The case of Partridge v Gupta  EWHC 2110 (QB) clarified the Court’s position in relation to the giving of notice sufficient to enable an occupier to apply for relief.
As the bailiff service offered in the County Court continues to suffer under the strain of being under-staffed and over-used, landlords and those acting for them are increasingly turning to the High Court to obtain possession.
The appellant was the tenant of the property, let under an Assured Shorthold Tenancy. The landlord had sought to terminate the tenancy and had obtained a possession order at a contested hearing. At a hearing before HHJ Harris (where the landord was represented by the author), a renewed application for permission to appeal was dismissed and permission was granted to transfer the case up to the High Court for enforcement. The landlord then instructed recovery agents to obtain a writ of possession in the High Court.
Unlike County Court bailiffs who will enforce a possession order on the basis of a written application and the payment of a fee, the gatekeeping procedures for the High Court are reasonably thorough and require multiple layers of judicial ‘scrutiny’ (if not active mental engagement from those on the bench).
As all but the most unusual possession claims are heard in the County Court, an order is usually required transferring the matter up to the High Court. Applications are then made before a Master of the QBD and are governed by CPR 83. This exercise of judicial scrutiny is regularly a box-ticking exercise, wherein the Master will officially give permission for the High Court enforcement office to issue a writ of possession or control (on standard form PF92).
Such applications are not usually listed (so no notice is sent out by the Court). Advocates or representatives generally appear before the dedicated Applications Master (formerly the ‘Practice Master’) on a ‘first come, first served’ basis.
One of the conditions precedent for the grant of permission under CPR 83.13 is that ‘…every person in actual possession of the whole or any part of the land has received such notice of the proceedings as appears to the court sufficient to enable the occupant to apply to the court for any relief to which the occupant may be entitled…’ (83.13(8) – the ‘Notice Provision’).
The issue in Partridge
Enforcement officers engaged by the landlord had written to the tenant and under separate cover to ‘the occupiers’ giving notice of their future intention to apply for permission to issue a writ of possession.
Neither the tenant, nor any other occupiers was given any formal notice of the time or date on which the enforcement agents for the landlord intended to go before the Master. The Appellant tenant argued that formal notice of the same needed to be given before the Notice Provision could be satisfied.
The Respondent landlord argued conversely that the wording of the Notice Provision granted the Bench a discretion to consider in the particular circumstances of each case, whether the notice (formal, informal or arguably, implied) was ‘sufficient’ to allow the tenant (or any occupiers) to have sought such relief as was available.
The Court’s Decision
Foskett held that as there was no strict rule governing the manner of the communication required in the Notice Provision, ‘sufficient’ notice could reasonably be something that varied from tenant to tenant and case to case. By reference to the Notice Provision itself and the rule that preceded it (rule 3 of Order 45, RSC), Foskett indicated that particular care should be taken in circumstances where the tenant has not taken any part in the possession proceedings. In any event, the tenant and any other persons known to be in occupation should be sent personal letters explaining the outcome of any possession proceedings, stating that a writ of possession would be sought in the event that possession is not given up, followed by an eviction.
In the particular circumstances of Partridge, the tenant’s extensive involvement in all of the proceedings leading up to the Master’s grant of permission to issue a writ was held to have given him opportunity to seek relief. No formal, written notice of the writ application was required.
Given the Court’s conclusion that the sufficiency of notice depends on the factual background of the proceedings, it is difficult to formulate a hard and fast rule.
It would appear that the safest course of action is to give the tenant and other occupiers express, written notice of the landlord’s intention to seek permission to issue a writ, setting out the time and date upon which the request will be made. In the majority of cases, possession will have been granted under a mandatory ground (i.e. a section 21 notice), so the presence of a tenant will not change matters.
Should such forthrightness not be desirable, the landlord, or those acting for him or her will almost always be complying with the Notice Provision provided a written reminder of the terms of the possession order is sent, including an express statement that a writ of possession will be sought in due course if possession is not given up. In any event, a period of at least 48 hours, and ideally longer should be given between service of the letter and an appearance in before the Master.
Partridge was intended to clarify the rules in relation to wits and to an extent, it has lessened the confusion caused by the decision in Secretary of State for Defence v Nicholas  EWHC 4064 (Ch). As no higher Court has made a final decision on the issue, the matter cannot be considered authoritatively determined.
Given the limited scope for tenants to obtain relief after the making of a possession order (and the expiry of the term before possession must be given), an abundance of caution may remain the best practice for landlords.
Sam Phillips is a property barrister, specialising in contentious chancery matters, TLATA claims and landlord and tenant disputes at Five Paper Chambers.