Michael Partridge v Rakesh Gupta (Respondent/Claimant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Foskett |
| Judgment Date | 15 August 2017 |
| Neutral Citation | [2017] EWHC 2110 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB/2016/0188 |
| Date | 15 August 2017 |
[2017] EWHC 2110 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon Mr Justice Foskett
Case No: QB/2016/0188
Justin Bates and Amy Just (instructed by the Bar Pro Bono Unit) for the Appellant
Ben Maltz (instructed by Carr and Kaye) for the Respondent
Shahram Sharghy (instructed by The Burlington Group) for the Burlington Group ( Interested Party)
Hearing date: 26 July 2017
Introduction
This appeal raises a point of practice and procedure arising from the interpretation of CPR 83.13 which is entitled 'Enforcement in the High Court of a judgment or order for possession of land'.
Many possession orders made in the County Court are transferred to the High Court for the purposes of enforcement. I was told that an eviction can usually be carried out more quickly by instructing an authorised High Court Enforcement Officer ('HCEO') than leaving it for execution by the County Court Bailiffs.
Under current practice, where an order for possession is made in the County Court, the landlord who wishes to utilise the High Court procedure applies in the first instance to the District Judge making the possession order for an order of transfer up to the High Court under section 42 of the County Courts Act 1984. Such an order is "completely routine" according to Master Yoxall, whose decision forms the subject of this appeal. When that has been done, the proceedings are transferred to the High Court and the next step before an eviction can take place is for the landlord to apply to the High Court for permission to issue a writ of possession. The rule that governs such an application is CPR 83.13.
The QB Masters often have to deal with applications made under CPR 83.13. In this case, on 1 August 2016 Master Yoxall rejected submissions made by the Appellant (then acting in person) that the Respondent to this appeal (the Appellant's former landlord under an assured shorthold tenancy) had not complied with the requirements of the rule such that the writ of possession, permission for the issue of which had been given by Master McCloud on 8 July 2016, should be set aside.
The Appellant, still acting in person, applied for permission to appeal against the decision of Master Yoxall. Permission was granted by Slade J on 11 May 2017.
Since then the Appellant has secured, via the Bar Pro Bono Unit, the services of Mr Justin Bates and Mrs Amy Just to present his appeal. I am extremely grateful to them both for taking on the case and to the Bar Pro Bono Unit for making them available to represent the Appellant.
For reasons that will emerge, I am not wholly convinced that this appeal is other than academic, though the Appellant's continued liability for the costs of the hearing before the Master could be said to be a matter of significance to him if the Master was wrong to reject his application. However, the matter has been fully argued by Counsel with experience of the issues arising and, in those circumstances, I consider that I should address the arguments. A considered decision may be of assistance in other cases.
Before turning to the background and the competing arguments, I should refer to CPR 83.13.
CPR 83.13
The material parts of CPR 83.13 are as follows:
"(1) A judgment or order for the giving of possession of land may be enforced in the High Court by one or more of the following means—
(a) writ of possession;
…
(2) Subject to paragraphs (3), (5) and (6), a writ of possession to enforce a judgment or order for the giving of possession of any land will not be issued without the permission of the court.
(3) The court's permission is not required for the issue of a writ of possession in a possession claim against trespassers under Part 55 unless the writ is to be issued after the expiry of three months from the date of the order.
(4) An application for permission under paragraph (3) may be made without notice being served on any other party unless the court orders otherwise.
(5) …
(6) …
(7) …
(8) Permission referred to in paragraph (2) will not be granted unless it is shown—
(a) that every person in actual possession of the whole or any part of the land ('the occupant') 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; …."
It is the meaning of CPR 83.13(8)(a) that falls for consideration in this appeal. The issue is the nature of the notice required to be given under that provision.
Background
On 7 February 2014, the Appellant became the assured shorthold tenant of the Respondent at a property in Watford which until his eviction he occupied with his wife and three children. That was for a fixed term of 6 months. A further assured shorthold tenancy was agreed in August 2014, also for 6 months.
