We’ve all been there. Perhaps more frequently, litigants in person have been there (although hopefully not the same LiP over and over again). A warrant for possession is due to be executed the next day. It may even be the same day. The occupier has applied to a District Judge to suspend the warrant. The District Judge has, rightly or wrongly, dismissed that application. The occupier, understandably (even more so if the DJ fell into the “wrongly” category), wants to appeal that decision.
Now we know that such an appeal must be to a Circuit Judge. So far, so good. Many courts (and the number is growing) either have no CJ or only have one at limited times. So what do you do? Whaddya do hotshot?
For the London courts that fall into that category we appear to have an answer (h/t the Garden Court bulletin).The designated Civil Judge for London county courts, HHJ Mitchell, has issued Guidance for litigants seeking to appeal the refusal to suspend a warrant by a district judge when no circuit judge is available at that court, which can be downloaded here.
HHJ Mitchell says that:
“In the event that a circuit judge is not available at a particular court, arrangements have been put in place to ensure litigants have access to a circuit judge for the purposes of appealing the refusal to suspend a warrant of possession. If you wish to appeal from the particular court where the District Judge has refused to suspend the warrant of possession the court staff will inform you to which court you should address your appeal. The court where the application to suspend was heard on occasions would take the notice of appeal from the appellant. This practice will cease forthwith.” (emphasis in original)
HHJ Mitchell goes on to say that:
“The appellant will be directed to the appropriate court where the appeal will be heard and he must file the notice of appeal at that court and not at the court where the original application to suspend the warrant was heard. This is entirely in accordance with the rules whereas the previous practice was not. CPR 52.3(2) (b) provides that an application for permission to appeal may be made ‘to the appeal court in an appeal notice’. CPR 52.1(3)(b) defines appeal court as ‘the court to which an appeal is made’. The reality of the situation is the onus is on the appellant to act promptly and make his application to suspend in sufficient time to enable an appeal to be lodged if necessary. Appellants should be aware that until the notice is received at the appeal court no attempt will be made to contact the bailiff to request that he does not enforce the warrant until an appeal has been heard.” (emphasis in original)
Now, I wholeheartedly agree with the statement that the “reality of the situation is the onus is on the appellant to act promptly and make his application to suspend in sufficient time to enable an appeal to be lodged if necessary”, although I am sure that in many cases there are good and complex reasons why it is not quite so straightforward as all that.
Note though that HHJ Mitchell says that this is “entirely in accordance with the rules”. Well, easy fella, I’m not so sure that is right.
I can certainly see why, on the face of it, CPR 52.1 and 52.3 point towards that conclusion.
CPR 52.2, however, provides that “All parties to an appeal must comply with Practice Directions 52A to 52E”.
We need to turn to our old trusty friend, CPR Practice Direction 52B. No need to take that framed copy down off the wall, the current version is here. Hold your horses – there’s no need to click through as I’ll quote it for you (I’m too good to you).
First para 2.1:
“Appeals within a county court, appeals from a county court and appeals within the High Court to a judge of the High Court must be brought in the appropriate appeal centre and all other notices (including any respondent’s notice) and applications must be filed at that appeal centre. The venue for an appeal within a county court will be determined by the Designated Civil Judge and may be different from the appeal centre.”
But how do you know where the appeal centre is? HOW DO YOU KNOW. Oh, wait, here comes para 2.2 to save the day:
“The tables at the end of this Practice Direction set out the Appeal Centres for each circuit.”
Then at the end of the Practice Direction is that very table (here and then scroll down a bit). There are some county courts for which the appeal centre is a different court, e.g., Boston goes to Lincoln, Dudley goes to Walsall, while closer to civilisation Reading goes to Oxford. Unless there is an update that has not made it onto the website, it is quite clear that Bow, Brentford, Edmonton, Lambeth, Romford, Wandsworth, West London, and Woolwich, are their own appeal centres.
It follows from para 2.1 that it is at that court that the appellant’s notice must be filed (and I know this is right for one of those courts as I had to check recently, albeit not for a warrant suspension case). Now while the Designated Civil Judge can change the appeal venue (e.g. an appeal from West London could be heard in Central London as is, I think, normally the case, but it could, in theory, be heard at any other court), I don’t read the rules as allowing him to change the appeal centre, much less as allowing him to, in effect, provide that an appeal that is filed (or attempted to be filed) in accordance with CPR Practice Direction 52B should be rejected.
Now I am happy to be corrected on this*, so please let me know if I have got it wrong, but isn’t this Guidance mistaken? Does anyone know of any similar guidance for outside of London? What would happen in those, admittedly incredibly rare, cases where the DJ dismisses the application to suspend but grants permission to appeal?
I applaud the intention of this Guidance, but I am not sure that it achieves what it sets out to do. That would require a change to the Practice Direction.
* Obviously I will not be happy and will be even more curmudgeonly than normal, but I do think it is important that we know the right answer. Even if I then accept it with appallingly bad grace, as is my way.
I applaud your work on getting the detail.
Policy wise this is a change of practice not to be sought. The practice direction [guidance] should be pointed the other way in favour of lodging at the local county court as is presently the the case under the CPRPD52B as you point out.
The PD [guidance] also ignores the overriding objective to do justice. The overall policy is to facilitate access to the courts not hinder it in the way this does. The rules deliberately provide for possession proceedings of residential property to be in the local county court CPR 55. 3(1) + (2)
The PD [guidance] ignores the fact that this relates to the article 8 home.
if the circuit judge is a Public authority within the meaning of s149 and s150 and schedule 19 Equality Act, the PD [guidance] breaches the public sector duty in s149 Equality Act to the disabled who might find it difficult /more difficult to reach the neighbouring court than a person without that disability. The PD [guidance] is not a judicial function as I read the case law see R v Official Receiver ex parte Howard [2013] EWHC 1839 (Admin). Even if he is not a public authority and the duty not apply he ought to consider the the position would be if it had applied.
People should make applications in plenty of time, but I have found from many years experience as duty solicitor people may not find out until the last minute, most are not professionals used to dealing with courts, many are disabled thro’ depression or other MHC resulting in inability to deal with matters timeously [even tho’, due to the 2005 changes, they may be now be treated as not requiring a litigation friend], a significant number are illiterate or at best semi-literate.
Once againThank you for providing the chapter and verse to rebut the practice direction [guidance].