England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MAYOR'S & CITY OF LONDON COUNTY COURT
(His Honour Judge Birtles)
6CK10379

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/04/2007

Lord Justice Chadwick :

1. This is an appeal from an order made on 22 September 2006 by HH Judge Birtles, sitting at the Mayor's and City of London County Court, in proceedings brought by London and Quadrant Housing Trust (to which I shall refer as "the Trust") against Ms Carol Ann Ansell (also known as Carol Ann Marley). The judge ordered Ms Ansell to give up possession of her dwelling house at 39 Hannay Lane, Crouch End, London N8 on or before 20 October 2006. The order has not been enforced, pending the outcome of this appeal.
2. The Trust is a registered social landlord. It is the owner of the property at 39 Hannay Lane. It is common ground (i) that, from 8 September 1987 or thereabouts, Ms Ansell was in occupation of that property under a secure tenancy granted by the Trust and (ii) that that secure tenancy came to an end (in circumstances which I shall describe) in March 2001, following the breach of a suspended possession order made in the Clerkenwell County Court on 19 February 2001 in earlier proceedings between the same parties.
3. Notwithstanding the breach of the order made on 19 February 2001, Ms Ansell remained in occupation of the property. Housing benefit has been paid regularly. Although there is a small sum due from her in respect of arrears of rent/mesne profits, it is not for that reason that the Trust now seeks possession. Rather, it is said that she, her family and associates have behaved in a manner which has caused nuisance and annoyance to her neighbours and others in the vicinity of the property. The present proceedings include claims for orders under sections 1B and 1D of the Crime and Disorder Act 1998.
4. The present proceedings were commenced by a claim issued in Clerkenwell County Court on 10 February 2006. It should be said, at the outset, that the Trust commenced these proceedings because it took the view that, in the events which have happened, it was no longer possible to enforce the possession order made on 19 February 2001. It is common ground – and, if it were not, I would be minded to hold – that, if it were open to the Trust to issue and execute a warrant of possession under that order, the present proceedings would be misconceived. The proper course would be to proceed under that order: Civil Procedure Rules, schedule 2, CCR Order 26, rule 17. In proceedings under the order of 19 February 2001 the county court would have the extended discretionary powers conferred by section 85(2) of the Housing Act 1985.

The provisions in Part IV of the Housing Act 1985

5. In order to understand and address the issues raised by this appeal it is necessary to have in mind the statutory framework in relation to secure tenancies now contained in Part IV of the Housing Act 1985. A tenancy under which a dwelling house is let as a separate dwelling is a secure tenancy at any time when the conditions described as "the landlord condition" and "the tenant condition" are satisfied: section 79 of that Act. There is no dispute that those conditions were satisfied in respect of the tenancy granted to Ms Ansell in 1987: as I have said, the Trust is a registered social landlord.
6. Part IV of the 1985 Act provides security of tenure to a tenant in occupation under a secure tenancy. A secure tenancy cannot be brought to an end by the landlord except by obtaining an order for possession of the dwelling house – section 82(1) of the Act – save in circumstances (not here material) described in section 82(3). Section 83 contains provisions as to the notice which is to be served on the tenant before proceedings are commenced. Section 83A contains provisions as to the time (from service of the notice) within which proceedings are to be commenced. And section 84, read with schedule 2, sets out the grounds on which an order for possession may be made; and the requirements as to reasonableness and the availability of other suitable accommodation.
7. Where the landlord obtains an order for possession of the dwelling house, the tenancy ends on the date on which the tenant is to give up possession in pursuance of the order: section 82(2) of the 1985 Act. Section 85 of the Act confers on the court an extended discretion both as to the postponement of the date for possession and as to the stay or suspension of the order for possession. Subsections (2), (3) and (4) of section 85 are of relevance in the present context:

"85(2) On the making of an order for possession of such dwelling-house on any of those grounds [set out in Part 1 or Part III of Schedule 2], or at any time before the execution of the order, the court may –

(a) suspend or stay the execution of the order, or

(b) postpone the date of possession,

for such period or periods as the court thinks fit

(3) On any such adjournment, stay, suspension or postponement the court -

(a) shall impose conditions with respect to the payment by the tenant of arrears of rent (if any) and rent or payments in respect of occupation after the termination of the tenancy (mesne profits), unless it considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable, and

(b) may impose such other conditions as it thinks fit.

(4) If the conditions are complied with, the court may, if it thinks fit, discharge or rescind the order for possession."

8. The effect of those provisions was explained by Lord Browne-Wilkinson in Burrows v Brent London Borough Council [1996] 1 WLR 1448, 1454H-1455A:

"A secure tenancy protected by Part IV of the Act of 1985 is not like an ordinary tenancy. It can only be terminated by an order of the court ordering possession to be given on a particular date or in a particular event. But even determination by order of the court is not final. Until the possession order is executed, the court can by variation of its order change the date on which possession is to be given and thereby revive a secure tenancy which has already been terminated. During the period between the date specified by the order for the giving of possession and the date on which the order is executed there is a period of limbo: the old tenancy has gone but may be revived by a further order of the court varying the date for possession."

