Exceptions to the rule

In most County Court possession proceedings, a request must be made to transfer enforcement to the High Court pursuant to section 42 of the County Courts Act 1984. The exceptions are 'desirable' cases where the High Court has transferred proceedings under section 41 of the same act and trespass proceedings, which can be transferred by certificate (CPR 40.14a and 83.19). Orders for possession issued in the High Court also do not require permission and it is becoming more common for possession orders issued in the criminal or family courts to be transferred to the High Court for enforcement, albeit without reference to the County Courts Act.

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Applications under section 42(2) of the County Courts Act 1984

The claimant or their solicitor may apply within the initial pleadings, at any hearing or by application to vary the Order (form N244). Applications to transfer prior to the Order being made are often rejected or not even considered, but we have seen far greater success where the claimant is represented by a Solicitor Advocate or Senior Counsel, with detailed knowledge of the case. Applications made to vary the Order, specifically after the date for possession has passed, have seen far greater success because of:

• The Defendant being in contempt
• There being insufficient time at the possession hearing to consider the transfer request
• The application detailing bailiff delays and the effect on the parties of non-compliance
• The application explaining the HCEO eviction procedure and the reality that there is no prejudice to the Defendant
• Failed County Court evictions or the defendant unlawfully re-entering the property.

Furthermore, many cases of rent arrears and anti-social behaviour proceed under Section 21 of The Housing Act 1988 for the sake of speed and the Judge is not always aware that there are significant rent arrears or disruption to the quiet enjoyment of neighbouring properties.

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Grounds for requesting transfer

Whilst no reason is procedurally required, the prospects of success are largely based upon being able to provide evidence as to why a County Court eviction is undesirable and the impact this would have on the parties. An example being that ‘the court has advised it is presently taking six months to obtain and execute a Warrant of possession’ and by such time the defendant will be in negative equity, leaving the claimant to pursue the likely shortfall. Many other reasons could prejudice either the defendant or claimant and our guidance is summarised below:

• Significant arrears of at least £5,000 are justification for transfer and the claimant is suffering from financial hardship as a result or the loan entering negative equity. It could be further detailed that the defendant requires a formal eviction to be rehoused by the local authority and the arrears are somewhat unnecessarily accruing.
• Anti-social behaviour of the occupants or damage to the property can sway the Judge, particularly where evidence can be demonstrated in the form of a police incident or witness statement from the victim.
• The claimant is facing homelessness and seeks to move into the property or they have exchanged contracts to sell the property, which can lead to the enforcement being transferred
• The defendant has unlawfully entered the property following eviction or the County Court bailiff has failed in executing a Warrant of possession
• The property is deemed unsafe by a qualified assessor and the claimant must take possession to remedy the issue
• The defendant has threatened violence or the congregation of protestors, such as persons purporting to be freemen on the land or activists from groups such as renters’ unions
• The occupants suffer from a vulnerability or disability where a longer eviction and attendance of healthcare professionals is desired.

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Permission to issue the Writ

Firstly, we should clarify that permission to transfer enforcement and permission to issue the Writ are separate procedures. Permission to issue the Writ is no longer required, except in the following instances:

• Trespass proceedings where it has been more than three months since the Order was made (CPR 40.14A, 83.13(3) & 83.19).
• a Writ of restitution in aid of a Warrant or Writ of possession, where the defendant has unlawfully entered after its execution
• a Writ of possession to enforce a notice under section 33D of the Immigration Act 2014
• a Writ of assistance in aid of a Writ of possession or injunction, where the HCEO requires further command.

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Enforcement in the County Court versus the High Court

It is perhaps presumptuous to expect all District Judges and Deputies to be familiar with the bailiff delays in the court they happen to be sitting in and to know how a High Court Enforcement Officer operates. It is a common misconception that the cost of eviction is recoverable from the Defendant(s) and that HCEO’s do not have to give notice. In fact, the HCEO notice of the eviction is hand delivered at the address at least 15 days prior to eviction and in transparent envelopes. The County Court eviction notice is merely posted, and it is common for the notice to arrive after the date of eviction.

Whilst it is known that HCEO’s are generally able to execute a Writ swifter than a bailiff can execute a Warrant, it should be noted that a County Court eviction is allotted only 15 minutes. The HCEO can allow additional time and arrange contractors, ranging from locksmiths to healthcare professionals, to facilitate a safe eviction.

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Conclusion

Most requests to transfer prior to the Order being made fail, but most applications made after the date for possession has elapsed succeed. We recommend that you seek legal advice and representation from senior counsel or a solicitor with Higher Rights of Audience. The request to transfer enforcement should be rational and any aggravating factor should be detailed to include the effect it has on the parties. If the request is rejected or not heard at the time of the order being made, you should wait for the possession date to pass before applying again. Where bailiff delays are the cause of the request, you provide evidence of any backlog and that the delay exceeds 8 weeks. Furthermore, the request, at any stage of proceedings, should elaborate on the HCEO giving notice in accordance with rule 83.8A and that there is no cost passed to the defendant for being evicted under a Writ. Lastly, any application without notice to vary the Order must be served on the Defendant in accordance with CPR 23.9.

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If you would like assistance with transferring enforcement to the High Court, please get in touch by email info@theenforcementagency.com or telephone +44 20 7100 9870