Writs and warrants for possession: what right to notice?

Common questions with uncommon answers

  • Date: 03 Nov, 2015
  • In: Articles
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One of the areas of procedure that I think about less often, as a property barrister, is writs and warrants of possession. I often attend court to get a possession order, but I don’t often have any involvement thereafter. The answer to the question I address in this article thus came as a surprise to me, when I first came up against it.

The procedure for the issuing of writs and warrants has been brought from the RCS and the CCR into the CPR, and is in Part 83. Writs of possession are a means of enforcing a possession order in the High Court (with the help of sheriff’s officers). If you enforce in the County Court (which is likely if your order was made there) you need a warrant of possession, and the help of the county court bailiffs.

What is odd is that the notice requirements for the issue of a writ and a warrant are different. It’s an important point, because many defendants subject to possession orders can ask the court to suspend or postpone enforcement of a possession order under statutory powers, under the Housing Acts for example. Once the order is enforced, and the defendant has been evicted, then the court has no such jurisdiction unless the possession order can be set aside, or the writ or warrant was obtained by fraud, abuse of process, or oppression. Unlike High Court writs, in the County Court, which makes most of the possession orders with execution capable of suspension, no notice of an application for a warrant is required. The right to seek suspension might easily be lost.

CPR 83.13(2) requires the permission of the court for the issue of a writ, except in the case of a possession claim against trespassers with issue of the writ within three months of the order (83.13(3)) or certain mortgage possession claims (83.13(6)). Permission will not be granted unless it is shown that every person in actual possession has received sufficient notice “of the proceedings as appears to the court sufficient to enable the occupant to apply to the court for any relief to which the occupant may be entitled”. That repeats the wording of sc45.3(3)(a) of the RSC, and Fleet Mortgage & Investment Co Ltd v Lower Mainsonette 46 Eaton Place Ltd [1972] 1 WLR 765 says that natural justice and the RSC required that the tenant be given notice of the application for the issue of the writ.

No notice is required of an application for a warrant for possession, however, unless the court orders otherwise. That is clear from CPR 83.26(2)(a) and (12). The difference repeats the CCR, and has been dealt with in case law. In Leicester City Council v Aldwinckle (1992) 24 HLR 40 the difference in the requirements between the High Court and County Court was noted by the Court of Appeal but the court said that “the court cannot write in the missing requirement”.

The court then suggested that “the Supreme Court Rules Committee ... be invited to consider whether the County Court Rules should not be brought into line with the corresponding Rules of the Supreme Court ...” I assume the Rules Committee has considered the matter since 1992, and this judicial plea is not unheard. Certainly the Committee had the opportunity when Part 83 was written, but there has been no change.

 

I recently noticed something else about the incorporation of the RSC and CCR into the CPR. It used to be possible under the RSC sc45.8 to get an order from the court, where a defendant had failed to perform a mandatory injunction against him, permitting someone else to do what was ordered, at the defendant’s cost. This looks like a way to deal with an injunction to allow entry into property, for example. The difficulty with injunctions is that the threat of prison does not always lead to performance of the action sought.  The Civil Procedure (Amendment) Rules 2014/407, which introduced Part 83, did retain sc45.8. It is now CPR 70.2A. Can this be used to get a permitted forced entry on non-compliance with an injunction requiring entry to be given? That is a question for another article intended soon.