The reference, there, to the possibility that the "old tenancy . . . may be revived by a further order of the court varying the date for possession" is to the possibility that, on an application under section 85(2)(b) of the Act, made at any time before execution of the order for possession, the court may decide to vary the possession order by a further order postponing the date of possession: see Lambeth Borough Council v Rogers (1999) 32 HLR 361, 367. There is the further possibility that, on the tenant complying with the conditions imposed by an order made under section 85(2)(a) and (3), the court may discharge or rescind the order for possession: section 85(4) of the Act. In either case the original secure tenancy will revive.

Tolerated trespassers

9. In a case where the secure tenancy is brought to an end by an order for possession – that is to say, where the order specifies the date on which the tenant is to give up possession and the tenancy ends on that date pursuant to section 82(2) of the 1985 Act – the former tenant may, nevertheless, remain in occupation under the protection of an order, made under section 85(2)(a) and (3), staying or suspending execution of the order for possession on conditions. So long as the former tenant complies with the conditions, his continued occupation is not referable to any agreement with the former landlord: it is referable to the order staying or suspending execution on terms.
10. But what if the former tenant fails to comply with the conditions imposed by the order suspending or staying execution? He then ceases to enjoy the protection of the order which the court had made under section 85(2)(a) and (3) of the Act: he is in breach of that order. Nevertheless, it is not unusual to find that the former tenant remains in occupation with the agreement of the landlord: perhaps, on the same terms as those formerly imposed by the order made under section 85(2)(a) and (3) or (it may be) on varied terms. The question, then, is on what basis is the former tenant in occupation: is he there as tenant, as licensee or as trespasser?
11. Lord Browne-Wilkinson went on to consider that question in Burrows v Brent. The answer, he thought, was to be found by asking: what intention is to be imputed to parties who reach agreement as to the continued occupation of the (former) tenant during the limbo period? He said this (ibid, 1455B-D):

" . . . In my judgment the agreement can and should take effect in the way that the parties intend, i.e. it is an agreement by the landlords that, upon the tenant complying with the agreed conditions, the landlords will forbear from executing the order, i.e. from taking the step which would finally put an end to the tenant's right to apply to the court for an order reviving the tenancy. There is no need to impute to the parties an intention to create a new tenancy or licence: the retention of possession and the payment of rent relate to occupation under the old tenancy which is in limbo but which may be revived. In these circumstances I think it is fair to characterise the former tenant as a trespasser whom the landlord has agreed not to evict – a 'tolerated trespasser' – pending either the revival of the old tenancy or the breach of the agreed conditions."

12. It was in that passage, I think, that the concept of the tolerated trespasser first received judicial recognition. As described by Lord Browne-Wilkinson, a tolerated trespasser is a former secure tenant against whom a possession order has been made; whose tenancy has come to an end under section 82(2) of the 1985 Act; who has remained in possession of the property; who has not complied with conditions imposed under section 85(3) of that Act and so does not have the protection of an order made under section 85(2); and whom the landlord has agreed (on terms) not to evict.

The preliminary issue directed in the present proceedings

13. Possession was sought in the present proceedings, first, on the basis that Ms Ansell had occupied the property as a trespasser since the termination of her secure tenancy. But, in the alternative, it was said that, if by reason of the conduct of the parties since the termination of the secure tenancy Ms Ansell has acquired a new tenancy, that new tenancy was an assured shorthold tenancy which the landlord was entitled to determine, and had determined, by notice under the Housing Act 1988.
14. On 3 March 2006, District Judge Haselgrove, sitting in the Clerkenwell County Court, directed that there be determined, as a preliminary issue, whether Ms Ansell was a tolerated trespasser and (if not) what was her status as occupier of the property at 39 Hannay Lane. Ms Ansell was directed to serve a fully detailed defence in respect of that preliminary issue. Until that issue was decided, all proceedings were stayed.
15. In the defence served on her behalf pursuant to that direction, Ms Ansell averred, in terms (at paragraph 6), that she was in occupation as a tolerated trespasser. But she denied that the Trust was entitled to possession of the property on that basis, or any other basis. It was said that the Trust was seeking to bring an action on the judgment in the earlier proceedings; that that was a course which was not open to a claimant; and that the only means of enforcing the earlier possession order was by the issue and execution of a warrant of possession. Accordingly, it was said, the claim for possession in the present proceedings was misconceived and the proceedings should be dismissed.
16. Paragraph 7 of the defence contained an express denial that a new tenancy was created by the conduct of the parties, following the determination of the original secure tenancy. Paragraph 8 - which was, perhaps, irrelevant in the context of a determination of the preliminary issue – contained an averment that if (which was again denied) an assured shorthold tenancy had been created by conduct, the notice under the Housing Act 1988 upon which the Trust relied in the alternative was defective and of no effect.
17. Given the position taken by Ms Ansell in her defence, it might have been thought that the parties were agreed as to the answer to the preliminary issue. The Trust's primary contention was that Ms Ansell occupied the property as a trespasser: albeit a trespasser whose occupation had, until issue of the proceedings in 2006, been tolerated. Ms Ansell's position, also, was that she was a tolerated trespasser and not a tenant. There was nothing between the parties on that point.
18. To answer the preliminary issue in the terms in which it was posed – that is to say, simply to declare that Ms Ansell was in occupation of 39 Hannay Lane as a trespasser – would have been to ignore the real issue between the parties. The real issue between the parties, in these proceedings, was that raised by paragraph 6 of the defence on the preliminary issue served on behalf of Ms Ansell. Was it open to the Trust to commence new proceedings on the basis that Ms Ansell, as a trespasser whose occupation was no longer tolerated, had no right to remain in occupation?

