Obtaining Writs of Possession - Partridge v Gupta 2017

So, Partridge in. Gotcha. My name is Rachel Coyle on unabashed a 36 group. I work in the civil team in a tie. Do you having property on commercial and stayed. Webinar is in conjunction with Data Law and is about the case of partisan Gotta. This is not about obtaining rights of possession. So do we now have clarity. So just in a nutshell, what they're finding. But High Court held that CPR 83.13 which is permission required to issue a writ of possession, requires that the Occupy should have sufficient knowledge about the case of whole need not be given notice of the actual application for permission. That's fine outside too. So what am I talking about when it took about 8 to 3.13? Well, let's turn to slide re. So for those of you lovely people about a deal with 83.13 of the past two years, I think it is. Now, uh, we all know about the difficulties that it would have certainly context off at the Housing Act of 1988 on 2nd 1 notices. So I am just going to go through that with you with part of the history. So a Section 21 notice it's found described in section Obviously 21 Housing Act of 1988. This is why I'm not contaminated. Short your whole Tennessee on DST Racial and notice Under Section 21 ACT Section 21 gives a land orginal dramatic right possession without having to give any reasons once a fixed term has expired. So what about orders and warrants and writs? Production Little that monarchy? Well, So that's Wayne's. Proceed when dealing with a property that is, well, your important use for such practice. It's taken out of production from the course and to ensure that possession is obtained lawfully. Rajapakse Growing one. There's no cost going down. The dream I don't with the occupy does not give up profession. In accordance with the court, order the claim it must apply for warrants or possession. Driver Nano's often applying to transfer possession orders made in the county court to the High Court because eviction can usually carry out far more quickly by Hank, One important officer and once transferred that I'm not applies the High court permission to issue a writ or possession which is under 30 p. R. 83.13 Now you may have your wife looking for interview. You may have. You know, Johnny in front of you on the website with pretty girls, but already out for you. In any event, this is reaching out some team version. The actually played 13 provides. I don't change adjustment order. We'll be giving up possession of land. Maybe force the high court from one of the five means. Okay, It was possession on to subjects progress 356 A rich tradition to force a judgment or order with giving up possession of any land will not be issued without permission of the court. Eight 83.13 Measurement between progress to will not be granted. Last two shown A that every person in actual production, the whole or any part of times has received such notice proceedings to pass the court special to enable the occupant right to court generally which the document may be entitled. So 83.138 a has actually remained unchanged from the original wording of the corresponding role planning the funerals of the Supreme Court, the RST name Order 45 Rules. Seriously, I so helpfully recent case on it. Because of that on, you'll see that it purports right? Three. The first is streetwalking Limited Anoma Mason Act 46 Eaton Place in LTD. 1970 to 1. We could report page 765 here The landlord had obtained leave to issue a writ of possession on the grounds of breach of conditions Subject performance off which war but had bean up to be ordered by consent. Chanted only learned of the application and subsequent writ when they were locked out of their property. So when it was considered by the or rule or order for prime rule 33 a. It was house that it would be both breach of natural justice on the procedural to not provide talents of the notice Often application. How can I continue to who passed forward a bit to 1992 Got the case of last discounts on old Winkle at 24 housing. No reports at page reporting pure like it. How j found to the context of a warrant of possession granted on the counter court rules where permission to issue warrants are not required he could not right in the middle notes requirement. I natural justice did not stretch that far. Don't want boarded a little bit more rededicated. Jephson Time Housing Association, Moyes DJs On the night I apologize if I have spelt said that completely wrong. Not in 2001. Not that that started three houses. No reports that Patriot people would appeal. And in that case, it was house that just upstage and haven't executed right side to side on the ground of oppression. A tenant would have to establish some wrongdoing on the part off the court or the landlord such that the tenant has we miss, lodge or obstructed in pencil into her rights. Simon Browne LJ made and over to comment in my DJs at 44. In such a position under the RSC the well Spring court order 45 all three points 333 A. Regarding the night is required. What? Somewhat obscure. Quit? Yeah. Nice athlete mortgage. I construed that rule requiring notice of a little application by breach a conditional spend a possession order But a paragraph 50 He accepted that as in the case of Old Winkle, that will be case about nine actus and to be given to the tenant. And as we probably all night, that's Brinkley to changes in 23 as a guy brought is the Secretary of state. Depends on Nicholas 20,050 in a while. Um, how? Well, they're six more transfer division this with an interesting case. Um, in which there's next wife. Uh um, no, You got that divorce. They were very came to the promises on a nice possession proceeding. An order was granted. An appeals court appeal was made on the grounds out tonight. I don't know. So the ex wife waiting permission for appeals, as I can appeal, did not seem to come to Utah landlord. So application admission to issue a writ of possession, war may. And if granted, that noticed to his necklace? Yes. You know, the application night is where it is that you should be served with the application. The man not right not applicable. And my dragons to DPR 83.13 of section bowl. It was considered that this Nicklaus would not accept. But that was pretty correct. Because we're starting a runoff belief, I think with trust, it has not been determined yet by the outstanding appeal chopping made to his pre court. So Roger helped at Park up 14 about the noticed a quad 23.138 a that in the White Book notes, 83.139 states that the effects of Steve Yarbrough a 13.8 is that notice of application for writ off possession must