Secretary of State for Defence v Nicholas

Permission to issue a writ of possession may be set aside where material information about a pending appeal or potential appeal was not before the court and it is unclear whether permission would otherwise have been granted. Under Civil Procedure Rules 1998, r 83.13(8), every person in actual possession must receive sufficient notice of the proceedings to enable an application for relief. Knowledge of an earlier possession order does not necessarily satisfy that requirement. Relief after execution should be confined to what is necessary: the possession order and warrant may be set aside, with access restored, but the court should not impose wider restraints unsupported by the procedural history.

Helen Nicholas occupied military accommodation after her divorce from an Air Force officer. The Secretary of State obtained a possession order, and the Court of Appeal dismissed her appeal and ordered her to give possession by 31 March 2015.

The Deputy Master subsequently granted permission on the papers to issue a writ of possession. The writ was executed while a potential application to the Supreme Court remained possible and public funding was being considered. Nicholas applied to set aside the permission order and the warrant, relying on incomplete evidence and lack of notice of the writ application.

1. Order set aside. The evidence supporting the application for permission did not refer to the extension of time for a possible Supreme Court application or the outstanding public-funding issue. Although no blame attached to the solicitor, it was unclear whether the Deputy Master would have granted permission had he known those matters. The permission order was therefore set aside.
2. Notice required. Rule 83.13(4) concerns applications under rule 83.13(3), relating to possession claims against trespassers where more than three months have elapsed since the possession order. It did not necessarily govern this application. The court rejected the submission that notice of the earlier possession order and Court of Appeal decision was sufficient under rule 83.13(8)(a). That provision required notice sufficient to enable the occupant to apply for relief in relation to the proceedings for the writ. The approach was supported by Leicester City Council v Aldwinkle The Times, 5 April 1991 (CA) and Jephson Homes Housing Association v Moisejevs [2001] 33 HLR 54.
3. Scope of relief. The court declined to prohibit re-letting until the conclusion of any Supreme Court appeal, because the Court of Appeal had already refused equivalent relief. The order set aside the Deputy Master's order and the warrant of eviction, required keys to be provided to Nicholas, and prohibited re-letting until any further possession application on notice had been determined and a writ lawfully executed.

The judgment described an earlier possession order made by Burton J and an appeal dismissed by the Court of Appeal on 4 February 2015. No citations for those decisions were stated. The present court set aside the subsequent permission order and warrant of eviction, while limiting the additional relief sought.