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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Jephson Homes Housing Association v Moisejevs & Anor [2000] EWCA Civ 271 (1 November 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/271.html
Cite as: [2000] EWCA Civ 271
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Case No: B1/2000/0529
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM H.H. JUDGE McNAUGHT
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 1 November 2000
LORD JUSTICE SIMON BROWN
and
LORD JUSTICE RIX
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JEPHSON HOMES HOUSING ASSOCIATION |
Respondent | |
- and - |
||
MOISEJEVS & ANR |
Appellants |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr S Knafler (instructed by Bobbetts Mackan of Bristol BS8 1HB) for the Appellants
Mr T Fancourt (instructed by Burges Salmon of Bristol BS1 4AH) for the Respondent
JUDGMENT
As Approved by the Court
Crown Copyright
LORD JUSTICE SIMON BROWN:
1. On 30 March 2000 the appellant, Mrs Moisejevs, was evicted from her home at 51 Burge Court, Cirencester, where she had lived since 1977. She was previously a secure tenant, evicted by county court bailiffs under a warrant of possession. Her appeal to this court is against Judge McNaught's order in the Swindon County Court on 13 April refusing to set aside the execution of that warrant. The case, therefore, is another in the line of authorities stretching back to Leicester City Council v Aldwinckle (1991) 24 HLR 40 raising the perennial problem of when secure tenants can properly be reinstated following eviction. The appellant's case in a nutshell is that at the time of her eviction she was under the misapprehension that she had done all that was necessary to avoid the execution of the warrant, that but for her misapprehension she would have applied to the court with every expectation of success for a stay or suspension of the warrant under s.85(2) of the Housing Act 1985, that in all the circumstances it is manifestly unfair not to reinstate her, and that the court can and should avoid such unfairness (a) consistently with the approach followed in the Aldwinckle line of cases, alternatively (b) under its inherent jurisdiction, alternatively (c) by application of s.76 of the County Court Act 1984 to read into the County Court rules the requirement in the High Court rules that the tenant be put on notice of an application for a warrant of possession.
2. With that brief introduction let me turn at once to the facts of the case which I shall deal with as briefly as possible although they are before us in the greatest profusion and gave rise to a great deal of argument.
3. As stated, the appellant began living at 51 Burge Court in 1977. The tenancy was in her husband's name but, when he left her in 1994, she became the effective tenant. Her son (now 20) and daughter (now 16) continued to live with her. Arrears of rent built up and on 27 August 1999 a suspended possession order was made requiring her to pay the respondent Housing Association £660.84 (£540.84 for unpaid rent and £120 costs) by instalments of £2.60 per week in addition to the current rent of £51 per week. The order further stated:
"If you do not pay the money owed and costs by the dates given and the current rent, the claimant can ask the court bailiff to evict you and remove your goods to obtain payment. This is called `enforcing the order and money judgment.'"
4. That was not, let it be said, the first such order to be made in respect of this tenancy. Previous suspended possession orders had been made respectively in 1978, 1981, and 1993.
5. On 9 March 2000 the respondents applied to the court for a warrant of possession. By that date the arrears had increased to £1,223.64. All payments had in fact ceased on 13 January 2000 when the appellant's housing benefit was stopped because of a query relating to her son. Pursuant to CCR Order 26 Rule 17(3A), the respondents in their request to the court for the warrant duly certified that the sum of £1,223.64 was due.
6. On 14 March the county court bailiff notified the appellant that a warrant had been issued for possession of the property and that unless she vacated before 30 March they would take possession without further notice and distrain on any goods found at the premises. Given that the warrant was for money due as well as possession such warning notice (of not less than 7 days before distraint) was required by CCR Order 26 Rule 1(4) (a provision strengthened by amendment in 1990).
7. On receipt of the eviction notice the appellant on 16 March consulted the Citizens Advice Bureau who telephoned the respondents on her behalf and prepared for her an application to the court under s.85(2) of the Housing Act 1985 to suspend the possession order, an application which in the event was never issued. Whether the appellant also spoke to the respondents that day and if so what was said was hotly disputed.
