Armstrong v Ashfield District Council [2018] EWCA Civ 873

Case No A2/2015/4036[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
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/04/2018
Before
LORD JUSTICE McFARLANELORD JUSTICE SALESLORD JUSTICE LINDBLOM
Between
David ArmstrongAppellantAshfield District CouncilRespondent
Iain Colville and James Sandham (instructed by Hopkins Solicitors LLP) for AppellantJames Carter (instructed by Ashfield and Mansfield Shared Legal Services) for RespondentHearing Hearing date: 18 April 2018
Judgment
[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[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. 2. 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. 3. 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. 4. Paragraphs 1 to 3 inclusive of this order shall be discharged on 4 June 2014.”
[6]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.[7]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.[8]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 were given by the court for trial of that issue to take place in a window between 23 June and 11 July 2014 (“the December 2013 directions”), i.e. after the 4 June 2014 date mentioned in paragraph 4 of the June 2013 order.[9]The trial came on in the county court before HHJ Pugsley on 25 June 2014. The appellant was represented by counsel different from the counsel appearing for him before us. No objection was raised at the hearing that the court had no jurisdiction to order the execution of the possession order contained in the June 2013 order, by reason that the date in paragraph 4 of the order had been passed. Instead, at the outset of the hearing, HHJ Pugsley considered and dismissed an objection on behalf of the appellant that the respondent could not rely on the warrant for possession it had obtained, because it had not correctly followed the procedure set out in paragraph 3 of the June 2013 order. HHJ Pugsley looked at the substance of the matter. He said:
“It is perfectly obvious what Judge Millard wanted was to ensure that before the order for possession was enforced there should be a judicial review of the legitimacy of ending the [appellant’s] possession by enforcing a suspended order he had made. That has been achieved, that is why we are here today …”
[10]After reviewing the evidence in the case regarding the further breaches of the tenancy agreement alleged by the respondent, HHJ Pugsley found that the respondent had made out its case that in the period since the June 2013 order down to the end of October 2013 the appellant had continued in material breach of the relevant terms of the tenancy agreement. There is no challenge to that part of his reasoning. Accordingly, HHJ Pugsley ordered that the appellant’s application to suspend the warrant for possession should be dismissed and that the warrant was properly issued. However, the judge ordered that it could not be executed before 10 July 2014, to allow the appellant time to appeal. This the appellant duly did, being granted further stays in relation to execution of the warrant for possession until after final determination of the appeal.[11]The appellant’s appeal was heard by Patterson J in the High Court. It was at this stage that the appellant, now represented by Mr Colville, raised as his primary ground of appeal a jurisdictional point in relation to the position at the time of the hearing before HHJ Pugsley, namely that at the time he made his order in relation to execution of the warrant for possession there was no extant order for possession, by reason of paragraph 4 of the June 2013 order and the effluxion of time. In the alternative, the appellant submitted that HHJ Pugsley had been wrong to dismiss his objection based on the respondent’s failure to follow the procedure set out in paragraph 3 of the June 2013 order.[12]Patterson J dismissed the appeal. In relation to the first ground of appeal, she held that the provision in paragraph 4 of the June 2013 order for automatic discharge of the suspended possession order did not, on the proper interpretation of that order, apply in circumstances where the appellant had breached the terms of the tenancy agreement during the period of the suspension of the possession order and in that time the respondent had made a valid application for a warrant for possession. As regards the alternative ground of appeal, she held that HHJ Pugsley had been entitled to look at the substance of the matter as he did, and to proceed to examine the merits of the respondent’s claim to be entitled to proceed to execute the warrant for possession it had obtained with a view to enforcing the possession order contained in the June 2013 order.[13]The appellant now appeals to this court with permission granted by David Richards LJ. Although there are three numbered grounds of appeal, Mr Colville accepts that in reality there are before us the same two grounds of appeal as were raised before Patterson J.

