Battling against possession ; ;District Judge Nic Madge on the latest law for keeping the tenant in and the bailiff out.

;Stay, suspend or postpone ;It is well known that where a landlord has obtained a possession order relying on a discretionary ground for possession, the court may stay or suspend execution or postpone the date for possession for such period or periods as it thinks fit (Housing Act 1985 s.85(2) and Housing Act 1988 s.9(2)).

Over the years the courts have established several rules about the exercise of that discretion: ;l The court practice is to be merciful to tenants and to give them a realistic opportunity to pay arrears (Henry v Lambeth LBC [1999] EGCS 142, CA).

;l Where there is a substantial dispute about the amount claimed and the tenants compliance with the order, the up-to-date position has to be clearly and accurately established if necessary by adjourning so that further information may be presented and staying execution in the interim (Haringey LBC v Powell (1996) 28 HLR 798, CA).

;l In the County Court there is no requirement that the landlord apply for permission to issue a warrant for possession, or that notice be given to the occupant (Leicester CC v Aldwinkle (1992) 24 HLR 40, CA).

;l If a tenants solicitor attends court to make an emergency application to stay a warrant and there is still a judge in the building, it is wrong for court staff to say that the judge has finished his list for the day and it is too late for the application to be heard (Islington LBC v Harridge (1993) The Times, 30 June, CA).

;l After eviction there is no power to stay or suspend a warrant further.

Tenants who have been evicted can only lawfully recover possession if (a) the original order is set aside (see Tower Hamlets LBC v Abadie (1990) 22 HLR 264, CA, Henry v Lambeth LBC [1999] EGCS 142, CA and Southwark LBC v Joseph March 2000 Legal Action 29, CA); or (b) the warrant was obtained by fraud; or (c) there has been abuse of the process in the sense of oppressive conduct by the landlord (Hammersmith and Fulham LBC v Hill (1995) 27 HLR 368, CA).

;Suspension after eviction ;It is accordingly important to consider what may amount to oppressive conduct.

This has been clarified by the Court of Appeal in a number of recent cases.

It is clear from these decisions that the categories of oppressive conduct are not closed and that it is not limited to the acts of the landlord.

For example, in Southwark LBC v Sarfo (2000) 32 HLR 602, CA, the Court of Appeal confirmed that an executed warrant can be set aside if there has been oppression in the execution.

Roch LJ said: ;Oppression...

is the ;insistence by a public authority on its strict rights in circumstances which make that insistence manifestly unfair.

The categories of oppression are not closed because no-one can envisage all the sets of circumstances which could make the execution of a warrant oppressive.

;In Saint v Barking and Dagenham LBC (1999) 31 HLR 620, CA the defendant was in prison.

A warrant was set aside after eviction because the conduct of the council in obtaining and executing the warrant had been oppressive.

It had been under a duty promptly to invite the applicant to renew his housing benefit under Housing Benefit (General) Regulations 1987 reg 72(14).

This obligation required the council to send the renewal form to an address where it was likely to come to the applicants attention (i.e., his prison address).

The council was relying on its own wrongdoing in obtaining the warrant to the extent that non-payment of housing benefit had caused the suspended order to be breached.

Second, before the applicants arrest his level of arrears had fallen below the level required to comply with the suspended order and when the warrant was applied for his outstanding debt was small (336).

If he had been given an opportunity to apply to suspend the warrant of possession he should have succeeded.

;In Hammersmith and Fulham LBC v Lemeh July 2000 Legal Action 28, CA, the defendant went to court to apply to suspend a warrant the day before it was due to be executed.

A member of the court staff, wrongly, told him that there was no warrant.

As a result he left the court and the warrant for possession was executed the following morning.

The defendant applied to set aside execution of the warrant on the ground of oppression.

The application was granted and the council appealed contending that oppression had to be caused by the landlord and not by the court.

The Court of Appeal dismissed the councils appeal.

Once a warrant for possession has been obtained its execution is a matter between the tenant and the court.

There is no reason why misleading information from a court officer, preventing a tenant from taking steps to have execution of a warrant stayed prior to execution, cannot amount to oppression.

As to whether the misleading information constituted oppression in the present case, that was a question of fact.

It was clear that if the member of the court staff had not given the wrong information, the defendant would have been able to make his application, and undoubtedly had the application heard before execution.

A warrant was also set aside after execution in Lambeth LBC v Hughes July 2000 Legal Action 29, CA, where the Court of Appeal held that: (1) the councils statement that only payment in full could prevent eviction was misleading and oppressive in the absence of any reference to the possibility of an application to the court; and (2) the posting by the court of a bailiffs letter advising the occupant of the date for eviction in such a way that it was only received as the eviction was taking place again made the execution oppressive.

;On the other hand in Jephson Homes HA v Moisejevs [2000] EGCS 123, CA, it was held that a possession warrant obtained and executed against a secure tenant without fault on anyones part cannot properly be set aside as oppressive or an abuse of process.

Oppression cannot exist without the unfair use of court procedures.

Something more than the mere use of the eviction process some action on someones part which was open to criticism is required before the courts procedures can be said to have been unfairly used.

An eviction cannot be regarded as oppressive or abusive merely because it is appreciated after the event that the tenant might usefully have applied to stay or suspend execution of the warrant.

There is no requirement that a tenant should be given notice of a request for the issue of a possession warrant in all cases.

;Human rights ;An important related point is whether the current County Court rules dealing with warrants for possession are European Court of Human Rights compliant.

Tenants may continue living in premises for many years after the making of a suspended possession order before an application is made for a warrant.

Although in practice bailiffs normally give occupiers notification of any impending eviction, CCR Ord 26 r.17 provides that landlords may enforce County Court possession orders by applying for warrants without giving notice to tenants (or often, more accurately, former tenants).

This contrasts with RSC Ord 45 r.3 (which requires the permission of the court before the issue of a High Court claim form for possession of land) and CCR Ord 26 r.1(4) (which requires a seven day warning notice before a warrant of execution is levied).

The failure of the rules to provide automatic notification to a tenant of an application to issue a warrant for possession is arguably a breach of ECHR arts 6 and 8 and art.1 of the First Protocol.

Enforcement proceedings are certainly within the ambit of art.6.

See Immobiliare Saffi v Italy (22774/93).

It is arguable that the absence of any requirement that the tenant be given notice of an application to issue a warrant deprives him or her of a fair hearing.

;District Judge Nic Madge sits at West London County Court