Was it open to the Trust to commence the present proceedings?

19. In support of the contention that it was not open to a claimant to bring proceedings to enforce an earlier county court judgment the defence pleaded reliance upon three authorities: Berkeley v Elderkin (1853) 1 E & B 805, Austin v Mills (1853) 9 Ex 288 and Savill v Dalton [1915] 3 KB 174.
20. Two of those authorities, Berkeley v Elderkin and Austin v Mills, were decided shortly after the establishment of county courts in 1846 by "An Act for the more easy Recovery of Small Debts and Demands in England" (9 & 10 Victoriae Cap. 95). In Berkeley v Elderkin the plaintiff had obtained judgment against the defendant in the Northamptonshire County Court. The judgment remained unsatisfied. The plaintiff sought to bring an action upon the judgment debt in the Court of Queen's Bench. It was held that no action lay in a superior court on a county court judgment. The reason was stated by Lord Campbell, Chief Justice 1 E & B 805, at 807:

"Prima facie, an action lies on the judgment of every court of competent jurisdiction: but I think it is quite clear, when we look at the provisions of stat. 9 & 10 Vict c.95, that the intention of the Legislature was to confine the remedy on the judgments of courts constituted under that Act to the remedies specifically provided in the Act. The policy of the Act was to give an easy and cheap remedy for the recovery of small debts. The intention of the Legislature will be entirely defeated if the creditor is at liberty to adopt this course. . . ."

That decision was followed some months later in the Court of Exchequer in Austin v Mills 9 Ex 288, at 293. In Savill v Dalton [1915] 3 KB 174 – a decision of this Court on provisions in the County Courts Act 1888 and the County Court Rules 1903 – the law was taken to be settled (ibid, 181): no action will lie upon either an order or a judgment made in the county court.

21. As I have said, if the court's powers under section 85(2), (3) and (4) of the 1985 Act had remained exercisable in the present case, I would be minded to hold the present proceedings were misconceived. If it were open to the Trust to issue and execute a warrant of possession under the order of 19 February 2001 there would be a powerful reason for accepting Ms Ansell's contention that possession cannot be sought in the present proceedings. It would be wrong to allow the protection afforded by section 85(2) of the Act to be circumvented by proceeding otherwise than under that order.

Do the court's powers under section 85 of the Housing Act 1985 remain exercisable in the present case?

22. In order to decide whether the powers of the county court under section 85 of the 1985 Act – which, plainly, were exercisable in connection with the enforcement of the order for possession made on 19 February 2001 - remained exercisable at the time when the present proceedings were commenced in February 2006, it is necessary to consider whether that order of 19 February 2001 was capable of being enforced in February 2006. In that context, regard must be had to the terms of the order of 19 February 2001; and to the events which happened thereafter.
23. On 16 November 2000 the Trust had issued a summons for possession of the property at 39 Hannay Lane on the ground that rent was unpaid and in arrears. An order for possession was made on 19 February 2001. It appears from that order that Ms Ansell did not attend. The order was in these terms, so far as material:

"The court has decided that unless you make the payments as set out in paragraph 3 you must give the claimant possession of 39 Hannay Lane, Crouch End, London, N8 9QQ on 19 March 2001.

You must also pay to the claimant £1,049.15 for unpaid rent, use and occupation of the property and £120.00 for the claimant's costs of making the application of possession.

You must pay the claimant the total amount of £1,169.15 by instalments of £2.65 per week in addition to the current rent. The current rent is £84.00 per week. The first payment of both these amounts must be made on or before 5 March 2001. When you have paid the total amount mentioned the claimant will not be able to take any steps to evict you as a result of this order.

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'."

24. The position on the facts, following the order made on 19 February 2001, may be summarised as follows:

(1) It has been common ground in these proceedings that Ms Ansell was in breach of that order on or about 12 March 2001 (see paragraph 5 of the Defence on the Preliminary Issue dated 20 March 2006) and that the effect of the order of 19 February 2001 and that breach was that the secure tenancy came to an end on the date of that breach. For my part, I think that (by reason of the breach) the secure tenancy came to an end on 19 March 2001; but nothing turns on that.