8. On 17 March the respondents wrote to the appellant stating that the outstanding rent arrears were now £1,280.64 together with court costs of £80 and continued:
"The County Court has informed me that the bailiff will carry out your eviction on Thursday 30 March 2000 at 10.30 am as you have broken the conditions of the court order held against you. ...
I strongly advise you to use the time before your eviction to find suitable alternative accommodation. You should consider contacting your local council homelessness section who may give you help and advice. However, you may only get limited help as they may consider that by not paying your rent you have made yourself intentionally homeless.
If you are in a position to pay this debt before we evict you, you should pay us by cash, bankers draft or building society cheque and tell your housing officer immediately so that they can make arrangements to cancel your eviction."
9. On 20 March the appellant paid £876 off her arrears and on 24 March, following a phone conversation with the respondents, she also paid the £80 court costs.
10. It is clear that on both 24 March and 28 March there were phone conversations between the appellant and the respondents in which her housing benefit entitlement was discussed. It is clear too that the respondents were concerned to discover from the housing benefit authority (Cotswold District Council) what the position was and that the appellant (who was assuring the respondents that her housing benefit was "all sorted out") was seeking the respondents' confirmation that they were cancelling the eviction. On 29 March, however, the respondents learned from Cotswold District Council that housing benefit was only to be paid from 20 March and that accordingly there would be a shortfall in payment of the arrears of £433.64. In the result the eviction went ahead on 30 March.
11. Immediately upon eviction the appellant went to the Fosseway Housing Association who the following day complained to the respondents on her behalf that she had been misled into believing that were she to pay £876 and to ensure that her housing benefit was reinstated the eviction would be stopped.
12. On 2 May (after the hearing before Judge McNaught) the appellant through her solicitors offered to discharge the outstanding balance of £433.64 and that sum has since remained in their client account. The respondents for their part agreed to leave the premises vacant pending the outcome of this appeal.
13. The appellant's primary case before the judge was that the respondents had indeed told her that were she to pay £876 off the arrears (that sum representing almost exactly the amount by which she was in default under the terms of the suspended possession order) and ensure that her housing benefit was reinstated, they would cancel the eviction. Had she established this case on the facts, plainly she would have been entitled to set aside the execution. But she failed to persuade the judge that she had been misled in this way and I for my part, after exhaustive consideration of the documents, the oral evidence and the probabilities, am wholly unsurprised at this. Accordingly, at an early stage of the appeal hearing we refused permission to appeal on that ground (a ground for which permission had not previously been sought or granted) and I say no more about it.
14. The appellant's secondary case, however, is more difficult. This is that, even if she was not actively misled, she had nevertheless genuinely come to believe that she had done all that was required of her to avoid eviction. This contention on the facts is certainly more persuasive than the first although here again there were powerful arguments available to the respondents as to why it should be rejected. One of the problems, however, was that it was never expressly put to the appellant that she was lying as to her belief nor does the judge seem to have made a clear finding that she knew perfectly well that the eviction was to proceed unless only the arrears were paid off in full (whether in cash or by the backdating of her housing benefit entitlement). Although the point is not free from difficulty, I think the right thing to do in these circumstances is to give the appellant the benefit of the doubt and deal with the appeal on the footing that she was under a genuine misapprehension as to what was required of her to avoid eviction, a misapprehension, however, which was neither induced by the respondents nor known to them.
15. I turn, therefore, to the first of the appellant's arguments which is that the court in these circumstances should set aside the warrant (or at least the execution of the warrant) on the principle established in Aldwinckle.
16. The effect of Aldwinckle itself was helpfully summarised by Nourse LJ in London Borough of Hammersmith & Fulham v Hill (1994) 27 HLR 368, 371, thus:
"... after a warrant for possession has been executed in this class of case it can only be suspended or set aside if either (1) the order on which it is issued is itself set aside; (2) the warrant has been obtained by fraud; or (3) there has been an abuse of process or oppression in its execution."
17. It is, of course, the third limb of this formulation which the appellant seeks to invoke here and it seems to me helpful at once to see the terms in which the later cases have discussed the concept of "abuse of process or oppression in it's [the warrant's] execution". I will postpone until later any consideration of their individual facts.
