Stonewater Limited v Rosie Marie Harris [2026] EWCC 42

[2026] EWCC 42Case No M00PO832Date 13 July 2026
IN THE COUNTY COURT AT PORTSMOUTH
Before
HIS HONOUR JUDGE GLENSitting at Southampton County Court
Between
Stonewater LimitedClaimantMrs Rosie Marie HarrisDefendant
Mr Carmichael (appearing as Solicitor’s Agent for Bevan Brittan LLP) for the ClaimantHearing Hearing date: 18 May 2026
APPROVED JUDGMENT
[1]This judgment addresses a point of great practical importance and difficulty to landlords and District Judges respectively. Does the Court have power in the exercise of the jurisdiction conferred by CPR70.2A(2) to order that a landlord may force entry to premises occupied by a tenant for the purposes of inspecting the gas or electrical installations in those premises?[2]The matter was listed before me on 18 May 2026 when I heard Mr Carmichael, Solicitors Agent for the Claimant. The Defendant did not attend, as is almost always the case with such applications. Mr Carmichael did not feel that he was properly able to advance a full argument on the issue identified above. Accordingly, I gave permission for the Claimant to file further written submissions by 29 May 2026 and indicated that I would reserve judgment thereafter. The Claimant has filed further submissions, drafted by Thomas Rothwell of Counsel. Background.[3]On 5 December 2008 the Claimant granted an Assured tenancy within the meaning of the Housing Act 1988 of 5 Jordan Court, Manor Park Avenue, Portsmouth to Julie Parr. The Defendant is the assignee of that tenancy pursuant to a Deed of assignment dated 1 April 2019.[4]By clause 3.16 of the tenancy agreement, the tenant covenants in the following terms:
“To allow the Association’s employees or contractors acting on behalf of the Association access at all reasonable hours of the daytime to inspect the condition of the premises or to carry out repairs or other works to the premises or adjoining property (The Association will normally give at least 48 hours’ notice but immediate access may be required in an emergency.) Notwithstanding this, if, in the opinion of the Association, there is an emergency from which personal injury or damages [sic] to the premises or neighbouring property might result, the tenant agrees to allow officers or agents of the Association to enter the premises using such means as necessary without first giving notice.”
[5]In the course of 2025, the Claimant made a series of requests for access in order to carry out an Electrical Installation Condition Report, initially through contractors and then directly. The Defendant was given a series of clear warnings as to the costs and other consequences of failing to provide access. Faced with a complete lack of response, the Claimant issued the present claim on 10 November 2025 accompanied by an application for interim relief.[6]The primary relief sought in the draft order accompanying the application is a mandatory order that the Defendant provide access to the Claimant or its contractors on 48 hours’ prior notice. However, the order also contains a provision that if the Defendant fails to comply, then the Claimant:
“…be permitted to use reasonable force by drilling the locks to obtain immediate access, only where it appears to the Claimant that it is safe to do so and it appears that there is no one in occupation at the time, for the purpose of carrying out the inspection of any Gas or Electrical installations and undertaking any necessary repairs, subsequently making good any damage caused.”
[7]The application came before District Judge Pain on 5 January 2026 when Mr Carmichael represented the Claimant but there was no appearance on the part of the Defendant. The District Judge made an injunction in the terms sought but declined to grant the additional relief identified above. His order was personally served on the Defendant on 15 January 2026.[8]The Claimant made three further attempts to obtain access, on each occasion giving at least 48 hours’ notice of its wish to do so. I infer from the evidence that the Defendant was not present rather than actively opposing access. Accordingly, on 2 March 2026 the Claimant made the present application seeking to vary the order dated 5 January 2026 by inserting the further relief that District Judge Pain had declined to grant. The draft order also makes provision for the Claimant to leave a key in a key safe attached to the external wall of the property. On 23 March 2026, a District Judge determined that this application should be heard by me as Designated Civil Judge in order to provide local guidance on the grant of such relief. Law. The Rules[9]Despite its numbering, CPR70.2A is not a new provision. It originates from RSC O.45 r.8 which was in substantially the same terms and was preserved on the inception of the Civil Procedure Rules by paragraph 8 in part 45 of Schedule 1 before assuming its present form as a result of the Civil Procedure (Amendment) Rules 2014. It forms part of CPR70 which defines its scope at CPR70.1(1) as being “…general rules about enforcement of judgments and orders”.[10]CPR70.2A provides so far as is relevant that:
“(2)…if a mandatory order, an injunction or a judgment or order for the specific performance of a contract is not complied with, the court may direct that the act required to be done may, so far as practicable, be done by another person, being— (a) the party by whom the order or judgment was obtained; or (b) some other person appointed by the court. (3) Where paragraph (2) applies— (a) the costs to another person of doing the act will be borne by the disobedient party; (b) upon the act being done the expenses incurred may be ascertained in such manner as the court directs; and (c) execution may issue against the disobedient party for the amount so ascertained and for costs. (4) Paragraph (2) is without prejudice to— (a) the court’s powers under section 39 of the Senior Courts Act 1981; and (b) the court’s powers to punish the disobedient party for contempt.”
