Improper vs Proper Practices Whilst Applying for Leave to Enforce an Order for Possession under the >6 Months’ Arrears Exemption

Apologies if this article seems like a rant (but coupled with useful information) but I won’t sit by while such practices are being utilised. I have seen and heard various versions of how applying for leave to enforce an Order for Possession under the >6 months’ arrears exemption can be fast tracked by some Enforcement companies who I will allow to remain anonymous at this time. Such corners cannot and should not be cut under any circumstances, one of the main “shortcuts” being utilised is including the request for leave to enforce under the arrears exemption in the High Court application for the Writ as it will potentially be dealt with quicker than sending the application for leave to the County Court (which is the correct process) but will typically take a bit longer…

Whilst High Court Enforcement companies are not (usually) permitted to offer formal legal advice, there is an understanding that our knowledge and experience of the processes involved means that we will offer an opinion / guidance to our clients. Where we do that, we absolutely must act with complete integrity and to quote C.S. Lewis we must absolutely “do the right thing all the time, even when it may work to our disadvantage”. We have an obligation to protect our client’s position where we are able to do so from any form of adverse claims, contempt of Court and adverse costs Orders.

The whole issue of cutting such corners bears huge similarities to the matter of Birmingham City Council v Mondhlani [2015] EW Misc B41 (CC) in which it was found that some enforcement companies were expediting transfers of Orders of Possession for non-trespass matters to the High Court by using the N293a certificate of judgment that is intended for transferring only monetary matters and Orders of Possession for trespass ONLY to the High Court in Order to avoid the cost and time implications of using the correctly defined process in CPR 83. This whole episode did not paint the industry in a good light and it pains me to see that clearly for some at least, the ignorant approach appears to remain!

THE PROBLEM

One of the main shortcuts to the process that I am aware of is as above, including the request for leave to enforce under the arrears exemption in the High Court application for the Writ as it will potentially be dealt with quicker than sending the application for leave to the County Court. This process is fundamentally wrong and goes against CPR 23.2. The CPR states as follows;

 CPR 23.2; Where to make an application

(1) The general rule is that an application must be made to the court or County Court hearing centre where the claim was started.

(2) If a claim has been transferred to another court, or transferred or sent to another County Court hearing centre since it was started, an application must be made to the court or the County Court hearing centre to which the claim has been transferred or sent, unless there is good reason to make the application to a different court.

(3) If the parties have been notified of a fixed date for the trial, an application must be made to the court where the trial is to take place.

(4) Subject to paragraph (4A), if an application is made before a claim has been started, it must be made to the court where it is likely that the claim to which the application relates will be started unless there is good reason to make the application to a different court.

(4A) An application made in the County Court before a claim has been started may be made at any County Court hearing centre, unless any enactment, rule or practice direction provides otherwise.

(5) If an application is made after proceedings to enforce judgment have begun, it must be made to the court or County Court hearing centre which is dealing with the enforcement of the judgment unless any enactment rule or practice direction provides otherwise.

 To pre-empt the argument that CPR 23.2(2) or CPR 23.2(5) would allow the application for leave to enforce under the arrears exemption as part of the High Court application for the Writ, this is not the case. Allow me to explain.

CPR 23.2(2) states that if the claim is transferred to another Court then the application must be made to the Court where the claim has been transferred. Even if you have an Order for Possession and have already obtained permission under Section 42 of the County Courts Act 1984 to transfer the enforcement to the High Court, that is all that has been transferred – the “enforcement” and NOT the “claim” itself. Therefore, further applications in relation to the claim, which will include applying for leave under the exemption, MUST be made to the originating County Court.

CPR 23.2(5) states that if the application is made AFTER proceedings to enforce have begun… Proceedings to enforce cannot begin until the High Court Writ has been issued and the Writ cannot be issued until the Court is satisfied that the exemption is met. Therefore this is equally not a justification.

In short there are no circumstances where the application for leave to enforce under the arrears exemption can be correctly and properly made to any Court other than the issuing Court that handled the claim for possession.

THE CORRECT PROCESS

The three things you currently need from the issuing Court BEFORE you can issue Writ of Possession are; An Order for Possession; Leave to transfer to the High Court for enforcement pursuant to Section 42 of the County Courts Act 1984; and leave to enforce under the exemption for rent arrears. If you only have the Order for Possession itself then there is no reason why both the request for leave to transfer to the High Court for enforcement pursuant to Section 42 of the County Courts Act 1984 and leave to enforce under the exemption for rent arrears cannot be made as part of the same application.

However, and as fully detailed above, if you already have both the Order for Possession and leave to transfer to the High Court for enforcement pursuant to Section 42 of the County Courts Act 1984 then the application for leave to enforce under the exemption for rent arrears MUST be made to the issuing Court prior to then issuing the Writ in the High Court and subsequently commencing enforcement action.

I trust this clarifies the process and / or helps in some way. If you have any questions on this or any other matter that I can assist with then please do not hesitate to contact me directly.

Jon Tatam

Head of Commercial and Property Services

Court Enforcement Services Ltd