Possession order against squatters–Part 1 of Order 26 of the County Court Rules–No power to suspend execution without the owner’s consent–County Court and High Court rules the same
This was an
appeal by Swordheath Properties Ltd from an order of Judge Llewellyn at
Bloomsbury and Marylebone County Court granting the company possession of the
ground, first and second floors of a house in St Anns Villas, Notting Hill,
London, pursuant to Part 1 of Order 26 of the County Court Rules, but
suspending its execution for 14 days.
David
Neuberger (instructed by Harold Stern & Co) appeared for the company. The
defendants did not appear and were not represented.
MEGAW LJ
reading the judgment of the court, said that Order 26 corresponded with Order
113 of the Rules of the Surpreme Court. Some of the defendants were present at
the originating application and the requirements of Order 26 were therefore
fulfilled. The judge asked counsel for the company whether he would agree to
execution of the order being suspended for 14 days. Counsel said that on his
instructions he could not. The judge nevertheless made an order for possession
not to be executed for 14 days.
The company
applied for the appeal to be expedited. The motion came before the Court of
Appeal on November 10. None of the defendants was present, but the court was
satisfied that they had been served with the notice. The court allowed the
appeal and deleted the suspension. It had been held in McPhail v Persons,
Names Unknown [1973] Ch 447 that the High Court had no power under Order
113, in the absence of the applicant’s consent, to suspend an order for
possession. That decision was binding on their lordships regarding Order 113.
It was plain that there was no distinction between that order and Order 26
relevant to the question before the court. In the absence of consent, the judge
had no power or discretion to suspend execution. Hence the appeal had to be
allowed.
The court was
satisfied that the judge had not deliberately made an order which he knew to be
outside his powers when he made it. Nor did he deliberately misconduct himself
in respect of an appeal.
The court had
been told that in a number of county courts suspensions had been granted in
Order 26 orders without the applicants’ consent. As the order at present stood,
that was not within the courts’ powers. It would seem that in not a few cases
consent was given by applicants to a short suspension. It might be that those
responsible for considering such matters might wish to consider whether some
power, possibly a strictly limited power, of suspension should be made
available, despite the absence of consent. It might be, however, that there
were practical reasons to the contrary. The court expressed no view.
