England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/08/2017

Mr Justice Foskett :

Introduction

1. This appeal raises a point of practice and procedure arising from the interpretation of CPR 83.13 which is entitled 'Enforcement in the High Court of a judgment or order for possession of land'.
2. Many possession orders made in the County Court are transferred to the High Court for the purposes of enforcement. I was told that an eviction can usually be carried out more quickly by instructing an authorised High Court Enforcement Officer ('HCEO') than leaving it for execution by the County Court Bailiffs.
3. Under current practice, where an order for possession is made in the County Court, the landlord who wishes to utilise the High Court procedure applies in the first instance to the District Judge making the possession order for an order of transfer up to the High Court under section 42 of the County Courts Act 1984. Such an order is "completely routine" according to Master Yoxall, whose decision forms the subject of this appeal. When that has been done, the proceedings are transferred to the High Court and the next step before an eviction can take place is for the landlord to apply to the High Court for permission to issue a writ of possession. The rule that governs such an application is CPR 83.13.
4. The QB Masters often have to deal with applications made under CPR 83.13. In this case, on 1 August 2016 Master Yoxall rejected submissions made by the Appellant (then acting in person) that the Respondent to this appeal (the Appellant's former landlord under an assured shorthold tenancy) had not complied with the requirements of the rule such that the writ of possession, permission for the issue of which had been given by Master McCloud on 8 July 2016, should be set aside.
5. The Appellant, still acting in person, applied for permission to appeal against the decision of Master Yoxall. Permission was granted by Slade J on 11 May 2017.
6. Since then the Appellant has secured, via the Bar Pro Bono Unit, the services of Mr Justin Bates and Mrs Amy Just to present his appeal. I am extremely grateful to them both for taking on the case and to the Bar Pro Bono Unit for making them available to represent the Appellant.
7. For reasons that will emerge, I am not wholly convinced that this appeal is other than academic, though the Appellant's continued liability for the costs of the hearing before the Master could be said to be a matter of significance to him if the Master was wrong to reject his application. However, the matter has been fully argued by Counsel with experience of the issues arising and, in those circumstances, I consider that I should address the arguments. A considered decision may be of assistance in other cases.
8. Before turning to the background and the competing arguments, I should refer to CPR 83.13.

CPR 83.13

9. The material parts of CPR 83.13 are as follows:

"(1) A judgment or order for the giving of possession of land may be enforced in the High Court by one or more of the following means—

(a) writ of possession;

…

(2) Subject to paragraphs (3), (5) and (6), a writ of possession to enforce a judgment or order for the giving of possession of any land will not be issued without the permission of the court.

(3) The court's permission is not required for the issue of a writ of possession in a possession claim against trespassers under Part 55 unless the writ is to be issued after the expiry of three months from the date of the order.

(4) An application for permission under paragraph (3) may be made without notice being served on any other party unless the court orders otherwise.

(5) …

(6) …

(7) …

(8) Permission referred to in paragraph (2) will not be granted unless it is shown—

(a) that every person in actual possession of the whole or any part of the land ('the occupant') has received such notice of the proceedings as appears to the court sufficient to enable the occupant to apply to the court for any relief to which the occupant may be entitled; …."

10. It is the meaning of CPR 83.13(8)(a) that falls for consideration in this appeal. The issue is the nature of the notice required to be given under that provision.

Background

11. On 7 February 2014, the Appellant became the assured shorthold tenant of the Respondent at a property in Watford which until his eviction he occupied with his wife and three children. That was for a fixed term of 6 months. A further assured shorthold tenancy was agreed in August 2014, also for 6 months.
12. On 19 January 2015, the Respondent served notice on the Appellant under s.21, Housing Act 1988. Section 21 gives a landlord an automatic right of possession without having to give any reasons once the fixed term has expired. On 30 November 2015, the Respondent issued a claim for possession in the Watford County Court to which a Defence was filed. There was a contested hearing under the accelerated procedure before District Judge Sethi on 12 February 2016. The District Judge made a possession order requiring the Appellant and his family to give up possession on or before 11 March 2016, ordered the Appellant to pay costs of £359.50 on or before 11 March 2016 and refused the Appellant permission to appeal on the basis that there was no real prospect of success.
13. The Appellant sought permission to appeal from the Circuit Judge, but on 11 March 2016 HHJ Wilding refused permission to appeal on the papers. That application was renewed to an oral hearing which was dealt with in due course on 20 June 2016 by HHJ Harris.
14. In the meantime, however, on 23 March 2016 'The Burlington Group' (an HCEO) was instructed by the Respondent to undertake enforcement of the order and that company issued an application in Watford County Court seeking permission to transfer the case to the High Court for enforcement purposes pursuant to section 42(2) of the County Courts Act 1984. The application was said to be "so that a Writ of Possession may be issued in the High Court of Justice." A director of the company, Mr Jonathan Chatfield, said this in the Application Notice:

"We believe that all occupants of the property are fully aware of the Order made on the 12th February 2016 but they have not cooperated to date and have ignored the Order in question. In light of this they are unlikely to vacate unless required to do so.

