Circle 33 Housing Trust Ltd. v Ellis

After eviction, the court’s jurisdiction to set aside or suspend a possession warrant is exceptional. It requires misuse of court procedures, including fraud, abuse of process or oppression, and something more than the ordinary use of eviction powers. Sympathy, hindsight, or the likelihood that a timely application would have succeeded is insufficient. A social landlord’s obligations under housing-benefit guidance must be assessed realistically. Where further enquiries depend on the tenant’s cooperation, the landlord is not at fault if the tenant refuses to provide it. An alleged failure must also have a causal connection with the eviction before it can amount to oppressive use of the court’s process.

Circle 33 Housing Trust Limited was the landlord of an assured weekly tenancy held by Desmond Ellis. A possession order was made in the Barnet County Court for rent arrears after housing-benefit payments ceased. The warrant was executed on 9 March 2005.

After eviction, Mr Ellis applied for a stay, re-entry and the setting aside of the warrant, relying on a housing-benefit reassessment which cleared most of the arrears. The County Court rejected the application, finding no fraud, abuse of process or oppression. Holland J allowed Mr Ellis’s appeal, quashed the eviction and ordered re-entry. The landlord appealed. The central issue was whether its failure to make further enquiries of the housing department made the execution of the warrant oppressive.

1. Disposition. Lord Justice Chadwick gave the leading judgment, with Lord Justices Moore-Bick and Ward agreeing. The appeal was allowed, Holland J’s order was set aside and Mr Ellis’s application for re-entry was dismissed.
2. Jurisdiction after eviction. Section 9(2) of the Housing Act 1988 permits the court to stay or suspend a possession order, or postpone possession, up to the point of execution. The statutory scheme recognises that finality is required after eviction so that a social landlord can relet the property. Post-eviction intervention therefore requires a principled basis, such as setting aside the possession order, fraud, abuse of process or oppression.
3. Oppression. The court adopted the principle identified in Camden London Borough Council v Akanni [1997] 29 HLR 845, endorsed in Barking and Dagenham London Borough Council v Saint [1998] 31 HLR 620 and applied in Jephson Homes Housing Association v Moisejevs [2001] 2 All ER 901. Oppression requires unfair use of court procedures. Something more than the mere use of the eviction process, namely conduct open to criticism, is required. The court cannot create additional safeguards based on sympathy, hindsight or the likely success of an application which was not made before eviction.
4. Application. The landlord had maintained liaison with the housing department and had received repeated explanations that benefit could not be restored until Mr Ellis supplied further information. The evidence showed that the department maintained that position even after eviction and changed it only after Mr Ellis provided the required information. The landlord could not sensibly obtain confirmation from the Department of Work and Pensions without his cooperation. His failure to respond to correspondence or attend the proposed meeting meant that the landlord had done what the guidance required. Further enquiries would not have prevented the warrant being executed, so there was no causative link between the alleged omission and the eviction.
5. Costs. The landlord was awarded its costs in the Court of Appeal and below, subject to the costs judge determining the respondent’s and Legal Services Commission’s liability.

• Court of Appeal (Civil Division): Permission was granted and the appeal was heard. The appeal was allowed, Holland J’s order was set aside and the application for re-entry was dismissed.
• High Court, Queen’s Bench Division: Holland J allowed Mr Ellis’s appeal from the County Court, quashed the eviction and ordered that re-entry be permitted.
• Barnet County Court: A possession order was made for rent arrears. After execution of the warrant, Judge Ansell refused the application to set aside the warrant and restore possession.