On 19 January 2015, the Respondent served notice on the Appellant under s.21, Housing Act 1988. Section 21 gives a landlord an automatic right of possession without having to give any reasons once the fixed term has expired. On 30 November 2015, the Respondent issued a claim for possession in the Watford County Court to which a Defence was filed. There was a contested hearing under the accelerated procedure before District Judge Sethi on 12 February 2016. The District Judge made a possession order requiring the Appellant and his family to give up possession on or before 11 March 2016, ordered the Appellant to pay costs of £359.50 on or before 11 March 2016 and refused the Appellant permission to appeal on the basis that there was no real prospect of success.
The Appellant sought permission to appeal from the Circuit Judge, but on 11 March 2016 HHJ Wilding refused permission to appeal on the papers. That application was renewed to an oral hearing which was dealt with in due course on 20 June 2016 by HHJ Harris.
In the meantime, however, on 23 March 2016 'The Burlington Group' (an HCEO) was instructed by the Respondent to undertake enforcement of the order and that company issued an application in Watford County Court seeking permission to transfer the case to the High Court for enforcement purposes pursuant to section 42(2) of the County Courts Act 1984. The application was said to be "so that a Writ of Possession may be issued in the High Court of Justice." A director of the company, Mr Jonathan Chatfield, said this in the Application Notice:
"We believe that all occupants of the property are fully aware of the Order made on the 12th February 2016 but they have not cooperated to date and have ignored the Order in question. In light of this they are unlikely to vacate unless required to do so.
We are seeking this leave to enforce in the High Court as we are informed by the Creditor that they wish to mitigate their loss and accelerate the eviction process. We have provided Notice to the occupants of the intention to transfer execution to the High Court and believe that all of the occupants are aware of the proceedings in accordance with the CPR.
Having provided Notice we do not feel that the Defendant will be prejudiced by enforcing in the High Court and we will provide further Notice of Eviction if so ordered by this Court."
The Notice to the occupants to which Mr Chatfield referred was contained two letters (sent by first-class post) in identical terms addressed respectively to "The Occupiers" and "Mr Michael Partridge and 1 other" as follows:
"We are writing to formally provide you with notice of the following:
1. Our application to Watford County Court for leave to transfer the enforcement of the Order to the High Court under Section 42 of the County Court Act 1984. This allows a High Court Enforcement Officer to obtain possession of the property rather than a County Court Bailiff, and
2. Our application in accordance with Civil Procedure Rules 83.13(8) to the Queen's Bench Division of the High Court for permission to issue a Writ of Possession following permission from the County Court under Section 42 of the County Court Act 1984 as stated above.
We strongly recommended that you obtain independent legal advice but please do contact this office if you have any questions regarding the impending eviction."
The Respondent did at one stage say that he had not received the letter addressed to him. Master Yoxall rejected that suggestion and no formal issue has been raised on the appeal about that conclusion. It is a conclusion to which I would have come had the issue been raised before me for the same reasons as those given by the Master. I proceed, therefore, on the basis that he did receive the letter.
Paragraph 2 of the letter suggests that an application to the Queen's Bench Division for permission to issue a writ had also been made (in addition to the application to transfer up), but that was not correct since that application was not in fact made until 8 July 2016. Nonetheless, it is argued on behalf of the Respondent that it gives notice of an intention to make such an application. The obvious inference from it (taken either alone or in combination with the final paragraph) is that such an application will be made.
On 4 April 2016 HHJ Wilding adjourned the application to transfer the proceedings to the High Court and listed it for hearing immediately after the renewed application for permission to appeal was heard. Both parties were represented by Counsel and HHJ Harris considered both applications on 20 June 2016. He rejected the application for permission to appeal and ordered the transfer of the proceedings to the High Court. The order giving effect to his decision was dated 6 July 2016.
It appears that, acting in person, the Appellant lodged an...
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