We are seeking this leave to enforce in the High Court as we are informed by the Creditor that they wish to mitigate their loss and accelerate the eviction process. We have provided Notice to the occupants of the intention to transfer execution to the High Court and believe that all of the occupants are aware of the proceedings in accordance with the CPR.

Having provided Notice we do not feel that the Defendant will be prejudiced by enforcing in the High Court and we will provide further Notice of Eviction if so ordered by this Court."

15. The Notice to the occupants to which Mr Chatfield referred was contained two letters (sent by first-class post) in identical terms addressed respectively to "The Occupiers" and "Mr Michael Partridge and 1 other" as follows:

"We are writing to formally provide you with notice of the following:

1. Our application to Watford County Court for leave to transfer the enforcement of the Order to the High Court under Section 42 of the County Court Act 1984. This allows a High Court Enforcement Officer to obtain possession of the property rather than a County Court Bailiff, and

2. Our application in accordance with Civil Procedure Rules 83.13(8) to the Queen's Bench Division of the High Court for permission to issue a Writ of Possession following permission from the County Court under Section 42 of the County Court Act 1984 as stated above.

We strongly recommended that you obtain independent legal advice but please do contact this office if you have any questions regarding the impending eviction."

16. The Respondent did at one stage say that he had not received the letter addressed to him. Master Yoxall rejected that suggestion and no formal issue has been raised on the appeal about that conclusion. It is a conclusion to which I would have come had the issue been raised before me for the same reasons as those given by the Master. I proceed, therefore, on the basis that he did receive the letter.
17. Paragraph 2 of the letter suggests that an application to the Queen's Bench Division for permission to issue a writ had also been made (in addition to the application to transfer up), but that was not correct since that application was not in fact made until 8 July 2016. Nonetheless, it is argued on behalf of the Respondent that it gives notice of an intention to make such an application. The obvious inference from it (taken either alone or in combination with the final paragraph) is that such an application will be made.
18. On 4 April 2016 HHJ Wilding adjourned the application to transfer the proceedings to the High Court and listed it for hearing immediately after the renewed application for permission to appeal was heard. Both parties were represented by Counsel and HHJ Harris considered both applications on 20 June 2016. He rejected the application for permission to appeal and ordered the transfer of the proceedings to the High Court. The order giving effect to his decision was dated 6 July 2016.
19. It appears that, acting in person, the Appellant lodged an Appellant's Notice shortly thereafter seeking to appeal against the order for transfer up, but did so in Watford County Court. It should have been issued in the High Court. That appeal has never proceeded further although the Appellant has lodged recently a belated application in the High Court for an extension of time to pursue the appeal.
20. In light of the order of HHJ Harris, on 8 July 2016 'The Burlington Group' issued a without notice application in the QBD for an order under CPR 83.13(8) permitting the issue of a writ of possession to enforce the possession order which was granted by Master McCloud that same day. The order recorded what Mr Chatfield said in a witness statement of that date, namely, that "notice of this application has been given to each and every person in actual possession of the whole or part of the said land, namely Mr Michael Partridge and 1 Other and "The Occupiers" by notice in writing on 23rd March 2016 by first class prepaid post and that no application for relief has been made by any such person". On that basis Master McCloud declared herself satisfied that it had been shown that "every person in actual possession of the whole or part of the said land … has received such notice of the proceedings as appears to the court to be sufficient to enable the occupants to apply to the court for any relief to which the occupant may be entitled" and accordingly proceeded to give permission for the issue of a writ of possession which could be sealed.
21. On 12 July 2016 the writ was executed and the Appellant and his family were evicted from the premises. They had received no notice of the arrival of the enforcement agency personnel.
22. On 15 July 2016 the Appellant applied to Master McCloud on a 'without notice' basis asking that she set aside her order of 8 July. She stayed any further enforcement pending an 'on notice' hearing of the Respondent's application. That hearing took place before Master Yoxall on 1 August 2016.

