We previously set out a summary of the process for expediting an eviction by transferring the proceedings to the High Court so as to be able to obtain a writ of possession, and then use a private High Court Enforcement Officer (HCEO) firm to carry out the actual eviction (see here – http://publications.trowers.com/HLU_ Summer_2014/)
The High Court has, in Partridge v Gupta [2017] EWHC 2110 (QB), given further guidance on the procedure to follow, more particularly in respect of Civil Procedure Rule (CPR) 83.13(8)(a) namely, the nature of the notice to be given to a tenant and any other occupiers of the property/land. In essence, a landlord must seek permission from the High Court to be able to obtain a writ of possession. In order to do so the landlord must (save for where the defendant is a trespasser), satisfy the court "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".
What, therefore, is sufficient notice? Simply being aware of the making of the possession order or, being served with the application for permission to issue the writ of possession/ a notice of hearing if the application is listed for a hearing?
In this case Mr Gupta (the landlord) had pursued a possession claim against Mr Partridge (the tenant - who resided at the demised property with his wife and children) and obtained an outright possession order pursuant to section 21 of the Housing Act 1988. Mr Partridge had actively been involved in the possession proceedings, having defended the mandatory possession claim, and then (unsuccessfully) pursing an application for permission to appeal the making of the possession order. It could therefore be concluded that he was fully aware of the existence and implications of the possession order.
Mr Gupta subsequently instructed a HCEO to apply to transfer the proceedings to the High Court for enforcement purposes; which they did by way of an application in the County Court pursuant to Section 42(2) of the County Courts Act 1984 seeking permission to transfer the case. The application was supported by a witness statement confirming, amongst other things, that notice had been given in accordance with the CPR to the occupants of the intention to transfer execution to the High Court. Such notice informed of (1) an application for permission to transfer enforcement to the High Court (2) an application for permission to issue the writ (following permission to transfer) (3) of the impending eviction.
The County Court eventually gave permission and transferred the matter to the High Court, whereupon the HCEO issued, as they are permitted to do, a without notice application for a writ of possession. That application was also supported by a witness statement confirming "notice of this application has been given to each and every person in actual possession of the whole or part of the said land, namely Mr Michael Partridge, one Other and "The Occupiers" by notice in writing on 23 March 2016, sent by first class prepaid post and that no application for relief had been made by any such person".
The High Court judge, being satisfied the rules on notice had been complied with, gave permission to issue and seal a writ of possession. The writ was executed shortly thereafter and Mr Partridge and his family were evicted. No notice of the eviction was given.
Mr Partridge subsequently applied to the High Court to set aside the order giving permission to issue the writ, arguing that CPR 83.13(8)(a) required actual notice to be given of the hearing of the application for permission to issue the writ. His application was dismissed and he appealed.
His appeal to the High Court was also dismissed. It was held that the letter sent by the HCEO on 26 March 2016 (which informed of the application to transfer, to apply for a writ, and of the impending eviction) had been sufficient notice. Further, that "notice of proceedings" does not necessarily require either the service of a formal notice of application for permission or even a more informal intimation by letter or other communication that the application will be heard on a particular day or at a particular time. Either would be sufficient, but neither is required by the rule provided that notice is sufficient to enable the occupant(s) to apply for relief.
The High Court went on to give further key guidance by confirming:
- A sole occupant/ defendant who is the subject of the possession order and has full knowledge of the possession proceedings, should be provided with a reminder of the terms of the possession order and a request that possession is given up under the order. However, the decision confirms that, "if there was any doubt about whether this was sufficient [notice], it could be resolved by saying in the same communication that permission to apply for a writ of possession will be sought from the court in due course if possession is not delivered up and that the eviction will follow."
- If a sole occupant/ defendant did not play any part in the possession proceedings, it would nevertheless be sufficient notice if he/she is sent a letter or other suitable form of communication confirming the points set out at bullet point 1 above.
- If there are other occupants in the property (other than the defendant to the possession proceedings), they should be written to, either by name (if known) or addressed to "The Occupants", and informing of (1) the making of the possession order (2) an application for permission to transfer enforcement to the High Court (3) an application for permission to issue the writ (following permission to transfer) and (4) of the impending eviction.