Admiral Taverns (Cygnet) Ltd v Daniel & Anor

Section 89 of the Housing Act 1980 restricts postponement of possession by the court that made the possession order. It does not prevent an appellate court from staying execution pending an appeal or an application for permission to appeal. That construction avoids the potentially unjust result that a successful appellant could lose possession permanently before the appeal was heard. The statutory long title supported this interpretation.

The defendants applied under CPR 39.3(3) to set aside an order discharging a stay of execution of a possession order. They had failed to attend the earlier hearing because they had not been told its time, although they acted promptly and had good reason for their absence.

The central issue was whether section 89(1) of the Housing Act 1980 prevented the High Court, exercising appellate jurisdiction, from staying execution of a possession order beyond the statutory time limits.

1. The application to set aside the order of 10 July 2008 succeeded. The defendants had acted promptly and had good reason for failing to attend the earlier hearing.
2. Section 89(1) of the Housing Act 1980 was capable of two constructions. It could restrict any court asked to postpone possession, or it could restrict only the court that made the possession order.
3. The latter construction was correct. The opening words of section 89 refer to the court that makes the order for possession. The statutory wording therefore does not prevent an appellate court from staying execution pending determination of an appeal or an application for permission to appeal.
4. The court took account of the consequences of the rival constructions. Applying section 89 to an appellate court would produce an odd and apparently unjust result. A person with a meritorious appeal might be dispossessed before the appeal could be heard and might be unable to recover the premises if they were sold.
5. The long title to the Housing Act 1980, which refers to restricting the discretion of the court in making orders for possession, supported the conclusion that Parliament did not intend to restrict the appellate court’s jurisdiction to stay execution pending an appeal.
6. The earlier authorities did not decide the appellate issue. Bain & Co v Church Comrs for England was treated as adopting the narrower view that “court” meant the County Court, while Hackney LBC v Side by Side (Kids) Ltd and Boyland & Son Ltd v Rand concerned different circumstances.
7. The execution of the possession order made on 29 April 2008 was stayed pending determination of the application for permission to appeal.

Not stated in the judgment. The application concerned the High Court’s earlier order and the underlying possession order made by HHJ Gibson, but no separate appellate decision is identified.