Pritchard & Ors v Teitelbaum & Ors

Where a possession order follows a trial at which a party did not attend, an application to set it aside is governed by CPR 39.3. The court considers promptness, the reason for non-attendance and the applicant’s reasonable prospect of success. A possession claim may be a claim against trespassers even where the claimant is a former licensor and the proceedings include other relief. A writ of possession may therefore be issued without permission under RSC Order 113 rule 7. No rule requires advance notice of the intended execution of a valid writ. Unlawful conduct connected with an eviction does not, without more, invalidate possession already recovered or justify restoration where the underlying possession order is unlikely to be set aside.

The claimants sought re-entry to, or access to, a dwelling house after the first and second claimants had been evicted by Fineland Investments Ltd under a writ of possession. Fineland had obtained a possession order in earlier proceedings concerning transactions entered into by the first claimant, and possession had been ordered to be given up on 14 March 2011. The writ was issued on 30 March 2011 and executed on 1 April 2011 without advance notice of the intended eviction. The central issues were whether the possession order or writ should be set aside, whether the eviction was procedurally defective, and whether the claimants should be restored to possession or allowed supervised access to remove possessions.

1. Set-aside application. The October 2010 hearing was a trial for CPR 39.3 purposes. The requirements in rule 39.3(5) were therefore applicable; alternatively, they should normally be applied by analogy. The claimant had delayed, lacked a good reason for non-attendance and had only slight prospects of success. Restoration pending determination of the set-aside application was therefore refused. This approach was supported by Forcelux Ltd v Binnie [2009] EWCA Civ 854 and London Borough of Hackney v Findlay [2011] EWCA Civ 8.
2. Issue of the writ. The possession order fell within the definition of a possession claim against trespassers in CPR 55.1(b). The first claimant’s licence had ended and her continued occupation was as a trespasser. The claim could also fall within CPR 55.2(1)(a)(iii), because the provisions concerning a former licensor and trespassers addressed different aspects of the claim. The inclusion of other heads of relief did not prevent the possession claim from falling within the definition. The writ was accordingly validly issued under RSC Order 113 rule 7 without permission under RSC Order 45 rule 3.
3. Notice and execution. No High Court rule or prescribed form required notice of the intended execution of a valid writ of possession. The absence of such notice therefore created no procedural defect. Fineland was also entitled to enforce the possession order without a writ, and that course would not have infringed section 3 of the Protection from Eviction Act 1977, because the earlier gratuitous licence appeared to be an excluded licence under section 3A(7).
4. Effect of alleged unlawful conduct. Any unlawful behaviour during or after the eviction would not invalidate possession recovered under the order and would not justify restoration where the possession order was unlikely to be set aside. Restoring the claimants would merely lead to a second eviction. The claimants were, however, to have a suitable supervised opportunity to remove their possessions. The applications against the third and fourth defendants were dismissed, certified as totally without merit, and costs were awarded against the claimants, with indemnity costs left for later determination.

The judgment records earlier possession proceedings brought by Fineland, resulting in a possession order dated 31 January 2011: [2011] EWHC 113 (Ch). Permission to appeal was refused and no appeal had been issued. The present judgment was a first-instance determination of the claimants’ subsequent application.