Southern Housing v James Emmanuel (2025) EWCC 58
This was a first instance judgment, by District Judge Cridge at Bromley County Court, on the vexed issue of whether the court has the power to amend an injunction order for a tenant to give access to give the landlord the right to force entry to the property. We have been here before, in the county court appeal in Sovereign Housing Association Limited v Hall. Bristol County Court. 10 July 2024 (our note) and we will return to Sovereign below.
Southern had brought a Part 8 claim against its assured tenant, Mr Emmanuel for an injunction for access to carry out a gas safety inspection in compliance with the gas safety regulations. Access had not been given. (In fact, it appears that Mr Emmanuel may have been out of the country at this point and subsequently, but that is not relevant to the decision.) Southern were granted an injunction ordering Mr Emmanuel to permit access. About 6 weeks later, access having not been given, Southern applied to vary the injunction order
to include a clause permitting forced access so that it can inspect and service the gas installations, comply with its regulatory requirements and ensure the safety of the Defendants (sic) and residents. This is deemed the most appropriate next step, because enforcement of the breach by way of contempt proceedings does not ensure regulatory compliance and the Defendant’s safety (and that of others).
The court initially dismissed the application on the basis that the court had no power to make such an order. Southern applied to set aside that order
on the basis that the Claimant considers that the Court does have jurisdiction under CPR 70.2A to make the order sought for forced entry.
This is the judgment on that application. Mr Emmanuel was not represented and did not attend the hearing.
In a detailed judgment, the District Judge dismissed the application.
There was no common law right of forced access, or indeed power to order forced access, Southam v Smout (1964) 1 QB 308. No such right could be presumed without the express authority of Parliament, Morris v Beardmore (1981) AC 446.
There was no power of forced entry in Reg 36 of the Gas Safety (Installation and Use) Regulations 1998. Indeed, reg 36(10) appeared to contemplate siutations was accessible was not given.
There was nothing in the County Courts Act 1984 and Senior Courts Act 1981 that would give the County Court or High Court the power to make an order permitting forced entry.
A warrant of eviction allowed for forced entry only on the authority of the person entitled to possession under the possession order. That was not the case here.
The position on the Civil Procedure Rules generally must be take to follow re Grosvenor Hotel, London (No. 2) (1965) Ch 1210 which held that the rules committee did not have power to “alter the rules of evidence, or the ordinary law of the land.”. This was restated in regard to the CPR in Dunhill v Burgin (2014) UKSC 18 unless there was express legislative provision to do so.
CPR 70.2A provides
(1) In this rule ‘disobedient party’ means a party who has not complied with a mandatory order, an injunction or a judgment or order for the specific performance of a contract.
(2) Subject to paragraph (4), if a mandatory order, an injunction or a judgment or order for the specific performance of a contract is not complied with, the court may direct that the act required to be done may, so far as practicable, be done by another person, being—
(a) the party by whom the order or judgment was obtained; or
(b) some other person appointed by the court.
(…)
(4) Paragraph (2) is without prejudice to—
(a) the court’s powers under section 39 of the Senior Courts Act 1981; and
(b) the court’s powers to punish the disobedient party for contempt.
The purpose of Rule 70.2A was to assist in the enforcement of judgments and orders. See Regina v Tapecrown Ltd; Regina (Tapecrown Ltd) v Crown Court at Oxford (2018) EXCA Crim 1345.
It does not contain a power for the court to vary the original order, as the claimant seeks here. Instead, it enables the court to make a new order, appointing “another person” to perform the original “act required to be done”
As Treacy LJ identified in Tapecrown, it is the original order that enables the court to make the rule 70.2A order. In the present case, the original order was the Injunction requiring the defendant to “permit the Claimant to enter the Property.”
Under the Injunction the defendant’s act was this: allowing the claimant in. It is not capable of being “done by another person”, or at least not by ‘another person’ who is outside the defendant’s home without a key to the locked door.
What the claimant seeks here is not the same act performed by another, but a different act altogether: forced entry without the defendant’s consent. In my view that cannot be described as “the act required to be done”. That this is so is shown by the fact the claimant applies to vary the Injunction, rather than have me appoint someone else to let them into the defendant’s home. In my view there is no power under 70.2A to vary the original order.
Nor did CPR 25.1(1) and rule 3.1(2)(p) give such a power.
Rule 25.1(1)(c) provides that the court may make
an order for – (ii) the inspection of relevant property; (d) an order authorising a person to enter any land or building in the possession of a party to the proceedings for the purpose of carrying out an order under sub-paragraph (c).
But nothing there permitted forced entry. Nor did section 7 of the Civil Procedure Act 1997 on search orders for preservation of evidence.
Rule 3.1(2)(p) was simply not broad enough to confer a power to order forced entry.
But more broadly, the Civil Procedure Rules could not be take to grant new powers or affect substantive rights, except where expressly allowed by legislation. They could not be used to override the centuries old common law position on forced access.
