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Suspending warrants

Discretionary grounds

Appeals from the district judge against suspended orders

London Borough of Ealing v Richardson
[2005] EWCA Civ 1798

Facts

This was a very bad case where the district judge nevertheless suspended the warrant for possession - for the ninth time in nine years. The county court judge overturned the suspension.

Decision

However, on a further appeal to the CA the DJ's decision was restored. This was because the circuit judge dealt with the appeal as a rehearing. He should not have done so. He should have treated it as a review. Under CPR 52.11(1)(b) an appeal court can only hold a re-hearing where "the court considers that in the circumstances of an individual appeal it would be in the interests of justice to do so." The case demonstrates the width of a district judge's jurisdiction.

Citation

Ward LJ:
    "It is, in the end, very difficult to see precisely what injustice the judge did find had occurred or what interests of justice actually required this re-hearing. It is, after all, to be firmly accepted that a re-hearing is an exception to the general rule; that some injustice must have occurred, and a simple failure to put one's case before the first court is not ordinarily to be cured by a re-hearing. If fresh evidence is to be put in, permission is sought for it. There are the usual obstacles to calling fresh evidence that could have been made available to the court below, as this evidence could have been, and I am afraid that, one way or another, Judge Oppenheimer took his eye off CPR 52.11(1)(b), to which, in fairness to him, he was not specifically directed, although the opening remarks of the solicitor had been by way of reference to the justice of the case."
And Arden LJ:
    ".. the case which the judge had to consider turned on the exercise by the District Judge of her discretion under section 85 of the Housing Act 1985. There is a substantial difference between an appeal by way of a review of the order of the District Judge in these circumstances, and an appeal by way of re-hearing. If it is an appeal by way of review, then the function of the appellate court is limited to seeing whether the exercise of discretion was wrong in principle or went beyond the generous ambit within which disagreement is possible."

Mandatory grounds

Housing Act 1980, s89
    "(1) Where a court makes an order for the possession of any land in a case not falling within the exceptions mentioned in subsection (2) below, the giving up of possession shall not be postponed (whether by the order or any variation, suspension or stay of execution) to a date later than fourteen days after the making of the order, unless it appears to the court that exceptional hardship would be caused by requiring possession to be given up by that date; and shall not in any event be postponed to a date later than six weeks after the making of the order.

    (2) The restrictions in subsection (1) above do not apply if—
      (a)the order is made in an action by a mortgagee for possession; or
      (b)the order is made in an action for forfeiture of a lease; or
      (c)the court had power to make the order only if it considered it reasonable to make it; or
      (d)the order relates to a dwelling-house which is the subject of a restricted contract (within the meaning of section 19 of the 1977 Act); or
      (e)the order is made in proceedings brought as mentioned in section 88(1) above."
Any court

Section 89 applies to all courts (Boyland and Son Ltd v Rand [2006] EWCA Civ 1860, see Neuberger LJ at para 12).

Trespassers

Boyland and Son Ltd v Rand
[2006] EWCA Civ 1860

The court has no power to give trespassers, against whom an order for possession has been made, any time to vacate without the agreement of the claimant. Section 89 does not give the court power to suspend the order for 14 days (or in exceptional cases) six weeks. Nor is the Human Rights Act of any assistance. Neuberger LJ at para 9:
    "As a matter of ordinary language, it seems to me that s.89 cannot assist the applicant. As the title to the section, which is reflected in the longer title to the 1980 Act, shows, the provision is concerned with cutting down the period from which the court can postpone the operation in law for possession. It is also clear from the negative terms in which the section is expressed. It is to my mind concerned with cases where the court has power to postpone and, in those cases, it is corrected to curtailing the exercise of that power. There is no reason to think that, by a side wind, the legislature intended to grant squatters rights which did not previously exist."
Stay of execution pending appeal