(2) It is clear from the rent statements that were in evidence in the present proceedings that Ms Ansell did not make regular weekly payments of current rent and arrears during 2001, although there were monthly payments of housing benefit. Those ceased, temporarily, from March 2002. On 16 May 2002 the Trust requested the issue of a warrant of possession. But on an assurance from the local housing authority that arrears of housing benefits would be paid, the Trust withdrew that request (or cancelled the eviction which was due to be effected under it) on 20 June 2002. It was agreed that the outstanding arrears (after taking account of the payments which the Trust expected to receive from the authority) would be discharged by Ms Ansell at the rate of £5.00 per week. It is not, I think, in dispute that, from June 2002 (if not earlier) Ms Ansell remained in occupation as a tolerated trespasser, in the sense in which that expression was used by Lord Browne-Wilkinson in Burrows v Brent (ibid, 1455 D).

(3) The rent statements show that a substantial payment of housing benefit in respect of the period March to May 2002 was received in June 2002; and that, thereafter, housing benefit was paid regularly. Ms Ansell made payments off the arrears until October 2003. On 26 October 2004 her account went into credit on receipt (unusually) of one month's housing benefit in advance. The account remained in credit until December 2004.

25. Ms Ansell's understanding of the position appears from her witness statement of 21 April 2006:

"3. . . . I did manage to pay off the arrears by 26^th October 2004 and I had a credit balance of £301.42 at that time following a housing benefit payment of £768.00. The reason for the credit balance was because, prior to that date, Housing Benefit was paid every four weeks in arrears to the sum of £384.00. On 26^th October [2004] my landlord received a housing benefit payment covering the period September 27^th to 21^st November. . . . From 21^st January [2005] Housing Benefit payments reverted to being paid in arrears. . . . That said, I believe that the costs of the proceedings from 2001 have not been paid, and that they remain outstanding. Such costs do not appear to have been added to my rent account at any time.

4. My solicitors informed me that on 17^th February 2006 they wrote to the Claimant on my instructions, indicating that they were clearly of the view that all payments I had made in respect of the premises were appropriated to the rent as shown in the rent statements provided from time to time, and that in the event that the sums I had paid had not already been appropriated to rent due, I appropriated all such sums paid exclusively to rent due whether under the tenancy agreement dated 8^th September 1997 or under the order of 19^th February 2001."

From the end of December 2004 the rent statements show that the account has been consistently in debit; although (after taking account of the mismatch between monthly receipts of housing benefit and weekly debits of rent) the residual debit balance has been small – in the region of £75. This is not a case in which, since June 2002, there has been an accrual of substantial rent arrears.

26. The effect of appropriating all sums paid to rent due – rather than to costs – would be that the whole of the monies to be paid under the order of 19 February 2001 (£1,169.15) would not have been paid. That is because, although the rent element in that sum (£1,049.15) could be said to have been finally paid off in October 2004 – when the rent account went into credit - the costs element in that sum (£120.00) would not have been paid off.
27. The significance of that point lies in the fact that, as both the Trust and Ms Ansell accept, if the whole of the monies to be paid under the order of 19 February 2001 have been paid, then no warrant of possession can be issued under that order. That is the effect of the final sentence in the third paragraph of that order of 19 February 2001: "When you have paid the total amount mentioned, the claimant will not be able to take any steps to evict you as a result of this order". But, if the whole of the monies to be paid under the order of 19 February 2001 have not been paid, then, as I have said, there would be obvious force in Ms Ansell's contention that, because it would be open to the Trust to proceed to enforce that order by the issue of a warrant of possession, the present proceedings are misconceived.
28. The question whether the whole of the monies to be paid under the order of 19 February 2001 had, or had not, been paid when the rent account went into credit in October 2004 was not raised – at least, not raised in express terms – in the defence on the preliminary issue served on behalf of Ms Ansell; although her case (that the whole of the monies had not been paid) may be said to be latent in paragraph 5 of that pleading:

"On or about 12^th March 2001, the defendant breached the terms of the suspended possession order, and thereafter became a 'tolerated trespasser' with a right to occupy the premises pursuant to section 85(2) of the Housing Act 1985, and a right to occupy pending execution of the suspended order pursuant to CPR Schedule 2 CCR Order 26(17)."

It is, I think, inherent in that pleading that, at that stage, Ms Ansell accepted – indeed averred – that the order of 19 February 2001 was still capable of being enforced by execution of a warrant of possession. Be that as it may, the point emerged in the skeleton arguments filed on behalf of the parties before trial of the preliminary issue – see paragraph 10 in the claimant's skeleton of 20 July 2006 and paragraphs 8(3), (4) and (5) of the defendant's skeleton dated 21 July 2006. Paragraph 8(3) of the defendant's skeleton sets out the conflicting views:

"The defendant submits that the costs remain outstanding, and that the full terms of the possession order have not been complied with. By contrast, the Claimant contends that the costs of the earlier possession proceedings have indeed been paid . . ."