Discussion

[14]Mr Colville makes the basic point that the validity of a warrant for possession depends upon there being in place a valid order for possession. I agree. In the scheme of the relevant part of section 82 of the 1985 Act, in subsection (1A), the process for terminating a secure tenancy involves obtaining an order for possession “and … the execution of the order.” The issuing and execution of a warrant for possession are parts of the process of execution of the order for possession and depend upon there being a relevant order for possession in existence. If an order for possession has been discharged, there is no order in place which can be executed.[15]In my judgment, however, notwithstanding this, the appeal should be dismissed. That is essentially for the reasons given by Patterson J. As regards the first ground of appeal in relation to whether HHJ Pugsley had jurisdiction to make the order he did, I also consider that there are additional reasons why it should not be upheld.[16]Section 85 of the 1985 Act provides: “85.— Extended discretion of court in certain proceedings for possession.(1) Where proceedings are brought for possession of a dwelling-house let under a secure tenancy on any of the grounds set out in Part I or Part III of Schedule 2 (grounds 1 to 8 and 12 to 16: cases in which the court must be satisfied that it is reasonable to make a possession order), the court may adjourn the proceedings for such period or periods as it thinks fit.(2) On the making of an order for possession of such a dwelling-house on any of those grounds, or at any time before the execution of the order, the court may— (a) stay or suspend the execution of the order, or (b) postpone the date of possession, for such period or periods as the court thinks fit.(3) On such an adjournment, stay, suspension or postponement the court— (a) shall impose conditions with respect to the payment by the tenant of arrears of rent (if any) and rent unless it considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable, and (b) may impose such other conditions as it thinks fit.(4) If the conditions are complied with, the court may, if it thinks fit, discharge or rescind the order for possession.” (a) shall impose conditions with respect to the payment by the tenant of arrears of rent (if any) and rent unless it considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable, and[17]DJ Millard was exercising the court’s powers under section 85 in framing the June 2013 order as he did. The power of the court to frame an order for possession in proleptic terms under section 85 was confirmed by the House of Lords in Knowsley Housing Trust v White [2008] UKHL 70; [2009] 1 AC 636. Lord Neuberger of Abbotsbury gave the leading speech, with which the other members of the appellant committee agreed. At [97] he said:
“In my view, on a fair reading of section 85, it is open to the court to include a proleptic discharge provision in a suspended order for possession. The section should be construed, as far as permissible, to confer as much flexibility as possible on the court, and in such a way as to minimise future uncertainty and need for further applications. The section permits a proleptic discharge provision, in my view, not least because the court can always revisit the provision, effectively at the suit of the landlord, as already mentioned, if the terms of the suspension are not complied with. The wording of section 85(4), particularly if read with the practicalities in mind, does not preclude the court from effectively committing itself in advance to discharging a suspended order, provided that (a) certain conditions are complied with, and (b) neither the landlord (by applying for a warrant of possession) nor the tenant (by applying under section 85(2)) seeks, in the meantime, reconsideration of the terms of the discharge provision.”
[18]The June 2013 order has to be interpreted in the light of this legal framework. In my view, Patterson J was right to construe paragraph 4 of the June 2013 order as being predicated on the absence of some relevant event occurring before that date. That is to say, the true meaning of that paragraph, read in its proper context, is this:
“If the events referred to in paragraphs 1 and 3 have not occurred, paragraphs 1 to 3 of this order shall be discharged on 4 June 2014.”
Since the respondent had asserted a breach of the conditions in paragraph 2 of the June 2013 order in the period up to 31 October 2013 and on that basis had applied for a warrant for possession well before 4 June 2014, paragraph 1 of that order was not discharged by virtue of paragraph 4 of the order.[19]This interpretation of the June 2013 order is supported by consideration of the legal framework in which it was made. Under section 85(4), a proleptic order for discharge of an order for possession ought only to take effect if the conditions specified under section 85(3) are complied with during the period of suspension of the order. But the case which the respondent wished to advance here, and the claim which it made by applying for a warrant for possession, was that there had been a violation of those conditions during the period of suspension, with the result that the possession order should be carried into effect rather than being discharged pursuant to paragraph 4 of the June 2013 order. To expand upon a point made by Patterson J in her judgment, if one construed paragraph 4 as having effect so as automatically to discharge the possession order on 4 June 2014, even though the respondent landlord had made a claim before then that the conditions of suspension had been breached but the court had not yet been able to have a trial of that issue, the respondent would be deprived of the benefit of the protection of having the tenant made subject to the discipline of the conditions in paragraph 2 of the order for the period of the suspension whenever a court was not immediately in a position to determine that issue (that is to say, in practically every case). It is not a tenable interpretation of paragraph 4 of the order to give it this effect. It would mean that the protection for the landlord would depend upon the vagaries of when a hard-pressed county court might be able to find the judicial resources to determine the issue of alleged breach of the relevant conditions. The effect of the order would depend upon wholly adventitious matters outside the control of either of the parties. That plainly was not the intention. The interpretation preferred by the judge and as explained above is, in context, the more natural one.[20]That interpretation is also supported by Lord Neuberger’s statement of the position in the Knowsley Housing Trust case, set out above. As he explains, a proleptic discharge provision is not precluded by section 85(4) provided that(a) certain conditions are complied with and(b) neither the landlord nor the tenant seeks before the end of the period of suspension reconsideration of the discharge provision, i.e. by taking a relevant procedural step to achieve that. In my view, Lord Neuberger plainly had in contemplation that compliance with the relevant conditions on the part of the tenant was required during the term of the suspension in order to provide justification for the continued suspension of the possession order and its eventual proleptic discharge at the end of the period. This is inconsistent with the appellant’s proposed interpretation of the June 2013 order, which would mean that for the purposes of enforcement of the suspended possession order the appellant tenant could in effect ignore the obligations imposed on him by the court during the latter period of suspension of the order, on the basis that the respondent landlord would have no hope of getting a claim of breach of the conditions decided in time before the discharge provision had effect.