By : Andrew Lane
CCR Order 26.5(1) and 26.17(6) provide that a landlord (and indeed a mortgagee too) requires the permission of the court to issue a warrant for possession where “six years or more have elapsed since the date of the judgment or order”. In many instances where the claimant in possession proceedings is a social landlord then possession orders are suspended or postponed on terms that will require many years for the arrears to be cleared, and certainly longer than the 6-year period within which a warrant for possession can be issued without the need for an application to the county court to seek the court’s permission to so issue.
There is some empirical evidence that the question of warrants on “old” orders is becoming an increasingly prevalent issue. It may be that courts are becoming less willing to allow any application to proceed on a without notice basis (which is possible under CCR Order 26.5(2)) and instead require the tenant to be notified of the application.
Whatever the reason, the court will need to have in mind the reasonably clear guidance given in earlier authorities when deciding whether to exercise their discretion and grant permission. I would set down these principles as being as follows:
- no party should suffer unnecessarily from delay which is not their fault but rather a fault in the administration of justice (National Westminster Bank-v-Powney  Ch 339 @ 361C);
- the mere passage of 6 years would be a sufficient ground in itself for refusing permission (Dipka Patel-v-Sarbjit Singh  EWCA Civ 1938 @ 14 + 21);
- the court will not, in general, extend time beyond the 6 years except where it is “demonstrably just” to do so (Duer-v-Frazer  1 WLR 919 @ 925C) – Master Ungley looked for “exceptional circumstances” in Patel and Lord Justice Peter Brown held that Mr Justice Jack was wrong to find that this was a misdirection (@ 24);
- in Patel Lord Justice Peter Gibson said that: “…the court must start from the position that the lapse of 6 years may, and will ordinarily, in itself justify refusing the judgment creditor permission to issue the warrant of execution, unless the judgment creditor can justify the granting of permission by showing that the circumstances of his or her case takes it out of the ordinary.” (@ 21);
- the longer the period that has been allowed to lapse since the order the more likely it is that the court will find prejudice to the defendant (Duer @ 925E); These are not easy “hurdles” for a landlord to overcome and in my experience their cause is not helped by the fact that many ignore the fact that their application for permission must be supported by a witness statement or affidavit “establishing the applicant’s right to relief” (CCR 26.5 (2)). In other words, it is not enough to simply describe what the landlord has or hasn’t done over the years – enter payment arrangements with the tenant, liaise with the housing benefit department, etc – but they must also show why the circumstances of the case take it “out of the ordinary” and make it “demonstrably just” for the permission to be granted. It is after all for the landlord to prove its case and not for the tenant to show that she or he would suffer prejudice if the warrant were to be issued. In Kensington & Chelsea RLBC-v-Scarlett (2005) November “Legal Action” @ 20 for example, District Judge Price sitting at Central London County Court held that the Council had not overcome this burden of proof as, rejecting their analysis of the case as one of chronic failure to pay the rent or one in which they had actively pursued the arrears, he found that it was not a case made exceptional by the fact of the suspended terms being designed to run beyond 6 years (this was not unusual) and saw no other evidence that the case was out of the ordinary. For landlords therefore they have to be careful to manage a possession case post-suspended
ostponed order in a responsible and diligent manner, and if they do need to apply for permission they must address the crucial issues of what makes the case “out of the ordinary” and “demonstrably just” head-on. For tenants, they should be aware that for many of them (at least in the local authority sector) the issue of tolerated trespasser status may be of more consequence for them than a permission application which even if successful may lead to further postponed terms. It would also assist if any evidence they file can demonstrate prejudice if permission were to be granted (such as the stress of extended periods under “threat” of possession). Lastly of course, and the issue for a separate article perhaps, is the question of what a landlord can do if they do not get permission (save for appeal of course):
- If the defendant is a tolerated trespasser could they issue fresh proceedings based on their status as trespassers or would this be ruled an abuse of process (attempting as it would be to get round the established regulatory regime) ?
- Might they grant a fresh tenancy and treat the arrears/costs as purely a judgment debt ?
- Should they apply to vary the possession order so as to postpone possession to a future date (or to a later date to be fixed by the court) and then seek to argue that the 6-years run afresh ?
Watch this space! 3rd July 2006
- the burden of proving that it is “demonstrably just” to extend the time is on the claimant (Duer @ 925C).
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