Master Yoxall's decision

23. The Appellant argued before Master Yoxall that what was required to comply with CPR 83.13(8)(a) was actual notice of the hearing to apply for permission to issue a writ of possession. In other words, in this case he submitted that he should have received notice of the application made to Master McCloud on 8 July 2016. He argued that the letter referred to in paragraph 15 above was insufficient to comply with the rule.
24. Master Yoxall rejected that proposition. In his ex tempore ruling he referred to the phraseology of the rule and said that what is required under present practice is not "actual notice of a hearing of the application to apply for permission", but notice of the "proceedings afoot in relation to making an application to apply for permission to issue a writ of possession". He expanded on what a Master will normally look for when considering such an application in the following way:

"… what is required is notice of the proceedings and it must be as appears sufficient to the court to enable an occupant to apply to the court for relief. So a Master looking at an application for permission in practice first of all looks to see if the defendant tenant was present at the proceedings. If a defendant was not present at the proceedings, then clearly one must be alert to the possibility of applications being made to set aside the order made by the court in the tenants' absence and, equally, one must be alert to the tenant having an opportunity to apply for a stay of execution. (Or possibly, as has been said in argument although I am not entirely sure about this aspect, to apply for an injunction in the nature of declaratory relief that no further steps should be taken by the landlord). The crucial question that the court has to ask itself: has the tenant received notice of the proceedings as appears to the court sufficient to enable the occupant to obtain relief. If the tenant has had notice of proceedings to apply to the court for permission to issue a writ and that notice is sufficient to enable the occupant to apply to the court for a new relief, then that is all that is required …."

25. In this case he said that "Master McCloud was amply justified in making the order that she made" for the following reasons:

"There was a possession order made back in February 2016 to give possession … on 11 March 2016. The defendant was present; there was an appeal. So evidently the defendant tenant in this case had sufficient opportunity to make applications to the court and to protect his position. Then once the appeal was dismissed and the order for transfer was made, bearing in mind [the] letters which had been … served … that is sufficient notice within the rules. [The defendant] had ample notice to know he had lost his appeal and that … the next step was going to be as stated in the letters, notice to apply for permission."

26. The Master had been referred to Secretary of State for Defence v Helen Nicholas [2015] EWHC 4064 (Ch), a decision of Rose J, which he acknowledged to be "a decision which supports a contrary view". I will refer to that decision below.
27. The Master said that his view of the effect of the rule was "borne out by current practice and by [Practice Form] 92". Pursuant to the Senior Master's Practice Note dated 21 March 2016, it is noted that the Civil Procedure Rule Committee sub-committee on court forms had, inter alia, drafted a new form of draft order (PF92) giving permission to enforce an order for possession of land in the County Court (other than a claim against trespassers under Part 55), which make it clear that applications for such permission must provide evidence to satisfy the judge determining such application that the requirements of Rule 83.13(8) are met. Part of the preamble of the draft order which should be used when granting permission to issue a writ requires it to be recorded that the Judge granting permission has read -

(i) the judgment giving possession of land; and

(ii) the County Court order that ordered proceedings be transferred under s.42(2) of the County Court Act 1984; and

(iii) A witness statement "whereby it is stated that notice of this application has been given to each and every person in actual possession of the whole or part of the said land, namely (state the names of the persons to whom notice has been given) by notice in writing by (state the date and means by which each such notice was given) and that no application for relief has been made by any such person."

28. The witness statement must refer to "notice of this application" and the application is identified in the first part of the preamble to the order as follows:

"UPON THE APPLICATION by … by application notice dated … for permission to issue a Writ of Possession under Rule 83.13(2)"

29. One of the recitals in the draft order is that the court is satisfied that it has been shown "that that every person in actual possession of the whole or any part of the said land ("the occupant") has received such notice of the proceedings as appears to the court sufficient to enable the occupant to apply to the court for any relief to which the occupant may be entitled." It will be noted that (iii) above indicates that "notice of this application" may be given by some form of "notice in writing" (that must be identified in the witness statement) and that it is not specified that formal notice of the application is required to be served.

