Partridge v Gupta

Under CPR 83.13(8)(a), permission to issue a writ of possession depends on whether every person in actual possession has received notice of the proceedings sufficient to enable an application for any available relief. The rule does not necessarily require service of the formal application or notice of its hearing date and time. The sufficiency of notice depends on the circumstances. A sole defendant who participated fully in the possession proceedings will generally receive sufficient notice through notice of the order and a request to give up possession. Where other known occupants are present, they should receive a communication identifying the intention to seek permission for a writ if possession is not given up and warning that eviction will follow.

The claimant obtained a possession order in the County Court against the defendant, his former assured shorthold tenant. The County Court later ordered transfer of the proceedings to the High Court for enforcement under section 42(2) of the County Courts Act 1984. Before the transfer, the enforcement agent sent letters to the defendant and the occupiers stating that applications would be made to transfer enforcement and to obtain permission for a writ of possession.

After permission was granted without notice under CPR 83.13, the defendant and his family were evicted. He applied to set aside the permission order, arguing that he should have received notice of the actual application and hearing. Master Yoxall dismissed the application. The appeal concerned the meaning and application of CPR 83.13(8)(a).

1. Appeal dismissed. The letter of 23 March 2016 gave sufficient notice for the purposes of CPR 83.13(8)(a), and Master Yoxall was right to refuse to set aside the permission order.
2. The governing test is whether every person in actual possession has received notice of the proceedings which appears to the court sufficient to enable that person to apply for any relief to which he or she may be entitled. The wording permits a flexible, fact-sensitive approach.
3. The rule does not require service of the formal application for permission to issue a writ, or notice of the precise date or time when the application will be heard. Either form of notice would be sufficient, but neither is mandatory. The ordinary application is made without notice, subject to the court requiring notice where the information is inadequate or doubt exists.
4. Where the sole occupant is the defendant and has participated fully in the possession proceedings, notice of the order and a request to give up possession will generally suffice. It is prudent to state that permission for a writ will be sought and that eviction will follow. If the defendant played no part in the proceedings, the communication should contain that information expressly.
5. Where other known occupants are present, a letter addressed to them by name, or to the occupants if their names are unknown, should state the intention to seek permission for a writ if possession is not surrendered by the date in the order and that eviction will follow.
6. Secretary of State for Defence v Nicholas [2015] EWHC 4064 (Ch) was distinguishable. In that case no warning of the intended enforcement application had been given and a live possible appeal had not been disclosed. The present case included participation in the proceedings and an express warning of the impending eviction.

The judgment describes an appeal from Master Yoxall’s decision of 1 August 2016. Permission to appeal was granted by Slade J on 11 May 2017. The High Court dismissed the appeal and upheld the Master’s decision.