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.