Partridge v Gupta (2017) EWHC 2110 (QB)
Those who have been readers of this blog for a while may recall our campaign about evictions by High Court Sheriffs where the writs were (wrongly) obtained as an administrative act by using form N293A. This culminated in a practice note by Senior Master Fontaine, stressing that – for tenants, if not for trespassers or mortgage possessions – any application for a writ had to comply with CPR 83.13.
CPR 83.13(8) (a) requires sufficient notice to be given to all occupants of the premises to enable them to apply to the court for any relief to which they may be entitled.
What does ‘sufficient notice’ mean? This appeal is on that issue. The appellant, Mr Partridge, had applied to set aside a writ of possession on the basis of lack of sufficient notice. That was dismissed by Master Yoxall and Mr P appealed. Having previously been in person, Mr P was ably represented through the Bar Pro Bono unit (Justin Bates and Amy Just).
Mr P had had an AST. Defended proceedings following a s.21 notice had resulted in a possession order. Mr P sought permission to appeal, and then oral renewal of that application.
In the meantime
‘The Burlington Group’ (an HCEO) was instructed by the Respondent to undertake enforcement of the order and that company issued an application in Watford County Court seeking permission to transfer the case to the High Court for enforcement purposes pursuant to section 42(2) of the County Courts Act 1984. The application was said to be “so that a Writ of Possession may be issued in the High Court of Justice.” A director of the company, Mr Jonathan Chatfield, said this in the Application Notice:
“We believe that all occupants of the property are fully aware of the Order made on the 12th February 2016 but they have not cooperated to date and have ignored the Order in question. In light of this they are unlikely to vacate unless required to do so.
We are seeking this leave to enforce in the High Court as we are informed by the Creditor that they wish to mitigate their loss and accelerate the eviction process. We have provided Notice to the occupants of the intention to transfer execution to the High Court and believe that all of the occupants are aware of the proceedings in accordance with the CPR.
Having provided Notice we do not feel that the Defendant will be prejudiced by enforcing in the High Court and we will provide further Notice of Eviction if so ordered by this Court.”
The Notice to the occupants to which Mr Chatfield referred was contained two letters (sent by first-class post) in identical terms addressed respectively to “The Occupiers” and “Mr Michael Partridge and 1 other” as follows:
“We are writing to formally provide you with notice of the following:
1. Our application to Watford County Court for leave to transfer the enforcement of the Order to the High Court under Section 42 of the County Court Act 1984. This allows a High Court Enforcement Officer to obtain possession of the property rather than a County Court Bailiff, and
2. Our application in accordance with Civil Procedure Rules 83.13(8) to the Queen’s Bench Division of the High Court for permission to issue a Writ of Possession following permission from the County Court under Section 42 of the County Court Act 1984 as stated above.
We strongly recommended that you obtain independent legal advice but please do contact this office if you have any questions regarding the impending eviction.”
The s.42 application was stayed pending the outcome of permission to appeal the possession order. Once that was refused the s.42 application was granted.
Thereafter the writ was issued.
So, did this letter (or letters) amount to ‘sufficient notice’?
Mr P argued that CPR 83.13 effectively meant that an application to the High Court for writ must be an on notice application, that being a general rule, such that CPR 83.3 (permission for writ against trespassers where possession order is over 3 months old) contained a specific exception. This further served the policy purpose that “those who are to be evicted should be given notice of the time and date of when they are to be evicted.”
However, the Hon Foskett J disagreed. Notice of application for a writ would not in itself be notice of a date of eviction. CPR 83.13 was couched in much more general and permissive terms, and if the application was intended to be on notice, the easiest course would have been to specify that.
While Rose J in Secretary of State for Defence v Nicholas  EWHC 4064 (Ch) (our note) had set aside a writ at least partly on the basis that notice of the application under CPR 83.13(8)(a) had not been given, Nicholson could be distinguished from the present case as
in this case, in addition to the knowledge the Appellant gained from his active participation in all proceedings up to the conclusion of the hearing before HHJ Harris, there was at the very least an intimation of an intention to apply for permission to issue a writ of possession in the letter of 23 March 2016. Furthermore, as indicated above, the final paragraph of that letter heralded the “impending eviction” (see paragraph 15 above). In Nicholas no such warning was given.
Appeal dismissed. Sufficient notice had been given.
Foskett J then proceeds to set out what might amount to sufficient notice under CPR83.13 in various situations (at 63-67)
- The test for deciding whether permission to issue a writ of possession should be granted following an order for possession, whether there is one occupant or more than one occupant of the relevant premises, is whether “every person in actual possession of the whole or any part of the land … 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.”
- The “notice of the proceedings” referred to does not necessarily require either the service of the formal notice of application for permission or even a more informal intimation by letter or other communication that the application will be heard on a particular day or at a particular time. Either would be sufficient, but neither is required by the rule provided that the notice is sufficient to enable the occupant(s) to apply for relief.
- Where there is a sole occupant who is the subject of the possession order and he/she has full knowledge of the possession proceedings, a reminder of the terms of the court order and a request that possession is given up under the order is, generally speaking, sufficient notice within the rule. This is consistent with the practice referred to repeatedly in the White Book that where “the defendant is the only person in possession of the premises the claimant must give the defendant notice of the judgment or order, and call upon that person to give up possession under the judgment or order” (see paragraphs 32 and 35 above). If there was any doubt about whether this is sufficient, it could be resolved by saying in the same communication that permission to apply for a writ of possession will be sought from the court in due course if possession is not delivered up and that eviction will follow.
- Where the sole defendant has played no part in the possession proceedings, a letter or other suitable form of communication containing all the above information should ensure that sufficient notice within the rule has been given.
- Where there are occupants other than the defendant to the possession proceedings known to occupy the property, then a letter addressed to them (if known by name) or to “the occupants” (if the names are not known) in similar terms to that referred to in paragraph 15 above is required, it being necessary to include reference to the intention to apply for permission to issue a writ of possession if possession is not delivered up by the date prescribed in the order and that eviction will follow.
This is, perhaps, a very loose interpretation of ‘sufficient notice to enable the occupant to apply for relief’, not least because the view at 65 would mean that the occupant might be wholly unaware that an application to the High Court was to be made, presenting serious practical problems for any application for relief.
However, the judgment does at least provide some guidance for what Masters should be looking for as evidence of sufficient notice on any writ application.