18. In Camden London Borough Council v Akanni (1997) 29 HLR 845, 849, Brooke LJ said this:
"The context in which the court is willing in a rare, but appropriate, case to intervene to nullify the execution of a warrant for possession goes back to the principles set out in the judgment of Bowen LJ in this court in McHenry v Lewis [1882] 22 Ch 397 at 408. He said:
`I would much rather rest on the general principle that the Court can and will interfere whenever there is a vexation and oppression to prevent the administration of justice being perverted for an unjust end. I would rather do that than attempt to define what vexation and oppression mean; they must vary with the circumstances of each case.'"
19. In Barking & Dagenham LBC v Saint (1998) 31 HLR 620, 626, Peter Gibson LJ, describing the passage I have just cited from Brooke LJ's judgment in Akanni as "plainly right", continued:
"The categories of oppression are not closed and the court must have the power to intervene in the interests of justice in an appropriate case to correct the position where its procedures have been used unfairly to the oppression of a party."
20. Peter Gibson LJ then concluded (at p.630) on the facts of that case that:
"... the result which Barking has achieved through the court process can properly be characterised as manifestly unfair and its conduct can properly be said to amount to oppression."
21. In London Borough of Southwark v Sarfo (unreported, 19 July 1999), Roch LJ concluded that :
"... the enforcement of the execution of this warrant was a use of an order made by the county court in a way which was manifestly unfair."
22. In London Borough of Hammersmith & Fulham v Lemeh (unreported, 3 April 2000), Nourse LJ, having noted that there was no reported case in which it had actually been decided "that oppression can include oppression caused by misleading information given by the court office", continued:
"In principle, I am unable to see why oppression of that kind should not be included. The way in which that ground is usually stated is `oppression in the execution of the warrant'. Once the warrant has been obtained, its execution is a matter between the court and the tenant. It is the officer of the court who executes the warrant and the landlord has no part in that process. Moreover, there seems to be no reason why oppression should be confined to oppressive conduct on the part of the landlord or some other person. It ought to include any state of affairs which is oppressive to the tenant."
23. Finally, in Lambeth London Borough Council v Hughes (unreported, 8 May 2000), a case where the tenant was misled both by the respondent Council and by the court, Waller LJ said this:
"Mr Hughes has made out a case that he received misleading advice from the court. He has also made out a case that he was misled as to the procedures that were available to him i.e. a procedure available under s.85(2). In those circumstances, he has made out a case of oppression ..."
24. Arden J added:
"It is clear from the authorities that oppression includes oppressive conduct which effectively deprives a tenant of his opportunity to apply for a stay (see the Hill case). The position in this case is due to a combination of factors ... There was first the local authority's letter and the conversation with the housing officer ..., both of which indicated that payment in full of all arrears was required to avoid eviction. ... [Mr Hughes] went to the court office where he was given inaccurate information. He was told that eviction papers had not been issued ... The ingredients of oppression in a case such as this have not been defined by the court. The court has stressed that what amounts to oppression depends on the circumstances, but it seems clear to me that the lack of opportunity would not have occurred if Mr Hughes had not been wrongly advised by the court or if the local authority had not given the impression that he had to pay the arrears in full. I agree with Waller LJ that the result is unfair to Mr Hughes."
25. In the light of those judgments, submits Mr Knafler, it is no longer necessary to identify someone as having acted oppressively towards the tenant. It is sufficient to establish merely that the end result is from the tenant's point of view "manifestly unfair" and that, he argues, is the position here given the appellant's misunderstanding and that but for it she would in all probability have made a successful s.85(2) application for the warrant to be suspended. In advancing this submission Mr Knafler relies principally upon the last two sentences of the above-cited passage from Nourse LJ's judgment in Lemeh and upon the concept of an unfair result exemplified in the passage cited above from Arden LJ's judgment in Hughes.
26. Before addressing this argument it is necessary to touch briefly upon the facts of the earlier cases to note the particular context in which the concepts of oppression and unfairness were being discussed.