The purpose of the rule is self-evident; “Shortly stated, those provisions enable the court, when an order is not being complied with, to appoint either a party or some other person to perform the order on behalf of the person who has failed to do so.” (per Browne-Wilkinson LJ in Parker v. Camden London Borough Council [1986] 1 Ch 162).

Jurisprudence

[11]The Rule and its predecessors have received scant attention by the higher courts and certainly none in the present context. However, in Ford Sellar Morris Developments Ltd v Grant Seward Ltd [1989] 2 EGLR 40 the claimant landlord sought an order that it be permitted to enter and carry out certain allegedly agreed works to the demised premises in default of the tenant having done so. The application was put on the alternative bases of reliance on an access clause in not dissimilar terms to that in this case, and on RSC O.45 r.8.[12]In the latter case, the order sought was argued to be a “convenient marriage of the specific performance order and the remedy for non-compliance…the plaintiff thereby given the right to perform the act straight away..” Hoffman J rejected the first limb of the application on the basis that the access clause could not be construed as contemplating the scale of works proposed. In also rejecting the alternative argument under RSC O.45 r.8 he said this:
“In my view, however, the jurisdiction under Ord 45, r 8, depends at least upon the court being willing to grant a mandatory order against the defendant to do the act in question. It may be that in a suitable case the court would take the view that the defendant was so unlikely to do the act that in a case of urgency it would be proper to authorise the plaintiff to do it himself at once.”
Hoffman J seems to have had no principled objection to the fact that the order sought would necessarily involve non-consensual entry to the demised premises.[13]In Britel Corp. NV v. Orbach (1997) 29 HLR 883 a block of flats was let by a landlord to lessees on terms that service charges were paid to a management company in which all lessees were shareholders. Certain corporate lessees were in substantial arrears in payment of service charges.One lessee sought, relying on Section 37(2) of the Supreme Court Act 1981, to compel the landlord to comply with its covenant to enforce terms in those leases by proceeding to forfeiture. At first instance he obtained an order to that effect with an additional provision that this be done by the management company in the landlord’s name.[14]On appeal, the landlord contended that Section 37(2) (and by way of illustration) RSC. O.45 r.8 required a two stage approach. An order should be made, followed by a proper opportunity to comply, before making an order of the kind that the lessee had obtained in that case. That submission was rejected as having no basis, albeit only by reference to Section 37(2).[15]There have been a number of conflicting decisions at County Court level on the issue before me. They all suffer, as this case suffers, from an absence of any representation for (or indeed attendance by) the Defendant. Chronologically, they begin with the decision of HHJ Berkeley in Sovereign Housing Association Ltd. V. Hall (2024) Unrep. This was an appeal from a District Judge who had dismissed an application on the basis that committal was the proper remedy for a failure to comply.[16]In a brief judgment, he held that CPR70.2A was plainly applicable where an injunction had been made and not complied with. He went on in this way:
“The court is therefore empowered to order that the claimant carry out required to be done, namely the granting of access to the property… The fact that access is gained by unconventional means is nothing to the point…”
He held that this interpretation was consistent with the overriding objective. By reference to CPR70.2A(4)(b), the availability of committal proceedings was no bar.[17]This approach did not find favour with District Judge Cridge in Southern Housing v. Emmanuel [2026] L &TR 9. In a lengthy judgment (commendably including a plain language summary for the defendant) he held that CPR70.2A could not be used as the basis for a ‘forced entry’ order in the absence of some statutory authority for it. Having reviewed a number of authorities emphasising the sanctity of a person’s home, he held that there was nothing in the rule (or in Section 37(2)) that authorised any court to permit forced entry. A tenant has exclusive possession and accordingly any entry upon the premises by the landlord would be a trespass.[18]There was however a second basis for his decision which relates to identity of the ‘act’ referred to in CPR70.2A(2). Relying in part on dicta in R. (Environment Agency) v. Tapecrown [2018] EWCA Crim 45, he held that:
“…it is the original order that enables the court to make the rule 70.2A order. In the present case, the original order was the Injunction requiring the defendant to "permit the Claimant to enter the Property.”
