Fair Warning

The procedural elements of enforcement of possession orders, whether by warrant in the County Court or writ in the High Court, were traditionally relatively settled areas of law.  That is, until recently.  Firstly Cardiff City Council v Lee (Flowers) [2016] EWCA Civ 1034 considered whether permission is required to issue a warrant of possession for breach of a suspended possession order; and latterly the High Court has considered another appeal, this time concerning the practice issues following the ‘transfer up’ of County Court cases to the High Court for enforcement.

The transfer up of a County Court possession order to the High Court for enforcement by a High Court Enforcement Officer will be a practice which is common knowledge to practitioners and advocates up and down the country.  It is often argued that it is quicker to enforce by this method and judgment creditors wish to mitigate their losses by quickly regaining possession of the property instead of waiting for a County Court bailiff’s appointment.

After a District Judge has made such an order pursuant to s.42 County Courts Act 1984, CPR 83.13(2) comes into play.  It provides that “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.”  An application must therefore be made to the High Court. 

The issue before Foskett J in Michael Partridge v Rakesh Gupta [2017] EWHC 2110 (QB) was what notice had to be given to a judgment debtor who remained in occupation of the land when permission to issue a writ of possession was being sought.

CPR 83.13(8) provides that:

(8) Permission will not be granted unless it is shown


(a) that every person in actual possession of the whole or any party 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.


The Appellant argued that CPR 83.13(8) required “actual notice of the hearing to apply for permission to issue a writ of possession.” 

The Respondent, conversely, submitted that the notice of proceedings could be a formal notice of hearing, but did not need to be – and that “some degree of flexibility is permitted in the court’s approach.”  They averred that they had complied with the requirement of CPR 83.13(8) by sending letters to the Appellant and “The Occupiers” indicating their intention to apply for permission to issue a writ. 

At first instance, Master Yoxhall agreed 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 explained that a Master considering an application under CPR 83.13(2) will look firstly at whether a judgment debtor has been present at the possession hearing and be alert that, if not, an application may be made to set aside the possession order made in the judgment debtor’s absence.  The Master needs to be satisfied that the judgment debtor is aware of the proceedings.

On appeal, Foskett J accepted that common practice – as permitted by CPR 83.13(3) – was for the judgment creditor to apply without notice and for the Master to turn his mind to the issues set out by Master Yoxhall.  He concluded, therefore, that formal notice of the hearing before the Master was not required.  Similarly, neither was “informal intimation by letter or other communication that the application will be heard on a particular day or at a particular time.” 

Foskett J gives some clear guidance (at paras. 65 – 67) to judgment creditors applying to the High Court under CPR 83.13(2) about precisely the nature of the notice which must be given to satisfy CPR 83.13(8):


1. Where there is a sole occupant who is subject of the possession order and has full knowledge of the possession proceedings (i.e. because they attended the possession hearing): a reminder of the terms of the court order and a request that possession is given up under the order would, generally, be sufficient. 


A ‘belt and braces’ approach would set out that permission to apply for a writ of possession will be sought if possession is not delivered up and that eviction will follow.


2. Where there is a sole occupant who is subject of the possession order but has played no part in 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.”


3. Where there are occupants other than the defendant: a letter addressed to them or to “The Occupants” setting out the terms of the order and “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.”


It appears therefore that best practice would involve – in all cases – reminding the occupants of their need to vacate in accordance with the court order and setting out that a failure to vacate will lead to an application for permission to issue a writ of possession and that eviction will follow.

As long as this notice is given – and in the application before the Master for permission under CPR 83.13(2), evidence is provided that the notice has been given – the Master should be able to satisfy him/herself that CPR 83.13(8) has been complied with and permission to issue a writ should be granted. 

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