Armstrong v Ashfield District Council, Court of Appeal - Civil Division, April 25, 2018, [2018] EWCA Civ 873

Resolution Date:April 25, 2018
Issuing Organization:Civil Division
Actores:Armstrong v Ashfield District Council
 
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Case No: A2/2015/4036

Neutral Citation Number: [2018] EWCA Civ 873

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

THE HON. MRS JUSTICE PATTERSON DBE

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 25/04/2018

Before:

LORD JUSTICE McFARLANE

LORD JUSTICE SALES

and

LORD JUSTICE LINDBLOM

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Between:

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Iain Colville and James Sandham (instructed by Hopkins Solicitors LLP) for the Appellant

James Carter (instructed by Ashfield and Mansfield Shared Legal Services) for the Respondent

Hearing date: 18 April 2018

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JudgmentLord Justice Sales:

  1. This is an appeal in a case concerning an order for possession of a residential property at 4 Stoneyford Court, Sutton in Ashfield, Nottinghamshire. This is social housing owned by the respondent and held by the appellant under a secure tenancy governed by Part IV of the Housing Act 1985. Although the events giving rise to this appeal occurred several years ago, it was explained to us that the appeal is not academic. For reasons which it is not necessary to explore, the appellant remains the tenant of the property.

  2. By virtue of section 82 of the 1985 Act, the appellant's tenancy could be brought to an end by the respondent obtaining an order of the court for possession of the property and by execution of that order: section 82(1A). In such a case the tenancy will end when an order for possession is executed: section 82(2).

  3. Execution of an order for possession involves the landlord applying for a warrant of possession in the county court (or for a writ of possession where the proceedings are in the High Court) and then the eviction of the tenant pursuant to the warrant of possession, if necessary by sending in the bailiffs to effect eviction. Ordinarily, the grant of a warrant for possession is a straightforward administrative act by the court resulting from a without notice application by the landlord, leading to the sending of a notice of eviction to the tenant. However, a court can direct that the decision whether to issue a warrant for possession should be made by a judge.

  4. In the present case the respondent brought a claim in the county court to terminate the tenancy, alleging that the appellant was in breach of the tenancy agreement in various respects and relying on various grounds set out in Schedule 2 to the 1985 Act to justify its termination. At trial before District Judge Millard the respondent made out its case for termination of the tenancy and obtained an order for possession as set out in his order dated 5 June 2013; however, that order was suspended in order to give the appellant an opportunity to improve his behaviour and to show he would comply with the terms of the tenancy for the future (``the June 2013 order'').

  5. So far as material, the June 2013 order was in these terms:

    ``1. The [appellant] do give the [respondent] possession of [the property] on or before 4.00pm on 4 July 2013.

  6. The order for possession is not to be enforced and the tenancy will continue so long as [the appellant] complies with clauses 6.2, 8.2 and 8.6 of his tenancy agreement, dated 11 September 2009.

  7. The [respondent] shall not be entitled to apply for a warrant for possession so long as the [appellant] complies with clauses 6.2, 8.2 and 8.6 of his tenancy, and if such application is to be made it must be in writing, served on the [appellant] and any hearing reserved to DJ Millard, if available.

  8. Paragraphs 1 to 3 inclusive of this order shall be discharged on 4 June 2014.''

  9. The appellant failed to take the opportunity to comply with the tenancy agreement and continued in breach of the relevant terms of it much as before. By letter dated 31 October 2013 the respondent wrote to the appellant to set out the further breaches of the relevant tenancy agreement terms on which it proposed to rely in seeking a warrant for possession and on the same date applied to the county court for a warrant for possession, which was issued. Although by proceeding in this way the respondent gave the appellant notice of what it proposed to do, it was a departure from what DJ Millard had directed should happen in para. 3 of the June 2013 order.

  10. The appellant was sent a notice of eviction dated 1 November 2013, stating that the eviction would take place at 10 am on 19 November 2013. He obtained the assistance of solicitors, who on 11 November 2013 issued an application to suspend the warrant for possession. An interim order was made on 18 November 2013 to suspend the warrant for possession.

  11. This left open to be resolved the issue whether the respondent was entitled to a warrant for possession in order to give effect to the possession order in paragraph 1 of the June 2013 order, on the grounds that it claimed that in the period since the order was made the appellant had failed to comply with the relevant terms in the tenancy agreement, or whether the stay of the warrant for possession should be made permanent. The county court could not accommodate a trial of that issue for some months. In December 2013 directions...

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