The meaning of CPR 83.13(8)(a)

30. Since the CPR represented at their inception a new procedural code, it is ordinarily not appropriate to look to the previous Rules of the Supreme Court (the 'RSC') for guidance on the interpretation of the CPR: see, e.g., Godwin v Swindon Borough Council [2002] 1 WLR 997, per May LJ at [42]. However, it has also been said that authorities under the RSC remain of persuasive authority on the construction of the CPR, albeit they are not binding: Biguzzi v Rank Leisure plc [1999] 1 WLR 1926; Deutsche Bank AG London Branch v Petromena ASA, etc., [2015] EWCA Civ 226. Where, as in this case, there is no reason to suppose that any significant change in practice was intended by the introduction of the CPR, the persuasive quality of the earlier authorities may arguably be the greater.
31. My attention has been drawn by Mr Maltz to the fact that CPR 83.13(8)(a) "was lifted directly from RSC, O.45, r.3." That provided as follows:

"3(1) Subject to the provisions of these rules, a judgment or order for the giving of possession of land may be enforced by one or more of the following means, that is to say –

(a) writ of possession …

(2) A writ of possession to enforce a judgment or order for the giving of possession of any land shall not be issued without the leave of the Court except where the judgment or order was given or made in a mortgage action to which Order 88 applies.

(3) Such leave shall not be granted unless it is shown –

(a) that every person in actual possession of the whole or any part of the land has received such notice of the proceedings as appears to the Court sufficient to enable him to apply to the Court for any relief to which he may be entitled, and …."

32. Subject, therefore, only to a minor and inconsequential modification of the words, the rule in the CPR was indeed a "direct lift" from the RSC. The notes at paragraph 45/3/7 in the 1999 White Book (and thus immediately prior to the introduction of the CPR) said this under the heading "Notice of the proceedings":

"Where the defendant is the only person in possession of the premises the plaintiff must give the defendant notice of the judgement or order, and call upon him to give up possession under the judgment or order. Where there are other persons (not parties to the proceedings) in actual possession it is also necessary to serve them with such written notice as will give them a reasonable opportunity of applying to the Court.

The combined effect of O.45 and O.46 is that notice of an application for a warrant of possession must be given to a tenant and the writ of execution should not be issued without the tenant having an opportunity to apply to the court for relief (Leicester City Council v Aldwinkle (1991) The Times, April 5, CA).

It should be observed that the rule does not confer any new rights on a tenant or other occupier. Its only effect is to give those who may apply for relief an opportunity of doing so …."

33. I will return to the significance of the Aldwinkle case below (see paragraph 57), but Mr Maltz invites attention to the first of those three paragraphs which draws a distinction between the position of a defendant who is the only person in possession (where the claimant need give only notice of the order obtained and a request that possession is given up in accordance with the order) and another person or other persons "in actual occupation" who must receive "such written notice as will give them a reasonable opportunity of applying to the Court".
34. The practice then, as indeed it is now, was that the application for leave to issue the writ of possession was made ex parte upon affidavit, the affidavit complying with the requirements of paragraph 3: paragraph 45/3/5 of the 1999 White Book.
35. For completeness, the 2017 edition of the White Book contains the following paragraph at paragraph 83.13.9:

"Where the defendant is the only person in possession of the premises the claimant must give the defendant notice of the judgment or order, and call upon that person to give up possession under the judgment or order. Where there are other persons (not parties to the proceedings) in actual possession it is also necessary to serve them with such written notice as will give them a sufficient opportunity of applying to the court. The effect of r.13(8)(a) is that notice of an application for a writ of possession must be given to every occupant of all or part of the property/land and the court will not grant permission without the occupants having an opportunity to apply to the court for relief (Leicester City Council v Aldwinkle The Times, April 5, 1991, CA). Failure to give notice of the application has been held to provide a sufficient ground upon which the court will set aside a writ of possession after it has been executed (see r.83.13(2) and para.83.13.6 above and Secretary of State for Defence v Nicholas [2015] EWHC 4064 (Ch)).

It should be noted that the rule does not confer any new rights on a tenant or other occupier. Its only effect is to give those who may apply for relief a sufficient opportunity of doing so. PF 92, introduced in April 2016, reinforces this, as it contains a standard paragraph that the court is satisfied that every person in occupation of the whole or part of the land has received such notice that "appears to the court sufficient to enable the occupant to apply to the court for any relief to which the occupant may be entitled" …."

