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The powers of the appellate court

By J

Admiral Taverns (Cygnet) Ltd v Daniel and another [2008] EWHC 1688 (QB), and [2008] EWCA Civ 1501.

We seem to have missed this important case when it was at High Court level. Sorry about that. An appeal against the High Court judgment has just been dismissed by the Court of Appeal and is now available online here.

The defendants were occupiers of residential property owned by the claimant. The defendants occupied under a “caretaking” agreement with the claimant. The claimant subsequently sought to bring that agreement to an end and issued possession proceedings. The defendants appears to have defended the case (or indicated an intention to defend) on the basis that they had or had been promised a lease of the property.

An order for possession was made by HHJ Gibson, sitting at the Lambeth county court. The second defendant then lodged an appellants notice at the High Court, together with a request that the warrant be stayed pending determination of the application for permission to appeal.

Mr Justice Teare granted the stay on the papers. The claimant sought to set aside that order. They contended that s.89, Housing Act 1980 precluded all courts, including the appellate court, from delaying the date for possession by more than six weeks. Teare J initially accepted this argument (apparently at an ex parte hearing) and the defendant applied to set aside that decision and reinstate the stay.

Section 89, Housing Act 1980 provides that:

(1) Where a court makes an order for possession of any land in a case not falling within subsection (2) below, the giving up of possession shall not be postponed (whether by order or any variation, suspension or stay of execution) to a date later than fourteen days after the making of the order, unless it appears to the court that exceptional hardship would be caused by requiring possession to be given up by that date; and shall not in any event be postponed to a date later than six weeks after the making of the order.

(2) The restrictions in subsection (1) above do not apply [to mortgage possession cases, forfeiture, possession orders where there is any reasonableness test etc…]

In effect, s.89 is aimed at cases where there is no security of tenure.

The defendant argued that s.89 had no application to an appellate court, which could postpone, suspend or stay any possession order for as long as was appropriate. The restrictions were only on the powers of the first instance court.

Teare J accepted the argument for the defendant and restored the original stay. He was heavily influenced by the risk of an “odd and unjust” result if there was no power in the appellate court to stay a warrant or otherwise prevent execution of a possession order. If an appellate court formed the view that there was merit in an appeal, it would be required to hear and determine the appeal within 14 days (or, perhaps, 6 weeks in a case of exceptional hardship). This was wholly unrealisitic, given the demands on appellate courts.

The claimant then appealed to the Court of Appeal. That appeal was dismissed on November 25, 2008. It appears that the Court of Appeal was not persuaded by the arguments that had impressed Teare J. However, the result was unaffected. This was because the appellate court retained an inherent jurisdiction to stay, postpone or suspend execution of a possession order pending an apparently meritorious appeal. It would take very clear words before a statute would be presumed to have ousted that inherent jurisdiction.

So, there we have it. In every NTQ case (which, I suspect, is likely to be the most common factual situation facing housing lawyers in which s.89 comes into play), the appellate court has jurisdiction to suspend a warrant pending an appeal. Whether or not this inherent jurisdiction applies to the trial court when faced with an application for permission to appeal was left open.

J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.

1 Comment

  1. Niki Goss

    This case was argued on the basis of an appellate court and didnt have to considert position of the lower court.

    The principle is that Parliament didn’t intend to cover a stay pending the conclusion of either an application to set aside a PO or an appeal where stay granted by the lower court either.`
    s89 was about the common law discretion in the court as to when to deliver possession & not about a stay pursuant to the adjectival law surrounding the court processes of appeal etc

    paragraphs 8 & 12 of the judgment are worth considering
    8 …The Defendant’s construction enables an appellate court which has either granted permission to appeal from an order for possession or is still considering such permission to stay the order of possession until the appeal has been determined or until the application for permission to appeal has been determined. In an appropriate case that will be a sensible course to take because if the appeal succeeds the successful appellant will not, in the meantime, have lost possession of the premises. Conversely, the Claimant’s construction does not enable the appellate court to take that course, save in very limited circumstances. Thus a tenant will be compelled to give up possession. If the property is then sold a successful appeal by the tenant will not result in the restoration of possession of the premises to him. This would appear to be an odd and unjust result. It is unlikely that such a result would have been the intention of Parliament.
    12. I also note the long title to tha80 describes the Act as one “to restrict the discretion of the court in making orders for possession of land”. This does not suggest that it was Parliament’s intention to restrict the discretion of an appellate court, with jurisdiction to hear and determine an appeal from the court making the order for possession, when ordering a stay of execution of the order for possession pending such appeal.


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