High Court of Justice in Northern Ireland Chancery Division Decisions

Britannia Building Society v. Gilmour [1999] NICh 13; [1999] NIJB 94 (25th May, 1999)

GIRI2691
1993 No 846

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

CHANCERY DIVISION

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BETWEEN:

BRITANNIA BUILDING SOCIETY

Plaintiff

and

1. NORMAN GILMOUR

(otherwise known as NORMAN ALAN GILMOUR)

2. ROSALEEN GILMOUR

(otherwise known as ROSALEEN BRIDGET GILMOUR)

Defendants

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JUDGMENT

GIRVAN J

1. By notice of motion dated 20 April 1999 the Britannia Building Society ("the plaintiff") seeks an order that -

1. the defendants be restrained from occupying and continuing to occupy the property known as 151 Tullyvar Road, Aughnacloy, County Tyrone, being the lands comprised in Folio 20742, County Tyrone ("the premises"); and

2. the defendants be restrained from trespassing on or entering upon or into possession of the premises.

2. By a previous order made by the Master on 14 October 1993 the defendants were ordered to deliver the premises to the plaintiff within 28 days of personal service. The order was served personally on the defendants on 17 November 1993. The plaintiff duly enforced the order through the Enforcement of Judgments Office ("the EJO") on 13 May 1997. It is not clear why it took so long for the previous order to be enforced. It appears that the Office was not able to hand over possession of the lands to the plaintiff until 4 February 1998. Thus it appears that more than 41/2 years expired between the making of the order and the actual recovery of possession. The plaintiff has been endeavouring to sell the land by public auction and when the estate agent visited the premises in January 1999 he discovered the persons identifying themselves as the defendants had gone back into possession of the land.

3. The defendants in their affidavits in opposition to the application indicated that they had handed over keys in respect of the premises on 4 February 1998 but they asserted that they had not vacated the premises and continued to live in them. The defendants recognise that they have no defence to the plaintiff's claim to possession of the premises and could not resist the plaintiff's right to sell the premises but it appears that they are now hopeful that they will be able to provide a sufficient fund to discharge the plaintiff's claim and thus avoid the necessity for a sale of the property.

4. The order of 14 November 1993 was a common form order for possession against mortgagors in default of mortgage obligations and the order included the usual liberty to apply. Mr Devlin on behalf of the plaintiff relied on that liberty to apply and contends that the court should at this stage make an order restraining the defendants from occupying and continuing to occupy the premises and from trespassing on them in order to give full effect to the order for possession which had been executed against the defendants in the past.

5. At an early time it was decided in the Court of Chancery that where the defendant was a person in possession of land and the plaintiff was in substance seeking to turn him out of possession and to give the possession to the plaintiff the proper procedure was to bring proceedings in ejectment at law (see Goodson v Richardson (1874) LR 9 Ch 221 at 227 citing Deere v Guest (1836) 1 My. and Cr. 516). This rule arose through special considerations relating to the recovery of land and does not apply where for example the plaintiff was in possession and complained of acts on the part of the defendant which interfered with his enjoyment or where the title was not in dispute (see generally Spry on Equitable Remedies 4th Edition at 381.)

6. The modern view seems to be that stated in the Australian case of Pedler v Washband (1949) QSR 116 (cited by Spry at 382), namely that a party should rely on his ejectment remedies if it would be unjust that the plaintiff should avoid those procedures by applying for an injunction. Whether an injunction should be refused on this ground is within the discretion of the court and depends on the extent to which the defendant or third party might be prejudiced or on other considerations. Spry at 382 states:

"If ejectment proceedings or proceedings for the recovery of land are duly taken and the plaintiff is successful there is no reason why there should not then be included in the order of court such injunctions as are necessary in order to protect the rights of the plaintiff that have been established."

7. In the context of the present case the issue of an injunction on the terms sought would be both just and effective. An order for possession was previously made. It was carried into effect in whole or in part through the EJO and the defendants have no right to remain in possession of the premises nor do they assert any claim entitling them to do so. They have no legal or equitable entitlement to continue to occupy or trespass on the lands. Accordingly I can see no reason why an order should not be made on the terms sought.

8. An order that a named defendant should deliver up possession of premises is an order in personam against the named defendant (see Manchester Corporation v Connolly [1970] Ch 420 and the decision in Northern Ireland Housing Executive v Magee [1995] NI 97 at 100). It is thus enforceable either through the judgments enforcement procedure or by committal for contempt since a breach of a personal order that possession be delivered up on a specified date is a contempt of court (see Northern Ireland Housing Executive v Magee [1995] NI 97 at 100g-j). Before the latter procedure could be adopted the plaintiff would have to effect personal service on the defendant of the order with a penal notice endorsed as required by Order 45 rule 5. In Danchevsky v Danchevsky [1974] 3 All ER at 934 the Court of Appeal pointed out that if there is a reasonable alternative method available for ensuring that a court order is obeyed which does not involve committing the contemnor to prison that alternative should be taken and in that case the court considered that the court order should have been enforced by a warrant for possession. While it is true that the court is slow to commit for contempt it must not be forgotten that the court order is intended to be obeyed timeously. If enforcement through the EJO is likely to lead to considerable delay and/or expense, for my own part, I can see no reason in principle why a plaintiff should not be able to bring committal proceedings. Clearly the court would be likely to give a recalcitrant defendant some opportunity to comply with the order before making an order for committal and in that sense actual committal is a weapon of last resort.

9. In this case the order did not contain the penal notice though the defendants' disobedience of the order after the initial enforcement would have justified the plaintiff in bringing committal proceedings.

10. Practitioners when arranging the service of orders for possession may in future consider it prudent to include a penal notice endorsed on the order. Such a penal notice endorsed on the order will enhance the position of the plaintiff in the event of disobedience of the order, a fortiori where the defendant breaches a possession order after its initial enforcement.

GIRI2691 1993 No 846

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

CHANCERY DIVISION

------

BETWEEN:

BRITANNIA BUILDING SOCIETY

Plaintiff

and

1. NORMAN GILMOUR

(otherwise known as NORMAN ALAN GILMOUR)

2. ROSALEEN GILMOUR

(otherwise known as ROSALEEN BRIDGET GILMOUR)

Defendants

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J U D G M E N T O F

GIRVAN J