27. Aldwinckle itself concerned a tenant who was evicted while absent from the premises for some months through illness and who, following her breach of the suspended possession order, received no notice whatever either of the council's application for a warrant, or of the issue of the warrant and the date of its proposed execution. Leggatt LJ (with whom Neill and Stocker LJJ agreed), said:
"The court undoubtedly has inherent power to prevent abuse of proceedings and avoid oppression: cf. Beale v MacGregor (1886) 2 TLR 311. But in my judgment, even though Miss Aldwinckle was not expecting execution to be levied against her possessions, the use of available process does not of itself constitute abuse nor amount to oppression; and the court would be interfering unjustifiably with the existing policy of Parliament were it to introduce its own requirements as to additional conditions that have to be satisfied before execution may issue."
28. The tenant in Hill swore an affidavit following eviction stating that she only had three days notice of the warrant execution date and "I was then informed by a representative of the plaintiffs that I would have no chance of suspending the warrant unless I could find £1,000 within 24 hours"; that this was impossible and that it was on that account that she did not apply for suspension of the warrant. This court held "that an arguable case on oppression has been disclosed and that it ought to be tried".
29. The tenant in Akanni, having failed to comply with the suspended possession order, was notified that the council were requesting a warrant for possession and was told:
"You will be advised in due course of the eviction date, but please note that the eviction will only be cancelled if the entire debt is cleared. You are also advised that you can approach the county court to have the warrant set aside, but the council will resist any such application."
30. The court held that there was no arguable case of oppression on the part of the council.
31. In Saint the council requested the warrant to issue on the basis of certified arrears of £333 when in fact, as the Court of Appeal held, they were in breach of their statutory duty to assist the tenant in his claim for housing benefit and accordingly, save to the extent of £28, were relying on the product of their own wrongdoing. There were further irregularities too in the application for the warrant. Finding the council's conduct oppressive, the court further distinguished Aldwinckle on the footing that whereas in that case it was far from clear that a s.85(2) application would have succeeded, in Saint the likelihood of a suspension being ordered was conceded.
32. The tenant in Sarfo would have succeeded in setting aside the execution of the possession warrant but for her delay in applying to the court and the fact that by then the premises had been demolished. The basis of her case was described at one point of Roch LJ's judgment as "maladministration", and appears more fully from this paragraph:
"On 20 February 1996 the appellant went to see Mrs Kakada. She filled in yet further applications for housing benefit and council tax benefit. She was then interviewed by a housing benefit officer. He headed the form of interview that he completed "URGENT" and he wrote on that form "STOP PROCEEDINGS - PLEASE". It is quite clear from the evidence of the appellant (which the Recorder accepted) that it did not occur to the appellant that the respondent would take any further step in the county court or by way of enforcing the warrant for possession. In my judgment, the appellant was entitled to conclude that no further step would be taken until her application for housing benefit had been decided. She was entitled to believe that a decision on her housing benefit might well remove a large part of the arrears that had accrued. There is no evidence that she was given any warning following 20 February 1996 until the telephone call late on the afternoon of 5 March. It is the respondent's own practice to write a letter before eviction here; they did not do so. It is their practice to visit before eviction; again they did not do so. In those circumstances, in my judgment, there can be no doubt that whatever the respondent's motives may have been, and I would be prepared to accept that this was muddled and not deliberate behaviour, the enforcement of the execution of this warrant was a use of an order made by the county court in a way which was manifestly unfair."
33. In Lemeh, a case which Nourse LJ expressly said depended on its own "very special" facts and would not have "a wide effect on other comparable cases", the tenant had attended the county court saying that he was to be evicted the next day and been sent away by a member of the court staff who mistakenly understood from her own inquiries that no warrant had been issued. This Court thought it "entirely clear ... that, if she [the member of court staff] had not unwittingly given him misleading information, the defendant would have made the application there and then".
