I’ve just been reading Ahmed and others v Mahmood and others [2013] EWHC 3176 (QB) (Lawtel only I think) and I’m totally confused. If anyone who was in the case can help, I’d be very grateful.
The defendants lived in a property owned by the claimants. The claimants issued a claim for possession. The defendants unsuccessfully applied to adjourn the trial. The claimants then obtained a possession order. There were outstanding appeals against both the refusal of the adjournment and the possession order.
Notwithstanding those appeals, the case was transferred to the High Court for enforcement. The claimants then filled in the form asking for a High Court Enforcement Officer to execute a writ of possession. In that application, they incorrectly certified that there were no applications pending (note, there is no suggestion in the judgment of dishonesty). The writ was executed. The property was then re-let. The defendants applied to set aside the execution of the writ.
Now, pausing here for a moment:
(a) I’m clear on the law on setting aside a warrant/writ in these circumstances. You either need to set aside the underlying possession order (Governors of the Peabody Donation Fund v Hay [1987] 19 H.L.R. 145, CA) or set aside the warrant on the basis of fraud, abuse of process or oppression: Leicester CC v Aldwinkle [1991] 24 H.L.R. 40, CA (amongst other authorities);
(b) but setting aside is discretionary, and a warrant/writ won’t be set aside if there is no practical purpose (Southwark LBC v Sarfo (2000) 32 HLR 60 – building demolished so no point setting aside, even where oppression proven);
(c) if you set aside a warrant once a property has been re-let, you’ll create a concurrent tenancy (Wordsley Brewery Co v Halford [1903] 90 L.T. 89 CA) and, because the original tenants (here, the defendants) can no longer satisfy the tenant condition, they’ll lose their security of tenure (see the discussion in this case);
(d) all of which is very unattractive in terms of a set-aside (to say nothing of the position of the new tenants, who don’t seem to have been represented in this mess).
So, it seems to me that the best thing to do is not to set aside the warrant/writ, given the prejudice to third parties, but to see if there is a claim in unlawful eviction (or similar torts) by the original tenant against the landlord.
This is not, however, what the High Court did (although it seems Lang J was concerned about my (c), above and it doesn’t look like anyone explained (b)-(d) to her). She granted the application and set aside the writ as the false statement in the application for the writ amounted to an abuse of process.
As to my (c), she accepted an undertaking by the defendants not to seek to re-enter the property until all matters had been resolved.
I’d welcome any thoughts or comments on both the case and my analysis!