A sorry tale

Webb and another v Marcos and another CA, July 8, 2011 (lawtel and westlaw notes only) looks like a sad tale, as well as being one of those (hopefully rare) cases where a possession order was enforced by committal.

M was the occupier of a property which had been bought by W. Possession proceedings were issued and W obtained an order for possession. M was refused permission to appeal. When M failed to leave the property, a judge attached a penal notice to the possession order. M still refused to leave and was sentenced to 14 days imprisonment (suspended to allow social services to investigate). M then appealed the committal order, with a hearing being listed before the CA a few days later. M asked for additional time to lodge supporting documentation and that request was rejected on the basis that M should attend the appeal hearing and make the application in person.

The appeal came on for hearing and neither M nor W were present. The appeal was dismissed; there was nothing before the Court to support the appeal, nor was there any basis for criticising the decision of the judge.

 

 

About J

J is a barrister in London. He loves service charges and all things leasehold law related. He also likes beating rogue landlords and mortgage companies.
Posted in Housing law - All, Possession and tagged , , .

5 Comments

  1. Who asks for a penal notice to be attached to a possession order? Would have been interesting if this point had been argued so that the Court of Appeal could have commented properly on this.

  2. That’s really weird. I’ve heard of people being committed for physically impeding the bailiffs on their warrant (when the Police aren’t called to assist, that is) but I’ve never heard about this before.

    There must be more to this, surely.

  3. I haven’t access to lawtel/westlaw.

    It has been done before. There was a similar case about 5 or 6 years ago. This was used in homelessness against LAs to say once court order they should treat as at least threatened until order expire thereafter very definitely homeless and not wait for bailiffs appointment.

    I would hope that there was a particular reason that persuaded the judge in Webb v Marcos to do so.
    The HC setup is different again of course.

    I think the case was Tuohy v Trustee in Bankruptcy [2002] EWCA Civ 423

    Tohy is the authority that confirmed that one cannot issue a warrant of possession until after the time given in the order has expired.

  4. On going to Westlaw I couldn’t find a case called Webb v Marcos. On searching just on the name Webb I did find the case concerned listed as Webb v Markos. A search on just the name Markos threw up some other cases relating to a boundary dispute between a Mrs Milicia Markos and her neighbour, a Mr Alan Goodfellow.

    This must surely be the selfsame Mrs Markos as in the Webb v Markos case. In the Goodfellow v Markos case it is mentioned that there was a penal notice attached to a possession order.

    From the judgement of Lord Justice Chadwick in Goodfellow v Markos [2005] EWCA Civ 1407:-

    “On 14 January 2004 Mr Alan Goodfellow obtained a charging order over property known as 44 Glenbervie Drive, Leigh-on-Sea, Essex, the home of Mrs Milica Markos. The charging order was made in order to secure costs which Mrs Markos had been ordered to pay in litigation brought by her against Mr Goodfellow in relation to a disputed boundary. The history of that litigation is set out in a judgment of Peter Gibson LJ delivered in this court on 15 April 2003 ([2003] EWCA Civ 622) . I need not rehearse it in any detail. It is sufficient to say that, although Mrs Markos established her claim for trespass in the action, she was awarded nominal damages only and she was ordered to pay Mr Goodfellow’s costs of the trial and of the subsequent appeal. Those costs were subsequently assessed in the sum of £8,919″….

    “On 12 October 2004, District Judge Dudley, sitting at Southend County Court, made an order for the sale of the property subject to the charging order” …

    “An appointment for the delivery up of possession to the bailiff was fixed for 14 June 2005. The attempt to enforce the warrant was unsuccessful. …”

    “The bailiff having failed to enforce the warrant of possession on 14 June 2005, Mr Goodfellow’s solicitors returned to the County Court on that afternoon. The court re-issued the order of 1 April 2005, endorsed with a penal notice. ”

    [NB see also the further trip to the Court of Appeal in Feb 2007 – [2007] EWCA Civ 254 (http://www.bailii.org/ew/cases/EWCA/Civ/2007/254.html)]

    I assume that Mr Webb must be the person who bought Mrs Markos’s house when it was sold under the Order for sale. The case analysis of Webb v Markos on Westlaw mentions that “W were now the legal owners”.

    So, Mrs Markos was not an awkward ex-tenant, she was an awkward owner-occupier. But yes, it is a sad case. One can’t help but feel sorry for litigants-in-person who get chewed up by the legal machine. Even if they are at least partly responsible for the misfortunes that happen to them. Mrs Markos sued over a fence that had been moved by three inches and she ends up losing her home and being committed to prison for contempt of court. But let’s not forget that she did win her trespass case.

  5. Help ! – I,m in the same boat. I was granted a possession order at county court on a non-residential, non-commercial garage/storage premises – the tenant didn,t leave and the subsequent bailiffs warrant could not be executed because of a locked large gate erected by the tenant barred the bailiffs accesss to the premises. So far I,ve done all the legal stuff myself as I can,t afford a solicitor but now I,m stuck to know how to proceed – so to see that these solicitors returned to the court and had the possession order re issued immediately is a lifeline. How to do this ?? What form ect ? Any help gratefully received. Regards – Ian McMain

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