36. The 2015 White Book, to which the attention of Rose J was drawn in Secretary of State for Defence v Nicholas (see paragraphs 37-44 below), contains a paragraph in identical terms save that the final sentence of the first paragraph quoted in paragraph 35 above did not, of course, appear and the second paragraph ended after the first two sentences.
37. The case of Secretary of State for Defence v Nicholas that came before Rose J was a sequel to Secretary of State for Defence v Nicholas [2015] 1 WLR 2116. In the latter case, the Court of Appeal had held that Mrs Nicholas' licence to occupy premises that, prior to their divorce, she had occupied with her husband (a serving RAF officer) had been validly terminated by the Ministry of Defence and that the fact that Crown licensees had no security of tenure did not amount to unlawful discrimination as a result of Articles 8 and 14 of the ECHR. That decision was given on 4 February 2015. Mrs Nicholas was ordered to give the respondent possession of the property by 31 March 2015. Her application for permission to appeal was refused by the Court of Appeal and her application for an injunction to restrain the respondent from seeking to evict her from the property pending the outcome of her application for permission to appeal further was also dismissed.
38. Mrs Nicholas sought and was granted an extension of time for making an application for permission to appeal to the Supreme Court until 28 days after the final determination of her application for public funding, the making of which she had intimated to the Supreme Court. This occurred before 31 March 2015. A letter from the Supreme Court advised her to "notify the other parties that you have been granted this extension of time". It is unclear whether she or her solicitors did so, but it was clear that any such notification did not come to the attention of the person dealing with the matter on behalf of the Secretary of State and an application dated 11 June 2015 was made to a Deputy Master in the Chancery Division for permission to issue a writ of possession and an order was made on the papers granting permission on 24 June. The witness statement relied upon in support of the application said this:

"To the best of my knowledge and belief the defendant has not applied for permission of the Supreme Court to appeal further to that court and there is in any event no order in force staying the order for possession."

39. In fact the application for permission to appeal to the Supreme Court was still outstanding at that time.
40. The possession order was executed pursuant to the warrant of possession on 11 August and Mrs Nicholas was evicted.
41. During the afternoon of 24 August 2015, and thus during the Long Vacation, Rose J heard an application on behalf of Mrs Nicholas for an order setting aside the order of the Deputy Master. Two grounds were relied upon, the first being that the evidence on which the order was based was incomplete because it did not refer to the still pending potential application for permission to appeal to the Supreme Court. Rose J concluded that the Deputy Master was unlikely to have made the order that he did make "if he had been aware that time had been extended by the Supreme Court for an application for permission to appeal and that public funding was being sought". She held that the order should be set aside on that ground. The second ground relied upon was that no notice of the application for permission to issue a writ of possession was given to Mrs Nicholas or her solicitors.
42. As to that, the claimant had relied upon the proposition that Mrs Nicholas was a trespasser and, as a result, CPR 18.13(4) did not require the giving of notice. This was erroneous. As Rose J said, whether Mrs Nicholas was a trespasser or not would be determined by the Supreme Court if the case arrived there and so CPR 18.13(4) did not become engaged. The claimant sought to argue, as an alternative proposition, that it was not necessary under CPR 18.13(8)(a) for Mrs Nicholas to have been given notice of the application for the writ of possession "because she had notice of the decision of the Court of Appeal and the order of the Court of Appeal requiring her to vacate the premises by 31 March." Rose J said that that was not how she read that provision. She noted that Mrs Just (who was appearing for Mrs Nicholas on that occasion) had drawn her attention to the paragraph of the White Book identified in paragraph 36 above and to Jephson Homes Housing Association Ltd v Moisejevs (2001) 33 HLR 54 for support for the proposition that notice of the application for a writ of possession should be given. Rose J referred to what Simon Brown LJ, as he then was, said in that case at [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."

43. Rose J held that notice should have been given to Mrs Nicholas and those representing her and that the Deputy Master's order made should be set aside on that basis too. She ordered that Mrs Nicholas be provided with a set of keys to the property to allow her access, that the claimant should not re-let the property until after any further application for possession on notice was determined and the writ lawfully executed.
44. It is, of course, this second ground for Rose J's decision that has now been adopted as the source of the proposition that now appears in the passage in the White Book quoted in paragraph 35 above.
45. Mr Bates and Mrs Just submit that the decision on this ground was binding on Master Yoxall and, unless I am persuaded that it is plainly wrong, I should also follow it.
46. I will return to this case in the discussion below, but would simply record, for the sake of completeness, that Mrs Nicholas was refused permission to appeal to the Supreme Court on 23 December 2015 because the Supreme Court decided that the application did not raise an arguable point of law.