Admiral Taverns (Cygnet) Ltd v Daly
[2008] EWCA Civ 1501

Section s89(1) of the Housing Act 1980 does not prescribe an appellate court’s powers to stay enforcement of a possession order pending the hearing of the appeal. Aldous LJ at para 24:
    "Section 89 has exclusions, but covers cases relating to squatters; and, where an assured shorthold tenancy has come to an end. In most cases the issues involving such cases can be dealt with quickly, but that is not always the case. For example, an alleged squatter may claim possession due to twelve years adverse possession. An appeal against an order for possession in such a case may involve difficult questions of fact and law. It cannot be right that eviction should in every case take place before an appeal is heard on its merits."
And at paras 30 and 31:
    "He [counsel for the claimant] submitted that Section 89(1) ... prevented a court from making an order which postponed possession whether by variation, suspension or stay of execution to a date later than fourteen days or, in exceptional circumstances, six weeks. That, he submitted, must refer to any court, and thus no court could suspend an order for longer than the period set out in the subsection. I cannot accept that submission for four reasons. First, that construction of the section prevents the appellate court from preserving the position until it can be dealt with. It would, in my view, need very clear words in the statute to interfere with the court's inherent jurisdiction. There are, in my view, no such clear words. Second, the subsection can be properly read as restricting the jurisdiction of the court granting the order, not as directed to an appellate court, considering its inherent jurisdiction. Third, the title is, in my view, consistent with a restriction on the right of the court to make an order, not upon restricting the court's inherent jurisdiction. Fourth, to decide that an appellate court had no power to suspend an order obviously could lead to injustice. I do not believe that Parliament could have so intended.

    I conclude that an appellate court has jurisdiction to suspend an order pending appeal, which comes within Section 89(1). When considering whether to grant a stay it will of course have in mind the purpose of Section 89(1)."
Material change in circumstances needed

Michaela Hall v Elia
[2017] EWHC 1023 (Ch)

Summary

It was not appropriate to stay the execution of an order for possession and a consequential order. In order for an applicant to make repeated applications for a stay of execution, he or she had to demonstrate either a material change of circumstances since the original decision, or that there had been a serious mistake in that decision.

Issues
  • Whether it is necessary to establish a material change in circumstances in order to make a further application for a stay under CPR 52.7, and
  • Whether the reasoning in Thevarajah [2015] UKSC 78 (which concerned applications for relief from sanctions) applied to applications for a stay under CPR 52.7

Decision

An order for a stay of proceedings pending appeal is only granted in exceptional circumstances. There must be some "solid grounds" which an applicant must put forward, normally "some form of irremediable harm if no stay is granted": see CPR Part 52.7. The correct approach is as set out by Clarke LJ in Hammond Suddard v Agrichem [2001] EWCA Civ 2065:
    "Whether the court should exercise its discretion to grant a stay will depend upon all the circumstances of the case, but the essential question is whether there is a risk of injustice to one or other or both parties if it grants or refuses a stay. In particular, if a stay is refused what are the risks of the appeal being stifled? If a stay is granted and the appeal fails, what are the risks that the respondent will be unable to enforce the judgment? On the other hand, if a stay is refused and the appeal succeeds, and the judgment is enforced in the meantime, what are the risks of the appellant being able to recover any monies paid from the respondent?"
The decision in Thevarajah is not limited to CPR 3.1(7) cases. Lord Neuberger’s reasoning at [18] included that:
    "Even in interlocutory matters a party cannot fight over again a battle which has already been fought unless there has been some significant change of circumstances, or the party has become aware of facts which he could not reasonably have known, or found out, in time for the first encounter. … Accordingly, even if CPR 3.1(7) did not apply to the second relief application, it appears clear that the appellants would have faced the same hurdle before the Deputy Judge."
Proudman J therefore held that in order to make repeated applications for a stay, an applicant must establish either a material change of circumstances since, or an obvious mistake in the original decision. In the absence of those conditions, an applicant could not have innumerable bites at the same cherry.

Suspension after execution

Secure tenancies

Dunn v Bradford Metropolitan DC; Marston v Leeds City Council
[2002] EWCA 1137

It is not possible to postpone a date for possession under s85(2) once the tenant has left the premises voluntarily, whether following upon the issuing of a warrant for possession or not. Fairly obvious you might have thought! (See further Setting aside). The tenants were trying to extend the date for possession in a claim for disrepair. In any event s13 of the Supply of Goods and Services Act 1982 does not apply to a council tenancy. A council in recognising a tenant's right to occupy is not carrying out a service but merely acknowledging existing property rights.

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