Sit up and take notice! Partridge v Gupta

 

SIT UP AND TAKE NOTICE

by Ben Maltz and Zachary Kell

September 2017

Introduction

  1. On 15 August 2017, Foskett J. handed down judgment in Partridge v Gupta [2017] EWHC 2110 (QB) – a case that centred on the interpretation of CPR r.83.13(8), which prescribes the applicable procedural requirements when a claimant wishes to enforce a possession in the High Court by execution of a writ of possession. The key issue for consideration was what constituted sufficient notice for the purposes of r.83.13(8)(a). Whilst Foskett J. regarded the facts of Mr Partridge’s appeal as being little more than academic[1] he recognised that the case raised a point of practical and procedural importance, and that a fully reasoned decision would be of assistance in other cases (para [7]).

Legal background

  1. It is the frustrating reality that claimants who obtain possession orders in the County Court are routinely faced with a lengthy wait of many weeks, if not months, for a bailiff’s appointment to execute the warrant of possession. It is therefore commonplace for private land owners to seek transfer their claim to the High Court where enforcement may be executed by one of the companies that are licensed as High Court Enforcement Officers (“HCEOs”).
  1. In order to enforce in the High Court a claimant must follow a two-stage process namely:
  1. Apply to the County Court for an order transferring up to the High Court under s.42 of the County Courts Act 1984; and, once transferred,
  1. Apply in the High Court for permission to issue a writ of possession under CPR r.83.13(8).
  1. Permission to issue a writ will not be granted unless, pursuant to r.83.13(8)(a):

[…] 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

  1. The wording of r.83.13(8)(a) has remained unchanged from the original wording of the corresponding rule under the former Rules of the Supreme Court (“the RSC”), namely Order 45, r.3(3)(a). A long line of authorities have disputed under both versions of the rule what constitutes sufficient notice for these purposes.
  1. First, in Fleet Mortgage Limited v Lower Maisonette 46 Eaton Place Ltd [1972] 1 W.L.R. 765, Ch D., landlords had obtained leave to issue a writ of possession on the ground of breach of conditions, subject to the performance of which forfeiture had been ordered by consent. The tenants had only learned of the application, and the subsequent writ, when they were locked out of their property. When considering, inter alia, Order 45, r.3(3)(a) Pennycuick V-C held that it would be both a breach of natural justice, and the procedural rules to not provide tenants with notice of an application.
  1. In Leicester City Council v Aldwinckle (1992) 24 H.L.R. 40, CA, Leggatt L.J. found that in the context of a warrant of possession granted under the County Court Rules, where permission to issue a warrant is not required, he could not write in the missing notice requirement – natural justice did not stretch this far.
  1. In Jephson Homes Housing Association v Moisejeys & Another (2001) 33 H.L.R. 54, CA, it was held that to succeed in having an executed warrant set aside on grounds of oppression, a tenant would have to establish some wrongdoing on the part of the court or the landlord such that the tenant was misled or obstructed in the pursuance of his rights. Simon Brown L.J. made an obiter comment in Moisejeys at [44] that the position under RSC O.45 r.3(3) regarding the notice required was “somewhat obscure”. He acknowledged that Fleet Mortgage had construed the rule as requiring notice of the landlord’s application following the breach of a conditional/suspended possession order. However, at [50] he accepted that, as in the case of Aldwinckle, there will be cases where no notice is given to the tenant.
  1. Most recently, Secretary of State for Defence v Nicholas [2015] EWHC 4064 (Ch) involved the ex-wife of an Air Force officer who, following their divorce and the former husband vacating the premises, faced possession proceedings. An order was granted, an appeal to the Court of Appeal on ECHR Art. 8 grounds was unsuccessful, and she was awaiting permission for a second appeal to the Supreme Court. The second appeal did not seem to come to the attention of the landlord, and therefore an application for permission to issue a writ of possession was made, and granted without notice to Ms Nicholas. In the box on the application notice where it asked who should be served with the application, the landlord wrote: “Not applicable: CPR 83.13(4)”. Rose J. stated she could not accept that that was procedurally correct because, irrespective of the landlord’s belief that Ms Nicholas was a trespasser, it had not been determined yet by the outstanding appeal.
  1. In considering the notice required pursuant to r.83.13(8)(a), Rose J. held, at [14]:

[…] in the [White Book] notes at 83.13(9), it states that the effect of CPR rule 13.8(a) is that notice of an application for a writ of possession must be given to every occupant of the property and the court will not grant permission without the occupants having an opportunity to apply to the court for relief and it cites the case of Leicester City Council v Aldwinkle The Times April 5 1991 CA in support of that proposition. Miss Knight also drew my attention to Jephson Homes Housing Association v Moisejeys & Another [2001] 33 HLR 54, which also refers to notice being given of the application for a writ of possession. In particular in paragraph 50 of that judgment

I note also that Rule 83.13(2) itself envisages that there will be a judgment or order for the giving of possession of the land, which is enforced by the writ of possession. So on this basis also I consider that notice should have been given to Miss Nicholas and those representing her and that the order made should be set aside on that basis too.