be given to every African to the property on the court. Will not grant possession without your prints having an opportunity to apply to court, really on its site. Dedicated last City Council All wrinkle in support of that proposition with Night Dream My attention to Jephson Homes, Housing Association envoy to Jay's. Another also referred to notice being given off the application for a writ of possession, particular part of 50 off that judgment. I also night not who likes frequent 13 to itself. Visitors that there will be a judgment or order the giving off possession off the land just forced by the writ of possession. So on this basis, also, I consider that notice should have been given to Miss Nicholas and those representing her on that the order made should be set aside on that basis to the that with the last case on this weight in the high court before the case for partisan good. But that's the history of a 3.13 But what is the procedure? So he turned to slight full. That's a nice summary off the procedure. The where possession order is made in the county court, the case can be transferred to the High Court Horseman in the power that's given in Section 42 of the County Courts Act 1984. The applications are made before master off the Queen French division and then enforcing obsession orders in the high court is governed by it. It's really Point Warren re. This exercise of judicial scrutiny by a master of the Queen's Fresh division is regularly a box ticking exercise wherein the master will officially of commission for the High Court Important office to issue a writ of possession or control that some standard for PF nine to these kind of cases in applications not usually listed. So no nights to sent out by the court on advocates or representatives generally appeared before the denigrated applications master no more when it asked practice master on a first come best basic, Um, one of the condition with granted permission is that quote every person, actual possession, the whole or any parts off the man has received such notice off the proceeding. Are the parents of court sufficient to enable the occupant of apply to court ready? Really? To which you may be entitled? That's 83.13 This store has known nights provision, and it was this nice provision that was brought to the court's attention. Secretary State Defensive Nicholas. Where was Howard that notice the proceedings Mammoth Occupy was entitled to notice of the application for permission. Teoh issue writs. So that's essentially about the procedure. What happens thereafter? It's at the enforcement officers engaged by that. I'm not, um then right to the tenant under separate cover to the occupiers, given notice that future attention to apply for permission to issue ripped off possession, that that's normally what would be expected. But now I have a tenants know any of your prize, okay, is given a full notice, and that certainly was a case of Partridge the Partridge. If we just turn briefly. Teoh, probably it's life. Six well such a case. They were notified by post offices, but meantime, Teoh apply permission for it. But they actually hadn't had any sort of official notice to suggest that that was indeed the case that they had commission. So what's the backdrop? What's the background facts? Well, Mr Part, it was a short your whole tenant. Mr. Cultures, the doctor served a section 21 notice Another housing act of 1988 Obtained a possession order. Andi. He applied for case for transfer to the high court for enforcement. You told Mr Partners actually attended to apply for a writ. The application for admission was made on without noticed basis. The application wants granted. Five Master on the writ was executed. Mr. Partridge applied to such side. The writ accepted that he had no to the possession order. The transfer of the intention to cry her rip but replying, relying on Nicolosi content that he should have seen the actual application. The master dismissed this and me pure about it. In summary, what happened in the case, which doesnt that Teoh, the high Court Holmes attorney? Because, Mr Pastures, key points of dispute was that the high Court enforcement officer Acting of Mr Gupta Agent had not provided sufficient notice proceedings under 83.13 any time the high court quarter officer had written to Mr Partridge on separately to quote the occupiers in March 2016 to give notice of one. The application to transfer since the High Court under Section 42 of the County Courts, Act 19 or on to the application permission to issue retrocession Accordance with 83.13 But what's common ground between the parties that these letters could not amount to formal night? It's under 93.138 which is not actually issued until July 16 3 months after her consent. The departure argued that compliance with a 3.138 require formal next field application for the mission to issue the ripped on a bottom Rose J's judgment in Nicholas as authorities This principle. So there were three issues one the enforcement officer wrote to give nights of there in time to apply for permission to issue a writ of possession on there, except for yours to there was no formal notice of time and date on which imports agents in total pair for master on three, but I know it argued that the bench had discretion under 83.138 Consider. Informer Noticed being sufficient to allow eternal occupied since by tonight's religion, 83.138 A. So what? Waas The court's finding. What was the outcome? Well, let's go, Teoh happens. Line seven. The court's finding was his photos. Well, Rose Jay and Secretary of State Defense Nicolas have such aside a writ at least partly on the base that night to the application on seek er sweet. Once we ate a have not been given next list, Nichols could be distinguished from the present case as quote this case. In addition to knowledge, the appellant gain from his active participation or proceedings up the conclusion off the hearing, boys are but Justice Harris. There was, at the very least, an intimation of intention to flight mission to ensure grit. Our possession in the letter of March 2016 furthermore, wasn't a case to book. The final paragraph of that letter heralded the impending conviction Nicolas Nurses Morning wants give him BPO was dismissed. Sufficient nurses have bean given Brosque J then proceed. Start out what might amount to sufficient notes in 23.13 in prior situations. Up paragraphs 63 on 67 you will see that it's dr 78 the briefs. Not this off the essentially the outcome, but also the main principle that J set out. And it it's a quiet lunch, quite. But I do think it's a benefit. So how about 63 of the