Discussion

47. Untrammelled by authority, the issue that needs to be addressed by a Master considering a "without notice" application for permission to issue a writ of possession is simply whether he/she is satisfied that "every person in actual possession of the whole or any part of the land … has received such notice of the proceedings as appears to the court sufficient to enable the occupant to apply to the court for any relief to which the occupant may be entitled" (my emphasis).
48. The underlined phraseology suggests that what may constitute sufficient "notice of the proceedings" for the purposes of the rule may vary from case to case and that the court simply needs to be satisfied that any "occupant" knows sufficient about the "proceedings" to be able to apply for appropriate relief. The words of the rule do not expressly require "notice of the application for permission to apply for a writ of possession" to be given to anyone. Indeed the well-established practice is that the application is made on a "without notice" basis: by way simply of example, it occurred in the present case and in the case of Secretary of State for Defence v Nicholas.
49. This reading of the rule would suggest that some degree of flexibility is permitted in the court's approach and would explain why the Master concluded in this case that the Appellant's full participation in the proceedings before the District Judge and then before the Circuit Judge was, together with the letter of 23 March 2016, sufficient notice of the proceedings to enable him and any member of his family to apply for relief: see paragraphs 24-25 above. From the moment that the appeal failed, the Appellant would have known that he and his family were required to vacate the property pursuant to an order of the court. The letter would have given notice of an intention to apply for permission to issue a writ of possession even if it said (erroneously) that the application had been made and the Appellant must have known that he and his family were "at risk" of eviction at any time thereafter. Indeed, although the letter was inaccurate in this respect, the fact that it stated that such an application had been made should, it might be thought, have galvanised the Appellant into making an application for relief if he truly thought such relief might be granted. That letter, however, even as drafted, goes one stage further than the position of simply treating the Appellant as the only person in the premises, giving him notice of the order for possession and calling upon him to give up possession under the order as the notes in the White Book seem to indicate are sufficient when there is a sole defendant to the claim for possession: it speaks of the application for the writ and the "impending eviction".
50. Mr Bates, however, drew attention to the fact that an application for permission under paragraph 3 of the rule (namely, where three months have elapsed since the date of an order for possession against trespassers) may be made without notice unless the court orders otherwise. He says that this means that there is an express exception created in the rule to what he argues is the otherwise general need within the rule for notice of such an application.
51. The initial superficial attraction of this submission subsides when the much more general and permissive terms of CPR 18.13(8) are considered (i) by way of contrast to the words of paragraph 3 and (ii) in light of the proposition that had the rule-makers thought it necessary for notice of the application for permission to issue a writ of possession to be made on notice, the easiest thing would have been to say so expressly. So far as paragraph 3 is concerned, permission to issue a writ of possession is not required at all when the order has been made against trespassers and is only required in that situation if three months have elapsed since the order was made - and even in that case the normal rule will be that no notice of the application is required unless the court orders otherwise.
52. This, as it seems to me, is of a piece with the rest of the rule: the "normal" rule for all other possession orders (save those arising under paragraph 6 – possession orders in mortgage claims) is that permission to issue a writ of possession is required, but the application for permission is made without notice. If the Master is not satisfied that all occupants have had sufficient notice of the proceedings to enable them to apply for any relief to which they may be entitled (or, perhaps, where doubts exist as to the adequacy of the notice), he/she will either simply refuse the application or, more likely, direct that notice of the application is served on the occupant or occupants. Equally, if the application is granted on the basis of insufficient information concerning the state of the proceedings (as in Nicholas, for example), the claimant runs the risk of the eviction being set aside and the tenant being allowed to regain possession with all the consequent financial issues. There is obviously an onus on the applicant for permission to disclose to the court any basis for thinking that an occupant may have some ground for relief as there is in any application for an order which is made without notice.
53. Mr Bates makes the powerful submission that those who are to be evicted should be given notice of the time and date of when they are to be evicted. It would enable them to leave beforehand and/or make arrangements for, for example, children's attendance at schools and would, in any event, prevent a family being put out on the street without notice. However, the answer to this has to be that giving notice of an application for permission to apply for a writ of possession does not of itself give such notice and, in any event, where there has, as here, been full participation in the possession proceedings, the tenant (and any associated family occupants) must know that "the clock is ticking" towards eviction before long after the order has been made and that steps for voluntary removal need to be taken in the absence of some positive application for relief being commenced. The burying of heads in the sand is not a sensible option. Any relief sought prior to eviction would be relief from the enforcement proceedings, not relief by way of defence to the possession claim: that issue would have been disposed of. Furthermore, the other side of the policy coin is that the landlord has legitimately obtained a possession order from the court and is entitled to the effective return of his property in accordance with that order.
54. Mr Sharghy has drawn my attention to the first sentence of paragraph 83.0.2 of the 2017 White Book which is in the following terms:

"It is still a feature of the civil justice system that judgments are not enforced automatically by the court. It is for the judgment creditor to decide when and how to enforce the judgment."