29. Although it could be said that the question whether the whole of the monies to be paid under the order of 19 February 2001 had, or had not, been paid when the rent account went into credit in October 2004 was not before him - in that it had not been raised by the preliminary issue – the judge thought it appropriate to decide that question. He held, at paragraph 6 of the judgment which he delivered on 22 September 2006, that the order of 19 February 2001 had been fully satisfied. He said this:

" . . . it is quite clear to me that the payments made by the defendant were both for arrears of rent/mesne profits and costs. There is simply no basis for asserting that the payments for costs only occurred at the end of the payments for the arrears of rent/mesne profits. I therefore find as a fact that on 26 October 2004 the order of the Clerkenwell County Court made on 19 February 2001 had been fully complied with, in that the sum of £1,169.15, comprising £1,049.15 for unpaid rent, re-use (sic) and occupation of the property and £120 for the claimant's costs of making the original application for possession, had been paid. As the order itself makes clear, when that occurred, the claimant would not be able to take any steps to evict her as a result of this order."

30. There is no appeal from that finding. Miss Ansell must be taken to have decided (no doubt on advice) that her interests are best served by accepting that she has nothing to pay under the order of 19 February 2001. In this Court she relies on the contention which had been raised below, in the alternative, in the final sentence of paragraph 8(5) of the skeleton argument of 21 July 2006:

"In the further alternative . . . should the court find that the costs have in fact been paid, and the order of 19^th February 2001 is no longer enforceable, it is submitted that the legal consequence of this is that the Defendant would be a perpetual tolerated trespasser."

31. It follows that – whatever view we might have taken if the question had been before us – we must address the issues raised by this appeal on the basis that the order for possession made on 19 February 2001 is not enforceable (and, since 26 October 2004, has not been enforceable) by the issue of a warrant of possession under that order.
32. But that conclusion does not, of itself, provide the answer to the question – to which I now turn - whether, in circumstances where the order for possession made on 19 February 2001 is not enforceable by the issue and execution of a warrant of possession under that order, the court's powers under section 85 of the Act nevertheless remain exercisable.
33. It is, I think, common ground – and, if it were not, I would so hold – that the secure tenancy, which had come to an end in March 2001, did not revive automatically when the whole of the monies to be paid under the order of 19 February 2001 were paid in October 2004. If authority be needed for that proposition it is to be found in the decision of this Court in Marshall v Bradford Metropolitan District Council [2001] EWCA Civ 594; [2002] HLR 22, 428, 442-3 (paragraphs 32- 37).
34. Further, it would not be open to a court, on the facts in the present case, to revive the secure tenancy by an order under section 85(4) of the Act, discharging or rescinding the order for possession made in 2001. The reason is that the power under section 85(4) is exercisable only if the conditions imposed under section 85(3) have been complied with: Swindon Borough Council v Aston [2002] EWCA Civ 1850; [2003] HLR 42, 610, 618-9 (paragraph 20). Those conditions were not complied with. Ms Ansell did not make payments in accordance with the terms of the order: albeit that she did (on the facts as found by the judge) pay all the monies which were to be paid under the order of 19 February 2001.
35. It is necessary to ask, therefore, whether a court could entertain an application by Ms Ansell for an order under section 85(2)(a) of the 1985 Act staying or suspending execution of the order for possession made in 2001; or for an order under section 85(2)(b) postponing the date of possession. In my view the answer to those questions – at least in this Court – is 'No'. There would be no purpose in staying or suspending the order for possession. Under the terms of the order (as made) and in the events which have happened, the order of 19 February 2001 has ceased to be enforceable. There is no date to which the giving of possession could sensibly be postponed. Under the terms of the order as made, and in the events which have happened, there has been no date since 26 October 2004 (and now can be no date hereafter) on which Miss Ansell can be required to give possession of 39 Hannay Lane on the ground relied upon in the earlier proceedings.
36. The position in the present case is indistinguishable from that in Swindon B C v Aston. In that case – as in the present – the court made a suspended possession order (on the ground that rent had been unpaid) on terms that the tenant pay current rent and a specified sum off the arrears. The tenant failed to comply with the terms as to payment; but, eventually, a housing benefit payment was made which cleared all outstanding arrears to be paid under the possession order. The landlord commenced fresh proceedings, seeking possession on the basis that the former tenant had become a trespasser; in the alternative (if the tenant were a secure tenant) on the ground that he was in breach of the terms of his tenancy agreement (in that he had failed to keep the garden tidy). The former tenant applied to the court for an order under section 85(4) of the 1985 Act rescinding the possession order on the grounds that the arrears had been paid in full. Mr Justice Pumfrey (sitting in this Court with Lord Justice Schiemann and Lord Justice Jonathan Parker, both of whom agreed with his judgment) said this (ibid, 618-9):

