The Civil Procedure Rule Committee (CPRC) has launched a consultation on the enforcement of possession orders and the alignment of procedures in the county court and high court.
Most readers of this post will be familiar with the process for enforcement of possession orders both in the County Court and High Court both from personal experience and possibly because of popular television programmes. Those that have had some personal experience may also recall how lengthy the process can be, especially where the County Court bailiff is instructed.
The CPRC is aware that the enforcement process for possession orders is unsatisfactory and ought to be reformed. However, before any changes are implemented views are sought from users and potential users of the civil justice system in England and Wales, and those affected by or engaged in the process of possession enforcement. In particular, views are sought from landlords and tenants, the legal profession, enforcement agents, advisors and representatives. The consultation closes on 2 May.
At present there are 2 differing systems of enforcement, one in the County Court and one in the High Court. In the County Court the process is administrative, which means no judge is involved when the enforcement order is issued. The cost of the process is limited but there are substantial delays and the tenant is given notice of the date and time of the eviction. In the High Court the process is dealt with by a judge (Master) and very little or no notification is given to the tenant. The cost of the process is much higher but there is usually less delay.
It is the differences between the two systems and the weaknesses of each, particularly in respect of cost, delay and notification to tenants which have been noted in a number of historic and recent judicial decisions. It is this that is leading to the desire to review and harmonise the 2 systems.
The proposals that the CPRC is therefore seeking views on are:
- That the High Court adopts a similar approach to the County Court and provides notice of the time and date of any eviction.
- If the above is not adopted whether there should a clearer set of Rules or a Practice Direction to set out the need to justify transfer from the County Court to the High Court.
- If the High Court does start providing notification should the need to obtain judicial permission to enforce an order be removed?
- Whether there should be a specific provision that:
a. applications for transfer should be made on notice to the tenant and/or
b. Subsequent applications concerning the possession order be made in the County Court rather than High Court and/or
c. costs should be limited to the County Court level
- Where a possession order has been applied for, whether the applicant should certify that all occupants have had sufficient notice of the proceedings and not just the tenant.
The CPRC recognises that there is a balance to be struck here. A balance between a landlord who may be owed several month’s unpaid rent and may also be in financial difficulties as a result of the rent arrears and the tenant who ought to know if and when they are going to be evicted so that they can prepare for it or arrange representation in any court proceedings.
The CPRC is therefore proposing to align the 2 procedures and ensure that notification is given to any tenant and/or occupier so that they may take any necessary action. The procedure will remain under the control of the court which means judges may on any application modify or dispense with any requirement for and length of notice in appropriate cases. The issue of 2 processes and whether there will be a need to transfer from the County Court to the High Court where they have been aligned will of course also be addressed.
This is likely to be an important consultation. One of the key complaints for landlords is the time it takes to secure actual possession once a possession order has been obtained. A clearer and simpler process in achieving this would be a starting point in reducing these delays.
Published 26 April 2019