In Partridge v Gupta the High Court held that the obligation to obtain permission to issue a writ of possession does not require that the tenant be given notice of the actual application for permission. What is required is that “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(s) to apply to the court for any relief to which they may be entitled.“
Where a possession order is made in the county court, the case may be transferred to the High Court for enforcement by a High Court Enforcement Officer (‘HCEO’), previously referred to as a ‘Sheriff’. Generally, permission of the court is required to issue a High Court writ and permission is usually only granted if it is shown that every person in possession of the land has “received such notice of the proceedings as appears to the court sufficient to enable [him] to apply to the court for any relief to which [he] may be entitled.” In Secretary of State for Defence v Nicholas, it was held that “notice of the proceedings” meant that an occupier was entitled to notice of the application for permission to issue the writ.
In this case, the tenant, Mr Partridge occupied a property under an Assured Shorthold Tenancy with his family. The landlord, Mr Gupta obtained a possession order under s.21, and instructed a HCEO to apply for the case to be transferred to the High Court for enforcement and execution. The transfer application was successful and included confirmation that the tenant and his family had been sent letters by first class post advising them of the transfer and recommending that they seek legal advice. Shortly thereafter the HCEO executed the writ of possession.
Mr Partridge then applied to set aside the writ. At court, Mr Partridge accepted that he had had notice of the possession order and the transfer to the High Court for a writ of possession, but relied on the case of Nicholas, in his argument that he should have been given notice of the application for permission to issue the writ. He further argued that the letter he had received (which he originally denied receiving) was insufficient for the rule that he should have been given notice. The Court dismissed his application and he appealed.
Decision
The appeal was dismissed.
The decision the court reached was that the rule did not require any particular form of notice of any particular application. All that was required was that the occupier knew enough about the proceedings to be able to apply for any appropriate relief. Mr Partridge had been fully involved in the possession proceedings, was aware that the case had been transferred to the High Court and that Mr Gupta intended to make an application for permission to issue a High Court writ. Nicholas was a decision on its own facts with a potential ‘live’ appeal to the Supreme Court.
However, the court also considered what notice should be given in alternative circumstances which may be important for those that wish to instruct a HCEO.
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Where there is a sole occupant who is the subject of the possession order and he has 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 sufficient notice. The rule states that “[where] the defendant is the only person in possession of the premises the claimant must give the defendant notice of the judgment or order, and call upon that person to give up possession under the judgment or order.” The court’s position is that if there is any doubt about whether this is sufficient, it could be resolved by advising the tenant in the same communication that permission to apply for a writ will be sought in due course if possession is not delivered up and that eviction will follow.
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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.
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Where there are other known occupants, then a letter addressed to them (if known by name) or to “the occupants” (if the names are not known) in similar terms to that above is required.
Comment
Landlords are keen to use the services of a HCEO because often they are quicker to execute a warrant. With the increased pressure on the courts and reductions in funding the wait for the county court bailiff has been getting longer and longer and so a HCEO has been seen as an attractive option. However, with this speed comes a higher fee which some landlords have objected to especially where the speed is only a matter of days as opposed to weeks. There has also been changes in the procedure for instructing HCEOs after some high-profile cases in which it emerged that they were being instructed without the permission of the County Court being obtained first. There is no doubt that sometimes the HCEO is the only person for the job but as this case demonstrates there are key things which must be done before the writ is executed and so advice should always be sought prior to making any transfer application.