Factual background

  1. Mr Partridge occupied a detached house in Watford under an Assured Shorthold Tenancy. His landlord, Mr Gupta, issued possession proceedings in the County Court at Watford pursuant to section 21 of the Housing Act 1988. Mr Partridge was unsuccessful in defending those proceedings, and appealed. Meanwhile, Mr Gupta instructed HCEO’s to transfer the claim up to the High Court and apply for permission to issue the writ and then proceed to execution. Before H.H.J. Harris in the County Court at Watford, permission to appeal the possession order was refused, and the court ordered that proceedings be transferred up to the High Court.
  1. The HCEO made a without notice application to the QB Master for permission to issue a writ of possession. The order was granted on 8 July 2016. The writ was then executed on 12 July 2016. Mr Partridge applied for an order setting aside the writ of possession, which was refused by Master Yoxall on 1 August 2016. In the instant appeal Mr. Partridge sought to overturn the order of Master Yoxall dismissing his application to set aside the executed writ of possession.
  1. Mr Partridge’s key point of dispute was that the HCEO, acting as Mr Gupta’s agent, had not provided sufficient notice of the proceedings under r.83.13(8)(a). The HCEO had written to Mr Partridge and separately to “The Occupiers”, on 23 March 2016 to give notice of (i) the application to transfer the proceedings to the High Court under s.42 of the County Courts Act 1984, and (ii) the application for permission to issue a writ of possession in accordance with r.83.13(8). It was common ground between the parties that these letters could not amount to formal notice of the application under r.83.13(8), which was not actually issued until 8 July 2016, more than 3 months after the letters had been sent. Mr Partridge argued that compliance with r.83.13(8) required formal notice of the sealed application for permission to issue the writ, and relied upon Rose J.’s judgment in Nicholas as authority for this principle.

The Judgment

  1. Foskett J. distinguished Nicholas on the basis that no warning whatsoever of the impending eviction had been given in that case, whereas Mr Partridge had the knowledge gained from his active participation in all proceedings after the possession order had been granted, and at the very least the intimated intention to apply for the writ in the letter from the HCEO on 23 March 2017 (para [56]).
  1. In any event, it seemed clear that, in Nicholas, Rose J. relied on the notes in the White Book to r.83.13 in substantiating that part of her judgment, without having been taken to the underlying authorities. Foskett J. expressed doubt that Aldwinckle, which was (and still is) cited in the relevant notes, is authority for the proposition that a failure to give notice of the application for a writ of possession can of itself be a reason for setting aside the writ after execution, or that all occupants must be served with the sealed application notice (para [57]).
  1. The applicable principles are set out at paragraphs [63] to [67] of Foskett J.’s judgment, as follows:
  1. the test 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 (para [63]);
  1. notice of the proceedings does not necessarily require the service of the formal application notice 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 (para [64]);
  • where there is a sole occupant who is the subject of the possession order and they have 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. If there is 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 (para [65]);
  1. 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 (para [66]); and
  1. 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 [the letter sent by Mr Gupta’s HCEO] 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 (para [67]).

Conclusion

  1. This is a welcome judgment that clarifies a point of procedural compliance that has been uncertain for some time. Foskett J.’s reading of r.83.13(8) establishes a clear and logical interpretation of notice requirements applicable to applications for permission to issue a High Court writ of possession. As argued The wording of (8)(a) ultimately looks at whether notice is sufficient to the court, intimating the court’s discretion.
  1. In practice, securing a bailiff’s appointment in the County Court can be fraught with undue delay. For landlords who need to expedite enforcement, for example where the tenant is threatening damage to the property or where a pending sale with vacant possession is nearing completion, transferring up to the High Court for enforcement should prove a quicker process. The potentially unintended consequences of Nicholas, which had the effect of delaying this route, have been addressed in Partridge.
  1. Nevertheless, unless and until the Court of Appeal grapples with the issue there is no definitive authority on the point. Until then the principles set out in Foskett J.’s judgment provide the necessary guidance for landlords and High Court Enforcement Officers alike.

Ben Maltz is a barrister at Five Paper and appeared for Mr. Gupta. Zachary Kell is a pupil barrister at Five Paper.

[1] Mr Partridge not having pursued an order for re-admission to the subject premises, and any likely damages claim being nominal at best.

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