Under the Injunction the defendant's act was this: allowing the claimant in. It is not capable of being "done by another person", or at least not by 'another person' who is outside the defendant's home without a key to the locked door. What the claimant seeks here is not the same act performed by another, but a different act altogether: forced entry without the defendant's consent. In my view that cannot be described as "the act required to be done". That this is so is shown by the fact the claimant applies to vary the Injunction, rather than have me appoint someone else to let them into the defendant's home. In my view there is no power under 70.2A to vary the original order.”[19]The pendulum swung the other way in Taylor Clark Ltd v Mohamed (2026) Unrep., a decision of District Judge Le Bas sitting at the Central London County Court. A full judgment is not available but a note of the decision summarises it in this way:
“(a) When making an access injunction (or later an order under CPR 70.2A), the Court was merely giving effect to the tenant’s contractually binding consent, as evidenced by the covenants of the tenancy, that the landlord is to have access in certain situations. In obtaining access in those circumstances, the landlord is not a trespasser. (b) Where, therefore, the Court orders a tenant to “permit” or “allow” access to a particular property in accordance with an access covenant, express or implied, in the tenancy, the Court is not ordering the tenant to give permission for access to be granted – something which the Court could not, in principle, do – but rather to facilitate access in accordance with the covenant and consent previously given by the tenant (i.e. by opening the door). That is a vital distinction. … (d) The relevant “act”, in cases of this kind, is the facilitation of access – i.e. unlocking/opening the door. If the tenant will not open the door voluntarily, then the Court may grant permission for the door to be opened, so far as practicable, by another person (i.e. by forcing the lock).”
[20]District Judge Le Bas’ approach found favour with District Judge James in Plymouth Community Homes Ltd. V. Hammond (2026) Unrep. He recognised that any entry by a landlord upon the demised premises will be a trespass if without permission or other authority. However, the tenant’s right to exclusive possession is subject to the terms of the tenancy agreement and no trespass is committed if the landlord acts within his rights as conferred by it or by law.[21]Turning to the second basis for District Judge Cridge’s decision, District Judge James says this, describing it as a purposive rather than literal approach to the Rule:
“In my view the act required is the giving or granting, or the obtaining or gaining, of access depending on the perspective of the party. The method of achieving the act required or purpose of the injunction is unlikely to be identical in the hands of a third party as compared with the person against whom the injunction was obtained. Unless rule 70.2A is to be rendered nugatory the focus must surely be on whether the act required or purpose of the injunction remains fundamentally or essentially the same, although the method may be different.”