[21]In the present case, the conditions stipulated by Lord Neuberger for a proleptic discharge provision to take effect were not satisfied:(a) the respondent claimed that the appellant had failed during the period of suspension of the possession order to comply with the conditions imposed by the court as the basis for that suspension of the order for possession in favour of the respondent; and(b) the respondent took a relevant procedural step before 4 June 2014 to assert that claim by issuing its application for a warrant for possession. In these circumstances, Lord Neuberger’s statement indicates that there would need to be a trial of the issue of alleged breach of the conditions during the period of the suspension of the possession order, not that there should be a discharge of the possession order if it transpires that a trial cannot be arranged before the end of the period of suspension. The June 2013 order should be interpreted accordingly.[22]On this interpretation of the June 2013 order, the order for possession in paragraph 1 had not been discharged by virtue of paragraph 4 and HHJ Pugsley had jurisdiction to proceed to determine the merits of the respondent’s claim to be entitled to rely upon the warrant for possession which had been issued.[23]This is sufficient to dispose of the appeal in relation to the first ground of appeal. However, even if this interpretation of the June 2013 order were wrong, I consider that there are two additional reasons why the first ground of appeal should be rejected. First, the purpose of the December 2013 directions was to make provision for a trial of the merits of the respondent’s claim to be entitled to rely on the warrant for possession and to ensure there was a determination by a judge whether the eviction of the appellant should proceed. The date for trial set in the directions was after 4 June 2014. Hence, if there was any need for an extension of the deadline in paragraph 4 of the June 2013 order until after determination of the respondent’s claim to rely on the warrant for possession and the appellant’s counterclaim for a final stay of the warrant for possession, it was necessarily implicit in the December directions that the deadline was so extended. The court is not to be taken to have made an order for directions for a trial to take place which (according to the appellant’s argument) could have no practical effect.[24]Secondly, even if the December 2013 directions are not to be interpreted in this way, this court has power to exercise the powers of the courts below (see CPR Part 52.10 old numbering, as applicable for this appeal - now CPR Part 52.20) and under CPR Part 3.1(2)(a) has power “to extend or shorten the time for compliance with any rule, practice direction or court order (even if any application for extension is made after the time for compliance has expired)”. This appeal has proceeded on the basis that this provision or equivalent is taken to be applicable in the county court. Mr Colville says that the respondent should have applied for an extension of the deadline in paragraph 4 of the June 2013 order before it expired and that it is now too late and the court has no power to extend it under CPR Part 3.1(2)(a). Paragraph 4 provided that the possession order in paragraph 1 of the order was discharged on 4 June 2014 so no relevant order existed at the time of the hearing before HHJ Pugsley and it was not open to the county court at that stage, and is not open to us now, to exercise a power of extension of that deadline retrospectively under CPR Part 3.1(2)(a).[25]I do not accept this. CPR Part 3.1(2) provides wide powers for management of cases and the just determination of disputes at proportionate cost, in accordance with the overriding objective in CPR Part 1.1. The court must seek to give effect to the overriding objective when it interprets any rule: CPR Part 1.2. Paragraph 4 of the June 2013 order provided for a time limit within which the appellant could be required to comply with the order in paragraph 1 and also a time limit with which the respondent had to comply if it wished to make an application for a warrant for possession as referred to in paragraph 3. In my view, the court has jurisdiction to extend the time limit in paragraph 4 of the order, even though the time for compliance which it stipulated has now expired. Mr Colville accepts that the respondent could have asked for an extension before the time limit expired. In my opinion it would be unduly formalistic and potentially productive of injustice to construe CPR Part 3.1(2)(a) as precluding an application for an extension of time retrospectively, e.g. if the omission to make an application before expiry was as a result of an innocent mistake.[26]It is one thing to say that the court has a power to adjust the timetable in an order like the June 2013 order retrospectively and another to say that such a power should be exercised. No doubt strong grounds would need to be shown to justify the exercise of that power to allow for a retrospective variation of the timetable in a case like this. But in my view strong grounds exist here and, were it necessary to do so, I consider that it would be right for the court to extend time retrospectively.[27]Both sides were content for there to be a trial of their dispute on a date after 4 June 2014. No one suggested that HHJ Pugsley had no jurisdiction to proceed. The relevant dispute related to circumstances arising well before the deadline of 4 June 2014. The only reason why the trial took place after 4 June 2014 was because of constraints on resources within the court. HHJ Pugsley conducted a trial on the merits of both the respondent’s claim to rely on the warrant for possession and the appellant’s counterclaim for a permanent stay of that warrant and it is just that the parties should be bound by the outcome of that trial. If it were necessary for this court to exercise a power to extend time under the June 2013 order to secure that result, in my view it should do so.[28]I can deal with the second ground of appeal much more shortly. In my judgment, HHJ Pugsley was plainly entitled to adopt the approach he did and to treat as immaterial in the circumstances the failure by the respondent to follow the procedure prescribed in paragraph 3 of the June 2013 order. The intended effect of paragraph 3 was that there should be a judicial determination whether any allegation of breach of the conditions stipulated in the order was made out, before execution of the order for possession could proceed. The trial before HHJ Pugsley ensured that this substantive requirement was satisfied, even though the precise procedure by which this was arrived at was somewhat different from that set out in paragraph 3.[29]For the reasons given above, I would dismiss this appeal.[30]I agree.[31]I also agree.

order

section 82(1A). In such a case the tenancy will end when an order for possession is executed: section 82(2).