55. That adds some additional force to the suggestion that notification of the precise date and time for eviction is not required as a matter of law or practice no matter how desirable it might, in some circumstances, appear to have been.
56. I have already indicated the way in which Rose J came to the conclusion she did in Nicholas (see paragraphs 41-43 above). I respectfully understand the first basis for her decision which is entirely consistent with previous authority. However, but for her rejection of the argument I referred to at paragraphs 42-43 above (namely, that notice of the decision of the Court of Appeal and notice of the order it made was sufficient to comply with CPR 83.18(8)), I would have been inclined to say that where, as in that case, there is only one occupant, the provision of information such as that would be sufficient to meet the requirements of CPR 83.18(8). One might ask 'what more did Mrs Nicholas need to know?' She must have had appreciated from her own knowledge of the proceeding that eviction was "on the cards" from 31 March 2015 onwards and could have applied for relief if she thought she was entitled to it. However, if I am wrong about that, there is distinction between that case and this: in this case, in addition to the knowledge the Appellant gained from his active participation in all proceedings up to the conclusion of the hearing before HHJ Harris, there was at the very least an intimation of an intention to apply for permission to issue a writ of possession in the letter of 23 March 2016. Furthermore, as indicated above, the final paragraph of that letter heralded the "impending eviction" (see paragraph 15 above). In Nicholas no such warning was given. In my judgment, that would have been a sufficient basis for Master Yoxall to distinguish what would otherwise been a decision binding upon him.
57. What Master Yoxall did say was that Rose J appeared to have relied on the notes in the White Book for this particular part of her judgment. Indeed that would appear to be so. That fact also suggests that she was not taken to the underlying authorities which, given that this was an urgent application in the vacation in respect of which an ex tempore judgment was given, is hardly surprising. With some diffidence, I venture to doubt that the case of Leicester City Council v Aldwinckle, which finds prominence in the notes in the White Book, is authority for the proposition that a failure to give notice of the application for a writ of possession can of itself be a reason for setting aside a writ of possession or that all occupants must be given notice of the application for permission to issue a writ of possession if that is intended to mean service of the actual sealed application. The case is still referred to in the notes to the White Book by reference to the report in The Times. I have not seen that report, but my attention has been drawn to the full report that appears in the Housing Law Reports at (1992) 24 HLR 40.
58. The defendant was the secure tenant of a flat owned by the claimant local authority. In 1983, the claimant obtained an order for possession against the defendant suspended on the basis that she paid £10 per month plus the current rent. In about 1988, she became ill and fell into further arrears. She was away from her flat for long periods whilst attending hospital in London for operations and other treatment. In April 1989, she contacted the claimant's Housing Benefit Department and completed and returned claim forms. At that time she also spoke to her solicitors, who recorded the wrong address for her in London. In May 1989, the claimant contacted her solicitors and told them of their intention to seek a warrant for possession. The solicitors replied saying they were not in communication with her and asking that no steps be taken until they had contacted her and that they believed she had been in contact with the Housing Benefits Department. The claimant's response was that she had not been in contact with the Housing Department and that "there was really no alternative than for this matter to proceed to a possession warrant". (It is possible that there was a confusion between the Housing Benefit Department, to which the defendant had spoken by telephone, and the Housing Department which dealt with possession proceedings. In June 1989, the Housing Benefit Department received an application from the defendant and a letter in which she particularised her illnesses and treatments and her address in London and an address in Wirral where she expected to convalesce until about the end of October 1989. On July 18, 1989, the claimant (through its Housing department) applied for a warrant of execution which was issued on July 31, 1989 and executed on August 15, 1989. When the defendant returned to her flat in November 1989 she found all her furniture and personal belonging had been taken in execution of the warrant. She immediately applied to set aside the warrant for possession. In December the Registrar granted the application. The claimant appealed and the Judge allowed the appeal. The defendant appealed from the Judge's order on the basis that he should have held that the warrant of possession was defective and a nullity because it was issued in breach of the rules of natural justice.
59. It is to be noted that the County Court Rules, unlike the RSC, did not contain any provision whereby the tenant was to be given notice of the application for a warrant of possession. The relevant rule simply provided that an order for the recovery of land "shall be enforceable by warrant of possession" and that the person "desiring a warrant of possession to be issued shall file a request in that behalf."
60. The Court of Appeal held that it could not write in to the provisions of the County Court Rules a requirement that notice be given before a warrant of possession is obtained. Leggatt LJ said this:

"It is true that the Rules of the Supreme Court require notice to be given, and leave of the court obtained, before a warrant of possession is applied for; but the County Court Rules do not. The court cannot write in the missing requirement, because, as Lord Hailsham said in Pearlman v. Varty [1972] 1 WLR 534 at p.540, it is not the function of the courts "to form first a judgment of an Act of Parliament and then to amend or supplement it with new provisions so as to make it conform to that judgment"."

