Borough of Hammersmith and Fulham v Lemeh

Once a warrant of possession has been executed, the court’s power to stay or suspend execution under Housing Act 1985, section 85(2), is no longer available. The tenant’s remedy is to seek to set aside the warrant on one of three grounds: that the underlying judgment has been, or may be, set aside; fraud in obtaining the warrant; or abuse of process or oppression in its execution.

Oppression is not confined to conduct by the landlord. It may arise from any state of affairs that unfairly deprives the tenant of a real opportunity to seek relief before execution. An appellate court should not interfere with a trial judge’s factual conclusion unless no reasonable tribunal, properly directing itself in law, could have reached it.

The claimant local authority obtained and executed a warrant of possession against the defendant. The day before execution, the defendant attended the county court intending to seek relief, but court staff mistakenly directed him elsewhere after failing to identify the relevant proceedings. The warrant was executed the following morning.

A district judge set aside the warrant, finding oppression in the combined circumstances. The circuit judge affirmed that decision, although expressing doubt about whether the facts amounted to oppression. The authority appealed to the Court of Appeal, raising whether oppression could result from misleading information given by court staff and whether the factual conclusion was open to the district judge.

1. Appeal dismissed. Lord Justice Nourse delivered the judgment, with Mr Justice Holman agreeing. The established grounds for setting aside an executed possession warrant are: possible setting aside of the underlying judgment, fraud in obtaining the warrant, and abuse of process or oppression in execution.

2. The jurisdiction to stay or suspend execution under Housing Act 1985, section 85(2), ends once the warrant has been executed. If the warrant is set aside, that jurisdiction becomes available again.

3. Oppression in execution is not limited to oppressive conduct by the landlord. Once the warrant has been obtained, execution is a matter between the court and the tenant. The concept may therefore include any state of affairs oppressive to the tenant, including misleading information unintentionally given by court staff.

4. The district judge was the tribunal of fact. The circuit judge, hearing a true appeal, could interfere with the factual conclusion only if no reasonable tribunal of fact, properly directing itself in law, could have reached it.

5. On the facts, the district judge was entitled to find oppression. The defendant attended court during court hours, intended to apply urgently, and would have made the application immediately but for the misleading information. It was permissible to assume that a district judge would have been available to hear the application before execution of the warrant.

6. The order setting aside the warrant was upheld. The appeal was dismissed with costs, subject to legal aid assessment of the respondent’s costs.

• Court of Appeal (Civil Division): The appeal from the West London County Court was dismissed with costs.
• West London County Court: His Honour Judge Cowell affirmed the district judge’s order setting aside the executed warrant, although he doubted whether oppression had been established.
• County court: District Judge Madge set aside the warrant on the ground of oppression in its execution.