Greater clarification on High Court role in possession of land sought

The appeal in Partridge v Gupta dealt with the enforcement in the High Court of an order for possession of land.

Sitting in the Queen’s Bench Division of the High Court, Mr Justice Foskett said that many possession orders made in the County Court are transferred to the High Court for the purposes of enforcement.

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 s.42 of the County Courts Act 1984. 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.

In this case, 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 also for 6 months. 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. The respondent issued a claim for possession in the Watford County Court to which a defence was filed. There was a contested hearing and a possession order made requiring the appellant and his family to give up possession, ordered the appellant to pay costs and refused him permission to appeal on the basis that there was no real prospect of success. The appellant sought permission to appeal from the Circuit Judge which was refused. That application was renewed to an oral hearing. In the meantime, the respondent sought to undertake enforcement of the order and an application in Watford County Court was made seeking permission to transfer the case to the High Court for enforcement purposes.

The High Court Judge held that the test for deciding whether permission to issue a writ of possession should be granted following an order for possession, whether there is one occupant or more than one occupant of the relevant premises, is whether "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".

He said there was no strict rule governing the manner of the communication required. The "notice of the proceedings" referred to did not necessarily require either the service of a formal notice of application for permission or even a more informal intimation by letter or other communication that the application will be heard on a particular day or at a particular time. Either would be sufficient, but neither was required. In this case, the tenant’s extensive involvement in all the proceedings meant that a reminder of the terms of the court order and a request that possession is given up under the order was sufficient notice within the rule.

Please contact us if you would like advice about the legal aspects of an order for possession.