Hertfordshire County Council v Davies

Permission to issue a writ of possession under CPR 83.13 does not require service of the application itself on occupants. The court must instead be satisfied that every person in actual occupation has received sufficient notice of the possession proceedings to seek any available relief. Knowledge of a possession order may be insufficient where enforcement is contemplated during an appeal; ordinarily, a warning of the intention to enforce is required. A procedural failure will not necessarily invalidate permission or the writ. The court may correct the error under CPR 3.10 where adequate notice was later given, the appeal had ended, the occupants had time to seek relief, and enforcement would inevitably have followed. A public sector equality duty will not justify a stay where the evidence cannot credibly show that compliance would have altered the enforcement decision.

The claimant local authority employed the defendant as a resident caretaker and provided accommodation linked to his employment. After his employment ended, the High Court made a possession order. Permission to appeal was granted, but the claimant later obtained permission to issue a writ of possession without disclosing the pending appeal and without giving the occupants a copy of the application.

The appeal was subsequently dismissed and permission to appeal to the Supreme Court was refused. The defendant and his family were eventually evicted. He applied to set aside the permission and writ, and sought reinstatement, alleging defective notice, non-disclosure of the appeal, procedural defects and breach of the public sector equality duty. The central issues were whether the permission and writ were invalid and whether the court should grant relief.

1. Application refused. The permission to issue the writ and the writ itself were not set aside. The writ was validly issued under CPR 3.10 despite procedural defaults.
2. Under CPR 83.13(8)(a), the court must be satisfied that every person in actual possession has received notice of the possession proceedings sufficient to enable an application for any relief. The provision does not require service of the application for permission to issue, or notice of the hearing, on the occupants. The relevant proceedings are the possession proceedings culminating in the possession order, not merely the later application for permission.
3. Mere knowledge of a possession order was insufficient in the circumstances. Because appeals were ongoing, some warning of an intention to enforce was required, although notice that an application to enforce was in progress was unnecessary. The July 2019 correspondence, which clearly indicated an intention to enforce if possession was not given, would have constituted adequate notice had it preceded the application.
4. The failure to disclose the pending appeal was a default, but it did not require the permission or writ to be set aside. The mischief addressed by disclosure was enforcement during an appeal which might later succeed. That had not occurred, and the appeals had fallen away before enforcement.
5. Relief was also unavailable on the public sector equality duty. The defendant had no private law right to remain, had remained in the property for approximately four and a half years after termination, and had had ample time to seek alternative accommodation. The evidence did not raise a credible argument that consideration of the relevant matters would have altered the decision to enforce. Any stay application on that basis would have been bound to fail.
6. Arguments based on the wrong form, the Senior Master’s Practice Note and CPR Part 23 failed. The application was made under CPR 83 and was governed by its procedural rules; there was no requirement to serve the application and order before issuing the writ.

First-instance decision. The judgment records that a possession order had been made by Elisabeth Laing J on 21 June 2017, and that the Court of Appeal later dismissed the defendant’s appeal by decision dated 6 March 2018 and order dated 12 March 2018. The Supreme Court refused permission to appeal on 27 June 2019.