"[20] This raises a short point of construction. What is the effect of the final paragraph of the order, 'that the judgment shall cease to be enforceable when the (arrears of rent, . . . and ) costs referred to above are satisfied'? In my view, this means what it says. If the arrears of rent and the costs are paid, the order ceases to be enforceable by warrant of possession. The provision is of course the counterpart of the suspensory conditions, since they cease to operate once the arrears are paid. But it has two further effects. It permits the arrears to be paid off early, so that (for example) payment at the prescribed rate for two weeks followed by a payment of all the balance brings the order to an end; and it seems to me to be clear as a matter of words that it operates when all the arrears are in fact paid off. In the latter case, if the local authority has not obtained possession, it appears to me that the position is that the order has ceased to be enforceable, but (because of his earlier breach) the tenant has become a trespasser. If a further warrant of possession against the tolerated trespasser is sought, it might be thought that his only hope is to try to revive the tenancy by an application under section 85(4). But it seems to me that an application under section 85(4) is precluded, since the conditions attached to the 1991 order were not complied with. In Marshall v Bradford Metropolitan Council [2001] EWCA Civ 594; [2002] H.L.R.22 (p 428), Chadwick LJ, with whom Schiemann LJ and Sir Christopher Staughton agreed, decided that the reference to 'conditions' in section 85(4) was a reference to the conditions (as varied from time to time under section 85(3)) upon which the order for possession was suspended. Thus, as Miss Recorder Ralphs correctly held, Mr Aston could not apply to have the order rescinded under section 85(4). So far as section 85(2) was concerned, an application to postpone the date of possession was not possible since the order had ceased to be enforceable.

[21]. It follows that after this point in time, the tenant's continuing occupation, and the receipt of rent, is no longer referable only to the possibility of an application under section 85(2) postponing the date on which possession is to be given, or the possibility of an application under section 85(4).

37. It follows that I think that this Court is bound to hold that the court's powers under section 85 of the 1985 Act – although formerly exercisable in connection with the enforcement of the order of 19 February 2001 – did not remain exercisable when the present proceedings were commenced.

Further consideration of the question whether it was open to the Trust to commence the present proceedings?

38. I return, therefore, to the question whether it was open to the Trust to commence the present proceedings. As I have said, if it were open to the Trust to issue and execute a warrant of possession under the order of 19 February 2001, there would be a powerful reason for accepting Ms Ansell's contention that possession cannot be sought in the present proceedings: it would be wrong to allow the protection afforded by section 85(2) of the Act to be circumvented by proceeding otherwise than under that order. But, given the conclusion that the powers under section 85 of the 1985 Act did not remain exercisable, that reason cannot be advanced. It provides no support for the contention that the present proceedings are misconceived.
39. Nor, as it seems to me, do the authorities upon which Ms Ansell seeks to rely provide assistance in the present case. The Trust is not seeking, in the present proceedings, to enforce the order for possession made on 19 February 2001. The order for possession of 19 February 2001 is not enforceable; and the court's powers under section 85(2) are no longer exercisable in relation to enforcement under that order. There is no legislative policy which will be defeated by allowing the Trust to commence and pursue the present proceedings.
40. The contrary view would lead to the result – for which Ms Ansell contends in this Court – that there is no step which the Trust can take to bring her occupation of 39 Hannay Lane to an end; that she has become a perpetual tolerated trespasser – that is to say, that (although in occupation as a trespasser) she is, in law, irremovable. I am unable to accept that there is any legislative policy in this field which compels that result.
41. I have said that the Trust is not seeking to enforce the order for possession made on 19 February 2001 in the present proceedings. It is important to keep that in mind. Nor is the Trust seeking to obtain possession on the basis of the rent arrears which led to the making of that order of 19 February 2001. In the present proceedings the Trust claims to be entitled to possession by virtue of its title as freehold owner in circumstances where (i) the secure tenancy granted in 1997 has come to an end, (ii) there is no possibility of that tenancy being revived by an order of a court and (iii) no other tenancy has arisen from the conduct of the parties. It is, of course, true that the secure tenancy has come to an end because (in the events which happened) the date on which the tenant was to give up possession in pursuance of the order was 12 March 2001 (or, as I prefer to think, 19 March 2001). But the tenancy came to an end on that date because that is what section 82(2) of the 1985 Act provides. The Trust relies, in the present proceedings, on the fact that the order was made and on the fact that (in the events which happened) the date on which the tenant was to give up possession in pursuance of the order was 12 (or 19) March 2001 in order to establish that the secure tenancy has come to an end; but that is not at all the same as seeking to enforce the order.

Was the judge right to make an order for possession?

42. As I have said, it would have been open to the judge simply to answer the preliminary issue which was before him by recording, in a form which bound the parties in these proceedings, that the parties were in agreement that Ms Ansell was in occupation as a trespasser. But he did not take that course. By his order of 22 September 2006 the judge gave judgment for the claimant and ordered that the defendant, Ms Ansell, give up possession of 39 Hannay Lane within 28 days. By implication, therefore, he answered the preliminary issue in the terms for which both parties were contending; lifted the stay on further proceedings imposed by the order of 3 March 2006; held that there was no rule of law or practice which prevented the Trust from pursuing a claim for possession in the present proceedings; and held that there was no defence to that claim.
43. The judge summarised his conclusions at paragraphs 19 to 24 of his judgment. At paragraph 19 he explained that, on the basis of his findings of fact, Ms Ansell's secure tenancy had come to an end on the date when possession was ordered to be given (19 March 2001) or when the order was breached on or about 12 March 2001. He observed that it was agreed between the parties that thereafter Ms Ansell became a tolerated trespasser, as described in Burrows v Brent LBC. He went on:

