De Grey & Anor v Ford & Anor

Committal for contempt may be used as a last resort to secure compliance with a possession order where ordinary enforcement by warrant and bailiffs has failed and the defendant continues to obstruct possession. A defendant cannot resist committal by relying on a pending or prospective application to reopen the possession proceedings, alleged entitlement based on continued occupation, or a later claim to adverse possession. The court may suspend committal to give a final opportunity to comply, but continued and resolute defiance can justify imprisonment.

The claimants owned land adjoining the defendants’ home and obtained a possession order after a four-day trial. The order required delivery of possession of the land and an extension to the defendants’ building. Permission to appeal was refused, a warrant was executed, and the defendants later re-entered and remained in occupation.

The defendants obstructed enforcement and were found in continuing breach. The county court made a 28-day committal order, suspended until 6 October 2005. The defendants appealed, relying on the absence of an original penal notice, proposed new evidence and retrial proceedings, alleged failure to obtain legal representation, Convention rights, and their contention that they had never been dispossessed. The central issue was whether committal was justified to enforce the possession order.

1. Appeal dismissed. The defendants’ continued occupation and obstruction were established, and their stated intention to remain in possession confirmed that the breach was continuing and contumelious.
2. The possession order remained binding. A pending application to reopen the proceedings, alleged new evidence, or possible future proceedings could not cure or answer the existing breach. The material relied upon did not disclose any realistic prospect of reopening the possession proceedings.
3. Actual physical re-entry after execution of the warrant was irrelevant to the legal effect of the order. The defendants had been removed under the warrant and had wrongfully returned to land which, under the order, was not theirs.
4. The court applied the principles stated in Bell v Tuohy [2002] EWCA Civ 423, [2002] 3 All ER 975: committal is a last resort; a warrant is the normal means of enforcing possession; a penal notice is generally undesirable unless there are good and exceptional grounds; and, where obstruction of execution makes committal necessary, the application should ordinarily rely on that obstruction.
5. The judge had acted fairly. He accepted the evidence of breach, was not required to make a further injunction before committal after the defendants acknowledged knowledge of the penal notice, and suspended the order for more than a month to allow compliance. The Convention arguments disclosed no basis for interfering with the committal order.

The committal order was upheld. The appeal was dismissed with costs of £5,164.13. Permission to appeal was refused, and certification of a question was declined.

• Court of Appeal (Civil Division): [2005] EWCA Civ 1223. Appeal against the Central London County Court order of 25 September 2005 dismissed with costs. Permission to appeal refused.
• Central London County Court: His Honour Judge Harris made a 28-day committal order following the defendants’ continuing breach of the possession order, suspending its effect until 6 October 2005.