A couple of recent cases have highlighted the issues involved in transferring County Court possession orders to the High Court for enforcement by High Court Enforcement Officers.
This is done by landlords, by and large, to bypass the wait for a county court bailiff appointment, but also has the effect (not unwelcomed by some landlords, including perhaps Birmingham City Council) of enabling eviction without the tenant being provided with notice of date of eviction.
But, where the possession order is against a tenant, rather than against trespassers, there are some very particular steps that have to happen.
First, once a possession order has been granted in the County Court, the claimant must apply to the County Court for an order transferring the proceedings to the High Court for the purposes of enforcement (Section 42(2) County Courts Act 1984). This can be an application without notice.
However, before any High Court enforcement (at least against tenants) a High Court writ must be issued, CPR 83.13. And the issue of such a writ requires the permission of the High Court, CPR 83.13(2).
Enter Nicholas v Secretary of State for Defence, High Court, Chancery Division, August 24, 2015 (no transcript apparently available. Arden Chambers note here). The MoD, having got a possession order after extended proceedings up to and including the Court of Appeal, obtained a High Court writ of possession without notice to Ms N and this was then enforced. The first Ms N knew was when she woke up to find the High Court Enforcers at her door, changing the locks.
Ms N applied to set aside the writ. This was successful on the basis of CPR 83.13(8)(a):
(8) Permission referred to in paragraph (2) will not be granted unless it is shown—
(a) that every person in actual possession of the whole or any part of the land (‘the occupant’) has received such notice of the proceedings as appears to the court sufficient to enable the occupant to apply to the court for any relief to which the occupant may be entitled; and
(b) (…)
So permission under CPR 83.13(2) should not have been granted.
And exactly the same issue arose in Birmingham City Council v Mondhlani County Court at Birmingham 30 October 2015 (now on Bailli as Birmingham City Council v Mondhlani [2015] EW Misc B41 (CC) (06 November 2015)). This is (the case referenced here). Birmingham had been obtaining permission to enforce in the High Court by without notice applications to the County Court (as they can). But Birmingham then outsourced the obtaining of a writ to an external High Court Enforcement agent and their external solicitors.
These external firms then applied for a writ using form N293A and writ form 66. The N293A has at the bottom the words “This judgment or order has been sent to the High Court for enforcement by (Writ of Possession against trespassers) only”. Permission of the High Court is not required for the issue of a Writ against trespassers (CPR 83.13(3)). But of course, even after a possession order, a secure tenant (or an assured, or assured shorthold tenant) is not a trespasser. Form N293A should not have been used.
It seems that the High Court office, in reliance on the N293A, had simply been issuing Writs. This should not have happened, because permission from a Judge was required – 83.13(2) – and the judge must be satisfied that notice has been given to the occupant(s) in actual possession – 83.13(8).
So, this is one to keep an eye open for. Enforcement of a possession order by the High Court Enforcement Officers via a writ of possession must involve notice of an application for a writ to the tenant/occupant sufficient to enable the occupant to apply to the court for relief, save only where the enforcement is against trespassers. If that did not happen, there is a very strong argument that the eviction was unlawful.