"20. I have already also found that by 26 October 2004 the defendant had managed to pay off the arrears and costs and had a credit balance of £301.42 at that time following a housing benefit payment of £768.00 for the period 27 September to 21 November 2004. The legal effect of that was that the order of 19 February 2001 no longer had any effect. The status of the defendant was and remained a tolerated trespasser. No action could be taken by the claimant on the order of 19 February 2001 and, in particular, it could not apply for a warrant for possession of the property under that order or under the original claim. It follows that the only way in which the claimant could obtain possession of the property was to cease to tolerate the trespass by the defendant. It could only do so by bringing a fresh claim, which is the claim currently before me. No question of issuing a warrant for possession under the original claim therefore arises. I should add that it is agreed between the parties that no question of a fresh tenancy arising by the acts of either of them arises in this case. It follows that I am firmly of the view that the claim currently before me does not amount to an action on a previous judgment. Neither do I accept that the authorities cited by Mr Feldman have any application to the facts in this case for the reasons set out in Miss Bhaloo's skeleton argument in reply."

44. At paragraphs 21 and 22 the judge reiterated his view that the whole of the monies to be paid under the order of 19 February 2001 had been paid when the rent account went into credit on 26 October 2004. He observed that: "The fact that at a point of time when the account went into credit the claimant failed to transfer the sum of £120.00 on or about 26 October 2004 from the rent/mesne profits account to a different bank account is irrelevant". At paragraph 23 the judge rejected the submission that, if the order for possession of 19 February 2001 were no longer enforceable, the legal consequence was that Ms Ansell was a perpetual tolerated trespasser. He said: "That is to misunderstand the nature of trespass, whether tolerated or not. The bringing of a fresh action makes it clear that the trespass is no longer tolerated and the claimant is entitled to possession of the property". His conclusion, at paragraph 24, was expressed in these terms;

"24. My conclusion therefore is that the defendant became a tolerated trespasser of the property on either 12 March or 19 March 2001. The claimant was entitled, and indeed required, to bring a fresh claim for possession, which it has done. That was a valid and lawful claim for possession which succeeds. I will therefore make an order for possession of the property within 28 days from the date when this judgment is handed down."

45. It is important to have in mind (i) that the judge found that the whole of the monies to be paid under the order of 19 February 2001 had been paid when the rent account went into credit on 26 October 2004 and (ii) that (as the judge observed at paragraph 20 of his judgment) it was common ground before him "that no question of a fresh tenancy arising by the acts of either of them arises in this case". Given those two factors, I find it impossible to say that the judge was not entitled to make the order for possession which he did.
46. As I have said, it would have been open to the judge simply to answer the preliminary issue in the terms in which it was posed: that is to say, simply to declare that Ms Ansell was in occupation of 39 Hannay Lane as a trespasser. But that would not have addressed the underlying issue: was it open to the Trust to commence new proceedings on the basis that Ms Ansell, as a trespasser whose occupation was no longer tolerated, had no right to remain in occupation? The parties were plainly content for the judge to decide that issue: indeed, Ms Ansell, at least, may be taken (by her pleaded defence on the preliminary issue) to have invited the judge to do so. Given the two factors to which I have referred, it seems to me that, once the judge had held that it was open to the Trust to commence new proceedings on the basis that Ms Ansell, as a trespasser whose occupation was no longer tolerated, had no right to remain in occupation, he was bound to take the view that there was no defence to the claim for possession; and to recognise that by making an order for possession.

This appeal

47. Permission to appeal from the order of 22 September 2006 was granted by this Court (Lord Justice Auld) on 4 December 2006. The grounds of appeal are set out under section 6 of the appellant's notice filed on 23 October 2006 in these terms: (i) the judge erred in law in holding that the Trust was entitled and indeed required to bring a fresh claim for possession in this case; (ii) the judge erred in law in holding that a possession order was enforceable in the county court otherwise than by warrant; and (iii) if a possession order was enforceable otherwise than by warrant, the provisions of section 85(2) of the Housing Act 1985 would be avoided.
48. As I have said there is no appeal from the judge's finding that the whole of the monies to be paid under the order of 19 February 2001 have been paid. In the course of the hearing of the appeal the Court invited counsel for Ms Ansell to apply for permission to amend the pleaded defence to assert that a new tenancy had arisen by the conduct of the parties since the date when the order of 19 February 2001 ceased to be enforceable. No such application was made: counsel expressly declined the invitation to do so.
49. It will be clear from earlier paragraphs of this judgment that I am satisfied that none of the grounds of appeal can be made good. Absent an appeal from the judge's finding that whole of the monies to be paid under the order of 19 February 2001, it cannot be said that the judge was wrong to hold that that order had ceased to be enforceable. He was correct to take that view; and correct, also, to hold that, in those circumstances the Trust was entitled to bring a fresh claim for possession. On a proper analysis of his reasoning the judge cannot be said to have held that a possession order was enforceable in the county court otherwise than by a warrant of possession. He held that the possession order of 19 February 2001 was not enforceable; and that the Trust was not seeking to enforce that order in the present proceedings. He did not fall into the error of allowing a possession order, made under Part IV of the 1985 Act, to be enforced in a manner which circumvented the provisions of section 85(2) of that Act. For the reasons which I have explained, the extended discretion conferred on the court by those provisions had ceased to be exercisable on the facts in this case.
50. For those reasons I would dismiss this appeal.

