Back in January 2014 we looked at the difficulties involved with applications to the County Court to transfer possession orders to the High Court for enforcement by High Court Enforcement Officers.
Recently there have been two cases which identify further difficulties with landlords applying to transfer proceedings to the High Court for enforcement, namely; Nicholas v Secretary of State (unreported, see Arden Chambers first summary here) and Birmingham City Council –v- Mr C and Mrs S Mondhlani [2015] EW Misc B41 (CC).
What are the benefits of transferring possession orders to the High Court?
In the case of Birmingham City Council –v- Mr C and Mrs S Mondhlani, Birmingham City Council raised three points to the District Judge setting out why they believed it was beneficial to transfer their possession orders to the High Court for enforcement. In summary they argued that:-
- It is likely that a writ of possession can be executed by a High Court Enforcement Officer more quickly than waiting for an appointment with the bailiff. This is due to long waiting lists and shortages of bailiffs. Birmingham City Council claimed you could be waiting up to 12 weeks for an appointment with the bailiff whereas a High Court Enforcement Officer could enforce the writ of possession potentially within days. By reducing the waiting time for an eviction date you can reduce the potential for lost revenue and can also re-let limited housing stock to tenants quicker.
- Writs of possession do not expire after 12 months unlike warrants for possession.
- A High Court Enforcement Officer, under instruction, can agree to postpone enforcement on terms and enforce the possession order straight away if those terms are breached. A bailiff can agree, under instruction, to postpone on terms but once the eviction is cancelled, if the terms are breached you have to apply for a new appointment with the bailiff.
Difficulties faced when transferring to the High Court for enforcement
In order to transfer a possession order against a tenant (not a trespasser) to the High Court a very specific procedure must be followed.
First, you must apply to the County Court for permission to transfer the proceedings to the High Court for enforcement (this application can be made without notice to the tenant).
Secondly, before the possession order can be enforced by a High Court Enforcement Officer you must apply to the High Court for a writ of possession. Appropriate notice must be given to the tenant advising that you are applying for the writ of possession.
Finally, the High Court must give permission to issue a writ of possession (see Part 83.13(2) Civil Procedure Rules 1998).
In the case of Nicholas v Secretary of State, the claimant obtained a writ of possession from the High Court without notice to the defendant. The first the defendant knew of the writ was when she awoke one morning to find High Court Enforcement Officers at her property having changed the locks!
The defendant applied to set the writ of possession aside stating that the writ should not have been granted by the High Court as part 83.13(8)(a) CPR had not been satisfied, namely:-
“(8) Permission referred to in paragraph (2) will not be granted unless it is shown—
(a) that every person in actual possession of the whole or any part of the land (‘the occupant’) has received such 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”
In summary, as the defendant had not been given notice of the proceedings, and an opportunity to apply to the court for relief, the writ of possession should not have been granted by the High Court and the writ of possession was set aside.
Similarly, in Birmingham City Council –v- Mr C and Mrs S Mondhlani, the claimant adopted a policy to submit applications to the County Court to transfer proceedings to the High Court for enforcement without notice to its tenants. When it came to requesting the writ of possession the claimant referred this externally and it was dealt with by a firm of solicitors. The solicitors applied for writs of possession incorrectly using form N239A which states at the bottom of the form, “This judgment or order has been sent to the High Court for enforcement by (Writ of Possession against trespassers) only”.
The court staff issued the writs, relying upon the N239A, without the permission of the High Court (CPR 83.13(2)) and without giving notice to the tenant (CPR 83.13(8)(a)).
What is sufficient notice?
On 15 January 2016, the Secretary of State in Nicholas v Secretary of State (unreported) again applied to the High Court, Chancery Division for a writ of possession. This time, notice was given to the defendant’s solicitors by e-mail and a copy of the application notice and supporting notice was served. The Secretary of State’s application was granted and a writ of possession was obtained. Whilst there is no prescribed mechanism for service, to adopt a ‘belt and braces’ approach, service of the application and notification in writing will be the safest way to ensure compliance.
Ultimately transferring possession proceedings to the High Court for enforcement could have real benefits but any application should be made with care and appropriate permission should be obtained and notice given or the eviction could be deemed unlawful.
If you require any assistance in transferring proceedings to the High Court for enforcement please do not hesitate to contact the Housing Management team on 029 2066 0589.