Submissions.[22]In his written submissions, Mr Rothwell adopts the logic employed by District Judge Le Bas in arguing that Emmanuel was wrongly decided. He argues that no trespass is committed by a landlord where an order “…facilitate[s] access in accordance with the covenant and contractually binding consent previously given by the tenant…”. He argues that the ‘act’ for the purposes of CPR70.2A(2) is the facilitation of access; if the tenant will not open the door then the Court has power to authorise the Claimant to open it. If however I were to be against him, he invites me to give permission for an appeal to the Court of Appeal in order that this issue of ‘public importance’ can be resolved authoritatively. Conclusions.[23]There can be no doubting the erudition of District Judge Cridge’s analysis of the jurisprudence behind the proposition that ‘an Englishman’s home is his castle’. Indeed, it is hardly needed having regard to the operation of Article 8 of the European Convention on Human Rights. With respect to him, this does not however provide an answer to applications of this type.[24]His broad conclusion that a court has no power to authorise entry to someone’s home absent statutory authority cannot in my judgment be supported. One obvious illustration of such a power is what is now known as a search and imaging order, stemming from Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55. Such orders can authorise entry to a person’s dwelling, albeit that in Lock International plc v. Beswick [1989] 1 WLR 1268 this was described as the “…absolute extremity of the court's powers…”. Furthermore, a specific power is provided for by CPR25.1(d) in aid of interim remedies.[25]I am however equally of the view that the ‘deemed consent’ approach relied upon by District Judge Le Bas and adopted by Mr Rothwell cannot be correct. In covenanting to allow access, the tenant is binding themselves contractually to give access when asked to do so. They are not agreeing that the landlord can without more enter the premises as and when notice to do so has been given.[26]The distinction is neatly captured by the access clause in this agreement. The first sentence contains the covenant on the part of the tenant to provide access if asked to do so. However, the second sentence is plainly intended to say something different. Whilst the wording is obscure, it might be better read as:
“Notwithstanding this, if, in the opinion of the Association, there is an emergency from which personal injury or damage to the premises or neighbouring property might result, the tenant agrees that the officers or agents of the Association may enter the premises using such means as necessary without first giving notice.”
This is properly a consent clause.[27]The real issue here in my judgment is the identification of the ‘act’ for the purposes of CPR70.2A(2). Clearly, if the ‘act’ is the allowing of access, then it is difficult to see how an order could be made permitting the landlord to allow itself access from outside the premises. This is however in my judgment to take too narrow a view of the scope of the Rule. In this respect, I consider that District Judge James’ analysis is to be preferred. The core ‘act’ in in this context is enabling the landlord to obtain access. If it cannot be enabled by the tenant’s consent, then in my judgment CPR70.2A(2) permits the Court to empower the landlord to enable access in another way.[28]To the extent that this involves a purposive interpretation of CPR70.2A(2), then in my judgment it is justified. The alternatives to granting the relief sought are both unattractive and disproportionate. Committal for contempt of court is often a complex, lengthy and expensive procedure and ultimately may not by itself necessarily produce the outcome sought. The issue of possession proceedings is truly an example of taking a sledgehammer to crack a nut. It is obviously important that proper regard is paid to a tenant’s property and Article 8 rights. It is however also important that regard is had to the safety of those who live around them if defects in gas or electrical installations go undetected.[29]In my judgment, District Judges and Deputy District Judges do in principle have the power to make an order permitting landlords to force access to rented property in order to carry out gas and electrical safety inspections. I however consider that this is subject to the following: i). Whilst in my judgment it is technically possible on the authorities for a ‘rolled up’ order to be made at a first hearing (i.e. an order that the tenant provide access coupled with a CPR70.2A(2) order in default), I do not consider given the serious nature of the interference with a tenant’s property and Convention rights that this will normally be appropriate in cases of this kind. ii). On any application for a CPR70.2A(2) order, the Court will (in concordance with the approach taken by District Judge James) expect to be provided with information regarding the tenant and their household, including anything in relation to potential vulnerabilities. iii). Any order should provide that forced access should only take place on 48 hours prior notice. Plainly, the Claimant should not proceed where the tenant is present and actively opposes entry. iv). It seems to me that the additional provision in this application for the affixing of a key safe to the outside of the premises represents good practice. Postscript.[30]The analysis at paragraph 26 of this judgment demonstrates that it is perfectly possible for tenancy agreements to be written in a way that provides that the tenant gives their express consent to entry in their absence, subject to certain conditions being fulfilled. Entry in such circumstances would not be a trespass, nor would a landlord obviously require the sanction of the Court to do something it was contractually entitled to do. A great deal of money (and, just as importantly) a great deal of court time could be saved as a result. HHJ Glen.