34. Hughes involved both misleading advice from the court (once again mistaken information that no warrant had been issued but in addition advice that the tenant should await the bailiffs' letter, which in the event arrived too late to enable a s.85(2) application to be made), and misleading communications from the council indicating that payment in full of all arrears was required to avoid eviction, in particular a letter notifying the tenant of the time of the bailiffs' intended arrival and continuing:
"If you want to stop the eviction you must pay all of your rent arrears by the day before the eviction. You can only pay in cash or by banker's draft. It would be too late for us to clear a cheque. You must show proof of the payment to this office on or before the eviction date. These terms cannot be changed."
35. It seems to me plain from that comparatively brief survey of the facts of those cases that in none of them did the tenant succeed unless he or she demonstrated some clear fault on the part either of the landlord or of the court. In two of the cases (Hill and Hughes) the landlord was open to criticism for having suggested to the tenant that he had no prospect of escaping eviction save by payment of the full arrears - i.e. for implying (in contrast to the position in Akanni) that there was no possibility of making a s.85(2) application to the court. In two of the cases (Saint and Sarfo) the landlord was at fault in various respects in connection with the tenant's housing benefit entitlement and in the latter case also by more generalised "maladministration". In two of the cases (Lemeh and Hughes) the court was at fault in having misled the tenant as to the existence of a warrant and having deflected him from making a s.85(2) application which otherwise he would have made. In all of them, therefore, the tenant was found in one way or another to have been misled or obstructed (even if inadvertently) in the exercise of his rights and it seems to me plain that it was for that reason that the court held the execution of the warrant to have been oppressive.
36. True it is that the result of the execution in these cases was invariably said to be "unfair" or "manifestly unfair", but in each case that expression was directly referable to the use of the court's "process" (or "order" or "procedures") and, moreover, to the use of that process in a way which was open to criticism. None of the cases on their facts lend the least support to the proposition that the court will set aside the execution absent abuse or oppression of the process or that the court will regard an eviction as oppressive merely because of its sympathy towards the tenant in his plight and its realisation that he would have been well advised to make a s.85(2) application.
37. I would therefore reject Mr Knafler's first and main argument and hold that a possession warrant obtained and executed without fault on anyone's part cannot properly be set aside as oppressive within the Aldwinckle principle. I am not, I confess, entirely clear what Nourse LJ meant when he said in Lemeh that oppression ought to include "any state of affairs which is oppressive to the tenant". Either, however, he was meaning no more than that the giving of unintentionally misleading information by the court office, even if not "oppressive conduct" on anyone's part, is nevertheless "oppressive to the tenant" within the Aldwinckle principle (with which I would entirely agree), or the two sentences relied upon were obiter and, insofar as they may suggest that a tenant can be oppressively evicted without any fault on anyone's part, to my mind wrong. I accept, of course, that "the categories of oppression are not closed", but in my judgment there cannot be oppression without the unfair use of court procedures; and something more than the mere use of the eviction process - some action on someone's part which is open to criticism - will be required before the court's procedures can be said to have been unfairly used.
38. Before turning to Mr Knafler's second and third arguments, there is one further aspect of the Aldwinckle line of cases I must deal with. This is the holding in Hughes that the council's letter to the tenant was misleading in implying that, to avoid eviction, he had no option but to pay the arrears in full i.e. there was no alternative of applying to the court.
39. Mr Knafler submits that the letter of 17 March 2000 sent to the appellant here was in similarly objectionable terms and that her case of oppression is accordingly made out at least on this basis. The difficulty with that argument, however, is that on the facts of this case it is absolutely plain that the appellant was not misled by that letter. In the first place she says that despite it she continued to believe that the respondents were in fact requiring her to pay no more than the £876 arrears and £80 costs which she subsequently did pay. Secondly, and no less fatally to her argument, she undoubtedly did know of her right to make a s.85(2) application: the CAB had, indeed, drafted just such an application for her before ever the letter was written. There was accordingly no connection whatever between the letter and the appellant's failure to apply to the court. She was not misled or obstructed in the exercise of her rights.
