person and not by solicitors as is required by Ord 50, r 5(3) of the
County Court Rules, which is in these terms:
Where a
party, after having sued or defended by a solicitor, intends to act in person,
he shall give notice of his intention to the proper officer and to every other
party to the proceedings, stating the address for service of the party giving
the notice.
In the light
of that rule I agree with the submission that was made, that quite clearly the
appellant in this case should have given notice of the fact that he was going
to apply in person for a warrant for possession. He did not do so. I am not
impressed by the arguments which were put before us that he had done so
informally. But in this connection we come back to the provisions of Ord 37, r
5(1) of the County Court Rules, which require any failure to comply with the
rules to be treated as an irregularity and not as giving rise to a nullity. In
the instant case I do not think that the respondent plaintiff was in any way
prejudiced by the failure of the appellant to give notice that he was acting in
person. Indeed one recalls that on that occasion the court telephoned the
respondent’s solicitors and told them what was happening. Let it not be
thought, however, that any failure to give notice of change either that one is
acting in person or that one has changed one’s solicitors is unimportant. There
is good reason why
a party in person or a firm of solicitors, or a new firm of solicitors, it
could result in prejudice if the appropriate notice is not given.
In the result,
however, for the reasons that I have indicated, I would allow this appeal from
the orders of the learned judge and uphold the warrant for possession obtained
on January 8 1988 and its subsequent execution. As I have said, the appeal
against the order of the learned recorder of October 23 1987 has not been
proceeded with on this occasion and must be adjourned generally.
The court will
deal with the question of the costs involved in these matters after judgments
have been given, but I would like to make this comment. It may be that
everybody was acting in a hurry in order to take steps on the one side to set
aside and on the other to maintain the orders of Judge Dobry of February 10 and
16 1988. Nevertheless, we started hearing this appeal yesterday morning and
with goodwill and efficiency on each side the papers put before this court
could have been substantially better prepared than they were. We have been
given at least three bundles that are not altogether consistent and indeed the
notice of appeal, unless it has been filed since yesterday, was only filed in
the court by the modern facility provided by fax machines. In my judgment, that
is not good enough and an undertaking was given by counsel that a proper notice
of appeal in the terms of the fax notice of appeal should be filed. It may be
that there is some provision or direction that a fax notice of appeal is
sufficient. It may be sufficient to start with, but it ought to be followed up
with the proper document. Nevertheless, subject to that comment, which has
nothing to do with the result of the appeal, for the reasons I have given I
would allow the appeal with the result indicated.
WAITE J agreed
and did not add anything.
The appeal
was allowed with costs, not to be enforced without leave of the court.
