Sovereign Housing Association Limited v Hall. Bristol County Court. 10 July 2024 (Unreported. A copy of the judgment is here.)

This was a County Court appeal from a first instance decision by a District Judge that the Court did not have jurisdiction under Civil Procedure Rule 25.1 to make an order allowing Sovereign to force entry to their tenant’s, Ms Hall, property.

Sovereign had obtained an injunction for access against Ms Hall to inspect the property. Ms Hall had not complied. Sovereign had applied for an order allowing them to force access (peacefully) on the basis that this fell under CPR 25.1 by a combination of 25.1(c), the inspection of relevant property or the detention, custody or preservation of relevant property and then under (d):

“An order authorising a person to enter any land or building in the possession of a party to the proceedings for the purposes of carrying out an order under subparagraph (c).“

The District Judge thought an application for committal was the right approach and that the Court did not have jurisdiction under CPR 25.1.

Sovereign appealed that decision and additionally argued that the Court had such a power under CPR 3.1(2)(m), the court’s general power of case management, and CPR 70.2A, dealing with orders and a failure to comply with orders.

On appeal, the Circuit Judge addressed the CPR 25.1 point, noting that the notes to the White Book said

“Where the court grants an interim remedy in the form of any order suggested at 25.1(1)(c), the court (this would normally be at the same judicial level as that granting the primary interim remedy) may grant a further interim remedy in the form of an order authorising a person to enter any land or building in the possession of a party to the proceedings for the purposes of carrying out the first order (r.25.1(1)(d).” and  “An order granting a remedy of this type may be made only by a judge (Practice Direction “Allocation of Cases to Levels of Judiciary”, paragraph 2.1, see Paragraph 2BPD.1 above.”

The problem was that there was no paragraph 2.1 in the Practice Direction, and that paragraph 2 did not refer to orders under CPR 25.1(c) or (d) at all. The appeal could not be allowed on this ground without further argument and consideration.

However, the Circuit Judge was persuaded that an order for forced access could be made under CPR 70.2A.

The defendant was a ‘disobedient party’ as having not complied with a mandatory order and/or a person who is the subject of an order for specific performance of a contract – the tenancy agreement.

The court is therefore empowered to order that the claimant carry out the act required to be done, namely the granting of access to the property in question for the purposes of inspection. The fact that access is gained by unconventional means is nothing to the point in my judgment. The door belongs to the claimant and so any damage done to the door or the frame would not be to the defendant’s property (although I am told that access can be gained without damaging either the door or the frame). In fact I doubt that damaging the defendant’s property would be a bar to the making of an order under the paragraph, but it weighs in the balance in considering whether to exercise the court’s discretion.

I note, too, that part 70.2A(4) to which paragraph 2 is expressly made subject (somewhat curiously because it is not a restricting provision), makes it clear that the powers conferred by paragraph 2 are without prejudice to the court’s powers under s39 of the Senior Courts Act 1981 (the power to execute instruments) and the court’s powers to punish the disobedient party for contempt. This overcomes any perceived difficulties that proceedings for contempt are the only, or even the preferred, way of dealing with a disobedient party in the instant circumstances which, I am told, District Judges often say is the case.

The appeal was allowed and order made.