There have been a number of reported decisions in the last few months on committals for failure to comply with a possession order. The most recent, Lawrence Dubash v Bank of Ireland (Court of Appeal, unreported, July 27, 2015), involved Mr Dubash, an alleged tenant of a mortgagor. In the mortgagee’s possession claim against the mortgagor, he applied unsuccessfully to stay the warrant of possession, was then evicted, but re-entered. He then issued a claim to prevent the mortgagee recovering possession which was dismissed, and he was again evicted. He broke back in for the second time.
The history of non-compliance seems extraordinary, but such repeated breaches of a possession order are far from unknown. Advisers of mortgagees and landlords need to know what is in their armoury against such persistent occupiers.
What do you do when you are faced with such a persistent occupier? A refusal to obey a court order, including an order for possession, is a contempt. However, there are a number of formal requirements for a committal which are not present on a possession order obtained in a normal case when repeated re-entry is not expected. Under CPR 81.9, there must be a penal notice on the order. That’s not something the court normally adds when it makes orders in a possession list. Under CPR 81.5, unless the court orders otherwise, the order must be served before the time for giving possession required in the order; that’s not something that can be guaranteed if the court is serving the order, and especially if the time period is relatively short. CPR 81.6 requires personal service unless that is dispensed with.
What committal thus often first requires is an application for the possession order to be reissued with a penal notice, and with a later date for possession on it, to allow for personal service within Part 81. In a case like Dubash, where the occupier was not an original party, then the application will require his or her joinder too. The process sounds simple, but behind such an application is considerable case law in which judges have worried about the possibility of reissuing an order of this kind to allow for later committal.
First, adding a penal notice: the court wrestled with the possibility of reissuing a possession order with a penal notice in Tuohy v Bell  EWCA Civ 423. At paragraphs 39 and 59 Neuberger J considered this possible, under the rules for committal before Part 81 was brought in, though his comment is obiter. Tuohy is an extremely useful case in this kind of situation, because it surveys what ought to be done in a case like this, though it leaves an impression that it was difficult to see the path through the procedural rules to the committal which seemed just given the repeated refusal to comply with the possession order in that case.
Secondly, the court’s ability to extend the time for possession to allow for personal service follows from the general jurisdiction to extend time for compliance with a final order (Omega Engineering Inc v Omega S A  EWHC 1482(Ch)).
Finally, it is possible to join a party after judgment if it is in the interests of justice to do so, as it would be in a case such as Dubash (Humber Work Boats Ltd v Owners of the Selby Paradigm  EWHC 1804 and para 24 of Prescott v Dunwoody Sports Marketing  EWCA Civ 461). That it is possible in a possession claim to some extent is explained by the enforceability of a possession order. When the bailiffs are enforcing a possession order they can evict anyone in the premises at the time. Any person wishing to contend that the possession order should not be enforced against them can apply to court for an order preventing enforcement or for an order that they be permitted to re-enter if the eviction has already occurred (see para 6 of the decision of Lord Rodger in Secretary of State for the Environment v Meier  UKSC 11). Such an application can become a trial of the Claimant’s right to possession against the occupier. In Dubash, however, by the time of the application for his joinder, the court had already decided he had no right of possession good against the Claimant because his application to suspend the possession order’s enforcement was dismissed, as was his claim.
Is committal the right route against a persistent occupier?