40. That said, I would join with Waller LJ in deprecating this form of letter. Ideally such a letter should, as in Akanni, expressly advise the tenant of the right to make an application to the county court. Certainly it should not imply, as did the letter in Hughes and, strongly arguably, the letter here, that there is no such right. It would also, I think, be highly beneficial if the standard court form for suspended possession orders (such as that made here on 27 August 1999 quoted above) itself expressly referred not merely (as it does) to the landlord's power on breach to enforce the order by eviction, but also to the tenant's right to apply back to the court for relief. As stated, however, these are not considerations which can avail the appellant in the circumstances of the present case.
41. I pass to Mr Knafler's second argument which is that the court can and should set aside this appellant's eviction under its inherent jurisdiction. This argument I can deal with very shortly. I accept, of course, that the court has an inherent power to prevent abuse of its procedures. Our jurisprudence is replete with examples of this principle in play. Amongst the authorities shown to us were McHenry v Lewis (1882) 22 Ch 397, Beale v Macgregor (1886) 2 TLR 311, R v Bloomsbury & Marylebone CC ex parte Villerwest Limited [1976] 1 WLR 362, and Bremer Vulkan v South India Shipping [1981] AC 909 (at 977 D-E). We also had the benefit of reading the essay The Inherent Jurisdiction of the Court by Master Jacob (now Professor Sir Jack Jacob QC) in the 1970 UCL publication Current Legal Problems. In my judgment, however, it is precisely this jurisdiction and no other which the court is exercising when applying the Ardwinckle principle. The court's inherent power is to prevent the oppressive use of its own processes; it is not to act as Robin Hood and cure all perceived injustices. The court could not, for example, prevent a defendant from relying on the Statute of Limitations to defeat a claim which, as a result of an uninduced misunderstanding, was brought too late. No more, in my judgment, can the court here set aside this eviction merely on the footing that the appellant misunderstood her position and thereby lost her opportunity to have the warrant stayed.
42. In short, once it is concluded that there is no oppression, it necessarily follows that there is no inherent power in the court to set aside the eviction. Lest, however, that be thought a needlessly restrictive view of the court's powers, I would add that in my judgment such an eviction will not in any event result in unfairness, let alone manifest unfairness (if in truth that be a different concept). By definition no one but the tenant will have been in any way materially at fault in the eviction process (otherwise a case of oppression would arise). It will, therefore, be the tenant's own fault that he or she has been evicted, at least in the sense that the tenant will have breached a conditional possession order and have failed to apply to the court for relief under s.85(2) (albeit a failure in the present case through the appellant's misunderstanding of her situation). The landlord for his part will be beyond criticism and, having finally obtained possession, ought to be allowed to benefit from it. It is surely one thing to say, in a case where, for example, the court staff are at fault, that the landlord risks the tenant being reinstated; quite another to say that a tenant can assert against her landlord her own uninduced misapprehension - a contention, incidentally, which is not readily amenable to objective adjudication.
43. I turn finally to Mr Knafler's third and last argument, that a requirement that the tenant be put on notice of a possession warrant application should routinely be imported from the High Court Rules in to the County Court Rules.
44. Although I for my part find the effect of RSC Order 45 rule 3(2) and (3)(a) and Order 46 rule 2(1)(d) somewhat obscure, it was decided in Fleet Limited v Lower Maisonette [1972] 1 WLR 765 that natural justice required the High Court Rules to be construed as requiring the tenant to be given notice of the landlord's application for leave to issue a writ of execution following an alleged breach of a conditional possession order. There is, of course, no such requirement in the County Court rules. In four of the cases already discussed - Aldwinckle, Hill, Saint and Hughes - this court touched upon the anomaly. The court in Aldwinckle suggested that the Rules Committee should consider the matter. The court in Saint wondered whether s.76 of the County Court Act 1984 could be invoked to distinguish Aldwinckle but found it unnecessary to decide the point. Arden LJ in Hughes again invited the Civil Procedure Rules Committee to consider the discrepancy between the two sets of Rules.
45. Mr Knafler submits to us in the light of these authorities, first that natural justice plainly requires the tenant to be given notice of an application for a possession warrant (see Fleet), and second, as suggested by Peter Gibson LJ in Saint, that s.76 allows this High Court practice to be applied also in the County Court.
