Enforcing possession orders: getting the process right

Possession orders are generally obtained in the County Court and enforced by a County Court Bailiff. It is a common source of frustration for claimants that they may have waited several months from issuing a claim to obtaining a possession order, and they can then face delays of up to 12 weeks for a bailiff appointment. In these circumstances, claimants often seek advice about using a High Court Enforcement Officer (HCEO).

HCEOs market themselves on the basis of faster and more effective evictions, although this comes at a higher cost (between £400 to £900, compared with £121 for a bailiff). They can generally act more quickly from the point of receiving a Writ of Possession from the High Court (as opposed to the Warrant of Possession, which is issued in the County Court). HCEOs are also considered to be more effective at dealing with “troublesome evictions”, where the occupiers are going to make a nuisance of themselves, or there is likely to be some protestor activity.

It is important to understand the different procedures for using HCEOs, depending on the nature of the possession claim.

Trespassers

In a possession action against trespassers, a claimant has the option of enforcing through the High Court without requiring the court’s permission. If the claimant decides to take this option, they must present to the County Court office the possession order and a copy of Form N293A with Part 1 of the form completed. A court officer completes and stamps Part 2 of the form. The claimant then instructs the HCEO who completes Part 3 of the form and takes the completed and certified Form N293A to the Central Office or a District Registry of the High Court and obtains a Writ of Possession.

This is an administrative process. Accordingly, there is no need to include any reference to High Court enforcement in the possession claim, or to make an application to transfer/enforce through the High Court.

On a practical level, the claimant’s representative will want to try and ensure the possession order is drawn on the day of the hearing so that it can be taken straight to the court office, together with the partially completed Form N293A. The claimant is then in a position to press ahead with instructing the HCEO straight after leaving court.

Other possession actions

In any other possession action (save for mortgage possession claims, addressed below), in order to use an HCEO a claimant must complete the following steps:

• Apply to the County Court for an order transferring up to the High Court under section 42 of the County Courts Act 1984.
• Apply in the High Court for permission to issue a Writ of Possession under CPR 83.13(2).

The application for transfer should be made to the County Court. While, in general terms, the High Court does have the power to transfer in a County Court case (section 41,County Courts Act 1984), by a Practice Note, dated 21 March 2016, the Senior Master determined that QB Masters will not make orders for transfer for enforcement under section 41, and therefore all applications for transfer of county court orders and judgments for enforcement should be made by an application under section 42 to the District Judge making the order.

It is best practice to include the order to transfer under section 42 as part of the original possession claim in the claim form and particulars of claim. If it is added in later (or after judgment), then strictly the claimant should complete an application notice (Form N244) and pay the additional fee. That said, an oral application can be made at the hearing, and often is.

The District Judge hearing the application to transfer under section 42 has a discretion whether to grant the application, taking into account the factors in CPR 30.3(2), and some District Judges are reluctant to do so. DJ Backhouse (writing in the Law Society Gazette in 2014) stated:

“Given that eviction by a county court bailiff, with notice, is the norm, cogent reasons for a transfer to the High Court should be given. Applications under section 42(2) of the CCA rarely give any evidence of delays in bailiff appointments in that particular court or of the hardship apparently being caused to the landlord, both of which are routinely cited in support of the request. There are undoubtedly cases where a speedy eviction is necessary but applications seeking a transfer to the High Court should be backed up with evidence and not made as a matter of routine.”

While not binding, some useful guidance was given in Birmingham City Council v Mondhlani [2015] EW Misc (CC); [2015] 11 WLUK 130, where the District Judge outlined the following factors to be taken into account when the County Court considered the application to transfer under section 42:

• One would normally expect County Court orders to be enforced in the County Court.
• Given that County Court orders are normally enforced in the County Court, the burden is on an applicant for a transfer to show why the case should be transferred. They would normally do this by pointing to some significant advantage to the applicant by transferring the case to the High Court. This could be in terms of speed, cost to the applicant or the other advantages of having a Writ of Possession.
• It is important to ensure that a transfer to the High Court by virtue of the different procedures does not unfairly prejudice tenants. The fact the process is quicker does not of itself amount to prejudice. It is procedural unfair prejudice one is concerned with and the fact it is quicker is irrelevant provided that the tenant has had an opportunity to seek to set the Writ of Possession aside.
• The court must consider the impact of any transfer on the court’s resources and the impact on other cases.
• The likelihood that any warrant or Writ of Possession, if issued, might be suspended by a court, is a factor relevant to transfer as the advantages of transfer might be minimal if in fact a court would probably suspend the warrant in any event. Thus, the level of arrears and the history of the case are relevant considerations.

While sometimes these applications are successful without specific evidence in support (for example, relying on the level of rent arrears alone), it is best practice to ensure there is evidence before the court to support the application. Usually, this is a case of setting out in a witness statement that the claimant has contacted the relevant County Court to find out the waiting time for a bailiff appointment as well as setting out special circumstances, such as risk of damage to the property, financial hardship on the claimant, urgent repairs and immoral use of the property.

If the District Judge grants the application, the case will be transferred to the High Court where the claimant can apply for permission to issue a Writ of Possession. From this point, the claimant’s chosen HCEO will assist with the procedure (which usually involves an application with Forms PF92, PF88 and No. 66).

It is important to note there is another step in the procedure. The High Court will not give permission for a Writ of Possession unless, pursuant to CPR 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.”

For sufficient notice, a claimant should send a letter to the defendant reminding them of the terms of the court order, requesting that possession be given up under the order, and stating that permission to apply for a Writ of Possession would be sought if possession was not delivered up and that eviction would follow. Where there are other occupants known to occupy the property, then a letter addressed to them if known by name, or to “the occupants” in similar terms, is also required: Partridge v Gupta [2017] EWHC 2110.

Mortgage possession cases

The court’s permission is not required to issue a Writ of Possession in mortgage cases (CPR 83.13(6)). However, there is no clear guidance on whether an application is first needed under section 42 to transfer the matter to the High Court (as per the two-stage test for “other” actions above). On the one hand, CPR 83.13 does not suggest any difference between mortgage possession cases and trespasser cases (and of course the latter type can be transferred to the High Court without permission using Form N293A). But on a practical level there does not seem to be any route to giving effect to the transfer because Form N293A is very clearly limited to trespasser claims.

In the absence of further guidance, it would be prudent to apply in the County Court under section 42 and then rely on CPR 83.13(6) to seek an issue of a Writ of Possession in the High Court, without making an application for permission.

Conclusion

In non-trespasser cases, where applications under section 42 and to the High Court for a Writ of Possession are required to evict by HCEO, the procedural hurdles mean that this option can take a couple of weeks (rather than merely days) from the date of the possession order. The first consideration for any claimant should be the likely waiting time for a bailiff in the relevant County Court. If the bailiff is going to be able to enforce within a few weeks, then the claimant may want to consider if the extra cost for the HCEO is worthwhile. Where the wait for a bailiff stretches into a month (or more) or there are other reasons for using an HCEO, the option is worth considering at an early stage to ensure the appropriate procedure is followed.

This article was first published in Practical Law: Property Litigation Column.