judgment? He states his test for deciding whether permission to issue a writ of possession to be granted flying an order possession. But there's one off until more than one other premises is weather. Every person in actual production, the whole or any part of the land has received such notice. The proceedings of appears to court sufficient to enable the occupant of fight a court or any really, so she options may be entitled the next. The proceedings repair To Does not know, sir require either the service of the former notes application for permission or really more informal intimation by letter or the communication. But the application will be heard on a particular day or at a particular time either would be sufficient, but neither is required by the rule provided that the night is it sufficient to enable the occupant or occupants to life relief. So whether it's a sole occupant here is a subject of the possession order on he or she has full knowledge of possession proceedings. Remind of the terms of the court order on a request that possession is given up under the order is generally speaking sufficient notes within the room. This is consistent with the practice referred to Pete early in the White Book that quite where the defendant is the only prize in production of promises, the claimant must give the defendant notice to the judgment or order and call upon that person to give up possession under the Jordan Gerada de Paragraphs such to 55 in judgment. If there's any doubt about where this this is sufficient, it could be resolved by saying in the same communication that permission to apply for a writ of possession will be sought from the court in due course. If production is not delivered up on that eviction will follow where the sole defendant has played no part in the possession proceedings, a letter or the suitable for communication containing all of the above. Information should ensure that switch notice within the rules being given, Finally, whether occupants are lonely planet to the production proceedings known to occupy the property. But unless you address to their work by name or to the occupants is named or unknown in seven times, not searching program feet 15 above in the judgment is your quiet it be necessary that ball to include reference to the intention to apply for permission to issue rich production, but I should not delivered up by that date. But grabbing the order and that affection will follow. Quote. So Foskett J. Distinguished Nicholas on the basis that no warning whatsoever of the impending eviction have been given. In that case, what here, Mr Partridge had the knowledge gained from his active participation in all preceding after possession order had been granted. In any event, it seemed clear that Nicholas Rowe's J relied on notes in the white book in substantiate in that part of her judgment that haven't been taken to the underlying authorities. Musket Joe expressed doubt that All Winkle, which waas instead has cited in the relevant notes. The White Book is authority for the proposition that affair to give notice the application for writ of possession can off itself be a reason for such inside through it. After execution. Well, that's all. Occupants must be Service deal application nytr See car back to seven of the judgment. So I the main principles that could be taken away if they're to be put in a nice knot show Ah, number one. The test is whether every person in actual possession, the whole or any part of land has received such notice of proceedings. It appears the court sufficient to enable the occupant to fly to court generally maybe in timeto number two native proceedings is not necessary require either the notice of formal notes off applications for permission or more formal. It's more informal intimation by letter or communication that the application will be heard. I'm take a day or a particular time. Where is the sole occupant who is number three? Whether it's a sole occupant of the subject possession order and they have full knowledge possession proceedings, reminder that turns the court order and request that traditions given up under the order is journey speaking sufficient notice within the rule. If there is doubts as to whether it is sufficient. It appears off by saying in the same communication, permission to apply for Richard possession will be sort of the important. Of course, the possession is not delivered off. The infection will follow again to seriously please see paragraph 65 judgment both lee the Public side eight when the soul defendants played no part in possession proceedings. A letter with this you to perform communication containing all of the above information. Should I ensure that sufficient notice within the rule have been given the see paragraphs 86 of the Judgment I finally whether arguments over the defendant to possession proceedings known to occupy the property on a letter addressed to them you know my name or to the operative not known in similar terms is required. It be necessary to include reference to the intention to apply mission to issue a writ of possession possession, not liver duck by the date, but grabbing the order on that effectual. Follow that paragraph 67. So what's the future then? Well, political power points 59 is now less confusion caused by necklace or high court decision, is it decision is no finances on the matter because the issue, since the matter cannot because it authorities determine I'm his best to exercise caution. So, for example, it would appear that safety course of action is to give the turn in other occupied express between notice on Donald intention to seek permission to issue erect set out time and date upon its request was made. The majority of cases possession will not be granted. Demanding will have been granted in underground. What would it be inspected? One notice. So the presence of the tenant won't change matters in the event. So it is a welcome judgment. Um, it's a simple judgment, really. What could it be? Common. Increasing complicated matter. Um, because it it appears that perhaps consequences nickelsburg happen intended at least that's now been addressed in cartridge. But if Fanis unless and until the court appeal grapples with the issue, there's no definitive authority on this Until birth control set up J in the Partridge. It is really followed by a quick Wilson officers, in any event, so in on the high court decision. But it's still not left a very important decision, while in the case off Nicholas, do you have you found that to be helpful. Please. Do you have a look at the violation for hope you'll be able? Teoh is the question.