61. The provision that the Court of Appeal was referring to in the RSC was, of course, O. 45, rule 3 (see paragraph 31 above). That merely required that every person in actual possession of the whole or any part of the land "has received such notice of the proceedings as appears to the Court sufficient to enable him to apply to the Court for any relief to which he may be entitled" before the court would give permission for the issue of the writ. It did not specify that notice of the formal application for permission should be served on those occupants.
62. The Court of Appeal expressed the hope that the then County Court Rules were brought into line with the corresponding parts of the RSC. I have not been told whether that occurred prior to the promulgation of the CPR, but the present rule (which falls for interpretation in this case) is in all material respects identical to O.45, rule 3, of the RSC.

Conclusion

63. The test for deciding whether permission to issue a writ of possession should be granted following an order for possession, whether there is one occupant or more than one occupant of the relevant premises, is whether "every person in actual possession of the whole or any part of the land … has received such notice of the proceedings as appears to the court sufficient to enable the occupant to apply to the court for any relief to which the occupant may be entitled."
64. The "notice of the proceedings" referred to does not necessarily require either the service of the formal notice of application for permission or even a more informal intimation by letter or other communication that the application will be heard on a particular day or at a particular time. Either would be sufficient, but neither is required by the rule provided that the notice is sufficient to enable the occupant(s) to apply for relief.
65. Where there is a sole occupant who is the subject of the possession order and he/she has full knowledge of the possession proceedings, a reminder of the terms of the court order and a request that possession is given up under the order is, generally speaking, sufficient notice within the rule. This is consistent with the practice referred to repeatedly in the White Book that "[where] the defendant is the only person in possession of the premises the claimant must give the defendant notice of the judgment or order, and call upon that person to give up possession under the judgment or order" (see paragraphs 32 and 35 above). If there was any doubt about whether this is sufficient, it could be resolved by saying in the same communication that permission to apply for a writ of possession will be sought from the court in due course if possession is not delivered up and that eviction will follow.
66. Where the sole defendant has played no part in the possession proceedings, a letter or other suitable form of communication containing all the above information should ensure that sufficient notice within the rule has been given.
67. Where there are occupants other than the defendant to the possession proceedings known to occupy the property, then a letter addressed to them (if known by name) or to "the occupants" (if the names are not known) in similar terms to that referred to in paragraph 15 above is required, it being necessary to include reference to the intention to apply for permission to issue a writ of possession if possession is not delivered up by the date prescribed in the order and that eviction will follow.

Result in this case

68. In my judgment, in agreement with Master Yoxall, the letter of 23 March 2016 constituted sufficient "notice of the proceedings" for the purposes of CPR 83.13(8) and he was right to dismiss the Appellant's application to set aside the order of Master McCloud.
69. It is not clear whether at the time of the hearing before Master Yoxall the Appellant had constituted his application to this court for an extension of time to appeal against the order of HHJ Harris to transfer up the possession proceedings. However, any such appeal would have been doomed to fail because there could have been no possible grounds upon which it could succeed. As Master Yoxall said, such an application and consequent order is "completely routine". The original appeal was plainly simply an attempt to delay the inevitable and the present application merely a device to try to show that there was a reason not to proceed to eviction. The position in Nicholas, where there was still a potentially "live" appeal to the Supreme Court, was different.
70. I have, of course, looked at this appeal on its merits. At the outset I said that I was not wholly convinced that this appeal is other than academic. The reason for saying that was that there was no suggestion that the Appellant was applying to be reinstated at the property. Mr Bates suggested that there was a reputational issue arising from the fact that the Appellant and his family were evicted. I do not consider that such an issue arises, but if it does, it was self-inflicted by simply ignoring the inevitable consequences of failing to comply with a court order.
71. Nonetheless, the case has enabled the ventilation of arguments concerning the practice to be adopted in this context and I am grateful to all Counsel for their assistance.