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.