Jephson Homes Housing Association v Moisejevs & Anor

A possession warrant cannot be set aside merely because a tenant’s uninduced misunderstanding made the eviction seem unfair. The Aldwinckle principle requires an unfair use of court procedures amounting to abuse or oppression, normally involving conduct by the landlord, the court or another participant which is open to criticism. The categories of oppression are not closed, but sympathy for the tenant and the prospect that a suspension application might have succeeded are insufficient. No general requirement arises in the County Court to give notice of an application for a possession warrant. Nevertheless, failure to give any notice may be oppressive in an exceptional case. A tenant who knows of the impending eviction but misunderstands what is required to stop it cannot obtain reinstatement on that basis alone.

A secure tenant was evicted under a warrant after breaching a suspended possession order. She had received notice of the eviction date and had consulted the Citizens Advice Bureau, which prepared an application under section 85(2) of the Housing Act 1985, but she did not issue it. The county court refused to set aside execution of the warrant.

On appeal, she argued that her genuine, uninduced misunderstanding made the eviction oppressive or unfair; that the court’s inherent jurisdiction permitted reinstatement; and that notice of the warrant application should be required in the County Court. The central issue was whether the absence of fault, misleading conduct or procedural obstruction nevertheless justified setting aside execution.

1. Appeal dismissed. The appellant’s allegation that the housing association had actively misled her failed. The court proceeded on the assumption that she genuinely misunderstood what was required, but found that the misunderstanding was neither induced by nor known to the respondent.
2. The governing principle, derived from Leicester City Council v Aldwinckle and later cases, permits intervention after execution only where the underlying order is set aside, the warrant was obtained by fraud, or there was abuse of process or oppression in its execution. The references to unfairness in the later authorities were tied to an unfair use of court process which was open to criticism. A mere uninduced misunderstanding, even where a successful application under section 85(2) would probably have been made, did not satisfy that test.
3. The categories of oppression are not closed. Oppression may arise from misleading information given by court staff, or from a landlord’s conduct which misleads or obstructs the tenant’s exercise of the right to seek a stay. But there must be some unfair use of the court’s procedures and some action or omission capable of criticism. There is no free-standing jurisdiction to cure every perceived injustice.
4. The housing association’s letter was undesirable because it implied that payment in full was the only means of avoiding eviction. It did not cause the appellant’s failure to apply under section 85(2), since she already knew of that procedure and had a draft application. The letter therefore did not establish oppression.
5. The inherent jurisdiction was the same jurisdiction applied under the Aldwinckle principle. It prevented oppressive use of court process, but did not allow the court to relieve against the consequences of a tenant’s own uninduced mistake where the landlord was beyond criticism.
6. There was no general requirement, whether by natural justice or under section 76 of the County Court Act 1984, to import the High Court notice requirement into the County Court Rules. However, exceptional circumstances might make a landlord’s failure to give any notice oppressive. This was not such a case because the appellant knew when the bailiffs would attend.
7. Lord Justice Rix agreed with Lord Justice Simon Brown. Permission to appeal was refused.

• Court of Appeal (Civil Division) — Appeal from the order of H.H. Judge McNaught in the Swindon County Court dated 13 April 2000 dismissed. Permission to appeal refused.