Some further observations

51. I confess to some unease in finding that the Court is driven to the conclusion that Ms Ansell has lost the protection afforded by the provisions of section 85(2) of the Housing Act 1985 in circumstances in which – without her concurrence and, perhaps, without her knowledge at the time – the whole of the monies to be paid under the order of 19 February 2001 were paid by an unanticipated change in the pattern of housing benefit payments. Although I am satisfied that the Court is driven to that conclusion by Ms Ansell's decision (no doubt on advice) not to appeal the finding of the judge as to the effect of the housing benefit payments – and by the decision in Swindon Borough Council v Aston (which is binding upon us) – I cannot avoid thinking that it would have been more satisfactory if the question whether Ms Ansell should be required to give up possession of her dwelling-house could have been addressed in the context of an application to stay or suspend the execution of the possession order of 19 February 2001.
52. On a more general basis, as it seems to me, the decision in Swindon Borough Council v Aston – that the powers under section 85(2) of the 1985 Act are not exercisable once a possession order ceases to be enforceable on payment of all the monies which are to be paid thereunder – provides a trap for former tenants and their advisers who do pay what the order requires them to pay without first making an application to vary the order by postponing the date of possession. The problem is compounded if – as will frequently be the case – the former tenant has not complied strictly with the conditions imposed by the order; and so cannot seek discharge or rescission of the possession order under section 85(4) of the Act.
53. I appreciate, of course, that the decision in Swindon Borough Council v Aston provides a route by which a new tenancy may come into existence once the earlier possession order has ceased to be enforceable. But the new tenancy will not be a secure tenancy; and the tenant will not enjoy, under the new tenancy, the protection which he or she did enjoy under the provisions of Part IV of the Housing Act 1985.
54. These further observations may merit consideration in another place. They do not affect my view as to the proper disposal of this appeal by this Court.

Lord Justice Lloyd :

55. I agree that this appeal should be dismissed for the reasons given by Lord Justice Chadwick.
56. As he says, but for the judge's finding of fact that the sums received on Miss Ansell's account had been applied in payment not only of rent and arrears but also of the £120 costs due under the order for possession made on 19 February 2001, that order would still have been enforceable, and the range of powers open to the court under section 85 of the Housing Act 1985 would still have been exercisable. For that reason, at first instance, it was to Miss Ansell's advantage for her to contend that the costs due under the original order had not yet been paid.
57. On appeal, not challenging that finding of fact, the logic of her position was different, leading her to take the position that she could not be ordered to leave the premises whatever she might do and for however long she might wish to stay there. That would be a surprising result, to say the least.
58. But for the decision of this court in Swindon Borough Council v Aston [2002] EWCA Civ 1850, it might be open for argument that Miss Ansell could either have applied for the original order to be rescinded under section 85(4) or for a date for possession to be postponed under section 85(2). The latter would have been a somewhat artificial exercise, given that the order was, by virtue of its own terms, no longer enforceable. That is no doubt the basis for the decision expressed in the last sentence of paragraph 20 of Pumfrey J's judgment. We are, in any event, bound by that decision.
59. A more satisfactory approach for the future (in the absence of legislation on the point, such as has been recommended by the Law Commission in its report Renting Homes: The Final Report, 2006, Law Com No 297) is to make an order for possession in different terms. This court held a different form, without a specified date for giving possession, to be legitimate, and recommended its use, in Bristol City Council v Hassan [2006] EWCA Civ 656. Even that form of order provides for it to cease to be enforceable when the judgment debt is satisfied (see paragraph 39) but the structure of the order is intended to avoid, among other things, the sort of problem which arose in this case.
60. From the landlord's point of view, the problem which the "tolerated trespasser" concept avoided was the creation of a new tenancy: see Burrows v Brent London Borough Council [1996] 1 WLR 1448 at 1454, and in a different statutory context Leadenhall Residential 2 Ltd v Stirling [2001] EWCA Civ 1011. Changes in the housing legislation since then mean that the creation of a new tenancy is a less undesirable result for the landlord than it once was. But the desirable position, for both parties, in a case such as the present, is that they should be able to revert to the position as it was before the order was made, or before it took effect, with both parties having the benefit and burden of the original tenancy and the court continuing to be able to exercise the discretionary jurisdiction afforded by section 85.
61. For the reasons given by Chadwick LJ that position is not open in the present case, and the result is not that the former tenant cannot be evicted at all, but that she can be without being able to invoke the protective jurisdiction afforded by section 85 of the Housing Act 1985.

Mr Justice Stanley Burnton:

62. I entirely agree with the judgment of Lord Justice Chadwick. I should like to associate myself specifically with his further observations. In the circumstances of this case, which cannot be unusual, the legislation and authority compelled the stark and unsatisfactory choice between perpetual irremovability and unqualified insecurity. I do not think that that was what Parliament would or should have intended.