46. Mr Fancourt for the respondents advances a series of arguments in response. First he submits that on their true construction the High Court Rules do not in fact require the tenant (or at any rate the head tenant) to be put on notice in all cases. Second, that s.76 of the 1984 Act has no application to the County Court Rules in their present form (CPR Schedule 2), made as these are under s.2 of the Civil Procedure Act 1997. Third, that even if s.76 otherwise applies, it cannot apply in a case like this where the County Court Rules make express provision but in different terms to the High Court Rules - see Rolph v Zolan [1993] 1 WLR 1305. Fourth, that there are in truth good reasons for the two sets of Rules to be different (not least because the High Court, unlike the County Court, may initially have given a default judgment for possession), and it must be remembered that since this difference was first pointed out (as long ago as in Peachey Property Corporation Limited v Robinson [1967] 2 QB 543) there have been two new sets of County Court Rules (respectively in 1981 and now again in the CPR) quite apart from other relevant changes such as that to CCR Order 26 rule 1(4) (referred to above), without it being thought necessary or appropriate to change Order 26 rule 17.
47. For my part I would reject the first three of those arguments. Fleet seems to me for present purposes conclusive on the first point. As for s.76, (a) it is expressly referred to in the new Order 1 r.6, (b) unlike s.75 (under which the earlier County Court Rules were made) it has not been repealed, (c) on its most literal construction it can still apply to the new Rules, and (d) commonsense in any event dictates that it should still apply. As to the third argument, there is to my mind no express provision in the County Court Rules which would actually be inconsistent with an imported High Court Rule as to notice.
48. Mr Fancourt's fourth argument, however, seems to me to have much greater force. Certainly I find it impossible, in the light of the evident continuing reluctance of the Rules Committee to amend the County Court Rules, to find, as Mr Knafler must necessarily contend for, a requirement in natural justice that the tenant be given notice of a request for the issue of a possession warrant in all cases.
49. As a number of the cases make plain, the tenant will almost invariably be given notice at least of the date and time when the bailiff intends to execute the warrant. Assuming the tenant knows of his right to apply to the court under s.85(2), that gives time enough for its exercise. If, of course, he is ignorant of his s.85(2) right, no notice whatever will alert him to it.
50. I recognise, of course, that a case could occur when the tenant comes to be evicted without ever having been put on notice at all. Aldwinckle, indeed, was such a case. The tenant would, of course, know of his breach of the suspended possession order. But, as in Aldwinckle, he might not know that the landlord was requesting a possession warrant or that the bailiff was proposing to execute it. As Aldwinckle decided, however, that of itself will not be regarded as oppressive. I can well imagine a case, unlike Aldwinckle, in which it would be oppressive for the landlord not to give notice to the tenant - where for example, following breach of the suspended order, the tenant has been progressively reducing the arrears - perhaps substantially beyond the point required by the suspended order - and where it would plainly be wrong suddenly to spring an eviction upon him.
51. In short, whilst I would reject the argument that a requirement for notice must in all cases be introduced into the County Court Rules, whether by way of natural justice and/or s.76, I would accept that cases may arise when the landlord could properly be held to have acted oppressively if the tenant were never to receive any notice whatever of his impending eviction.
52. This, however, is plainly not such a case. It was not for want of notice that the appellant failed to make a s.85(2) application or otherwise avert her eviction. She knew full well when the bailiffs were due to arrive. Her problem was in misunderstanding what was required to cancel their attendance. And this, as I have earlier explained, cannot sustain her claim for reinstatement.
53. It follows that I would reject all three of Mr Knafler's arguments and, sympathetic though I am to the appellant in her plight, dismiss her appeal.
54. I note by way of postscript that ECHR contentions too were advanced in Mr Knafler's skeleton argument. These, however, although introducing very real difficulties as to the application of the Convention to a housing association, added nothing of substance to the appellant's case on the merits. I accordingly say no more about them.
LORD JUSTICE RIX:
55. I agree.
Order: Appeal dismissed; Costs to be determined under section 11 of Access to Justice Act 1999; Appellant's costs to be assessed under Legal Services Commission; Permission to appeal refused.
(Order does not form part of approved judgment.)