Trespass into a home (including trespass to the lock if it is broken), is a tortious wrong and a possible criminal offence. Only Parliament or an established rule of law can authorise such an act. A procedural rule cannot. Simply because it is a court making the order does not somehow alter that position. After all, if the “King of England… and all his force dares not cross the threshold” into a citizen’s home, it is difficult to see how a judge can permit it in the absence of a law to that effect.
With regard to Sovereign Housing v Hall, the decision was not binding.
It is important to note the learned judge was not referred to any of the authorities or matters I have discussed above. As a result and with respect, I am unable to follow his decision. The act required by the injunction in the Sovereign Housing case, as here, was that the defendant permit access. Authorising the landlord to break in is not enforcement of the same act but creation of a different one.
While acknowledging that the available remedies were slow and expensive, an alternative was a matter for legislation, not for the courts to create.
Given the large number of these cases before the County Court and the difference in judicial approach, it may be desirable for a more senior court to provide authoritative guidance, one way or the other.
Application dismissed
Comment
I understand that permission was given for a leap frog appeal to the Court of Appeal, if Southern Housing choose to appeal. This would clearly be important, not only where decisions in the county court vary between judges, but as being on a significant point of law. It is unfortunate that, as with Sovereign, this was a case where the tenant was not represented and did not appear. One would have to hope that this could change on any appeal.
However, District Judge Cridge has done an admirable job in thoroughly testing the applicant’s case, something that the pressures on County Court judges generally work against. Whether the judgment ends up being upheld by the Court of Appeal or not, (and I, at least, am persuaded by it, the CPR cannot override the substantive law), it is to be applauded.
I am, I hasten to say, not just saying this because the judgment describes this site as
The well-regarded ‘Nearly Legal: Housing Law News and Comment’ website
Though that is very kind.
In the meantime, though this is, of course a non-binding County Court judgment, I would hope that it is at least considered by District and Circuit Judges dealing with applications for varying injunctions against a tenant to include forced entry by the landlord. These are usually applications with an unrepresented and non-attending defendant, but the applicant should still have to meet the hurdle of satisfying the Court that it has the power to make the order sought.
A lot of the landlord commentary elsewhere on this case is understandably focused on the practical impact of the decision, which is about contractual rights of access and not just gas safety checks as some seem to particularly focus on (not this site!)
Legally, though, the decision also talks to the limits of judicial power, the need for judges themselves to follow the law and not simply interpret it for the sake of one party’s practical convenience.
Really a judgment that bears reading and provides quite a fascinating review of the caselaw founding some of our more ancient rights, well before Article 8 appeared on the scene.
The judgment is well-reasoned and convincing, and it is impressive that, with the enormous pressures on civil District Judge lists, DJ Cridge didn’t take the easy way out of treating the Circuit Judge decision in Sovereign v Hall as binding.
The dicta in the Court of Appeal in Anton Piller [1975] EWCA Civ 12 (which is on Bailii) strongly support DJ Cridge’s conclusion.
Lord Denning MR said:
“Let me say at once that no Court in this land has any power to issue a search warrant to enter a man’s house… No constable or bailiff can knock at the door and demand entry so as to inspect papers or documents. The householder can shut the door in his face and say ‘Get out’. That was established in the leading case of Entick v. Carrington, in (1765) 2 Wilson. None of us would wish to whittle down that principle in the slightest.
But the Order sought in this case is not a search warrant. It does not authorise the Plaintiffs’ Solicitors or anyone else to enter the Defendant’s premises against his will. It does not authorise the breaking down of any doors, nor the slipping in by a back door, nor getting in by an open door or window. It only authorises entry and inspection by the permission of the Defendants. The Plaintiff must get the Defendant’s permission. But it does do this: It brings pressure on the Defendants to give permission. It does more. It actually orders him to give permission – with, I suppose, the result that if he does not give permission, he is guilty of contempt of Court.
This may seem to be a search warrant in disguise. But it was fully considered in the House of Lords 150 years ago and held to be legitimate. The case is East India Company v. Kynaston, (1821) 3 Bligh, 153. Lord Redesdale said at page 163:
‘The arguments urged for the Appellants at the Bar are founded upon the supposition that the Court has directed a forcible inspection. This is an erroneous view of the case. The order is to permit; and if the East India Company should refuse to permit inspection, they will be guilty of a contempt of the Court. … It is an order operating on the person requiring the defendants to permit inspection, not giving authority of force, or to break open the doors of their warehouse’.”
We can pontificate the legal delicacies but courts up and down the country on a daily basis are routinely giving Injunction Orders with a power of entry. It can only make basic common sense, for the safety of neighbouring unconnected properties and their occupants safety, that gas systems are safe and not dangerous. Otherwise, we might as well Repeal Sec 36 entirely ( or is Gas regulation safety only meant to apply to Landlords )
The landlord has remedies, an injunction and contempt application if breached, or a possession claim for breach of tenancy.
(Yes, s 36 does only apply to landlords. It is headed ‘Duties of landlords’).