Debt Advice Handbook 14th editionChapter 13: Action in the county court: possession of goods and property 5. Preventing enforcement
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5. Preventing enforcement
Setting aside a judgment
If there has been a hearing in the county court, the client can apply to have the order ’set aside’ (see here) and the matter reheard if s/he did not attend the hearing and an order was made in her/his absence. The court must consider whether the client:
    •acted ’promptly’ – ie, with all reasonable speed once s/he found out that the court had made an order against her/him;
    •had a good reason for not attending the hearing; and
    •has a reasonable prospect of success at any rehearing.
The court is unlikely to order a rehearing if the client deliberately failed to attend or if the court is satisfied that there is no real prospect of the original order being changed.1The application is made ‘in the interests of justice’ under r3.1(2)(m) and (7) CPR; Hackney London Borough Council v Findlay [2011] EWCA Civ 8 (Adviser 145 money advice abstracts)
The court will not allow an application for a rehearing purely on the grounds that the client did not receive notice of the hearing date without enquiring why s/he did not receive it. On the other hand, the court should not refuse an application for a rehearing just because the client failed to provide the creditor or lender with a forwarding address. In general:2Estate Acquisition and Development v Wiltshire [2006] EWCA Civ 533 (Adviser 118 abstracts)
    •if the client is unaware that proceedings are imminent or have been served, s/he has a good reason for not attending any hearing;
    •if the client knows of the existence of proceedings but does not have a system in place for receiving communication about the case, s/he is unlikely to have a good reason for not attending any hearing;
    •although it is possible to apply to set aside a judgment made at a possession hearing even if the client did attend, this requires very compelling reasons for setting the judgment aside and you should seek specialist advice about orders made at a possession hearing.3Forcelux Ltd v Binnie [2009] EWCA Civ 854 (Adviser 137 abstracts)
 
1     The application is made ‘in the interests of justice’ under r3.1(2)(m) and (7) CPR; Hackney London Borough Council v Findlay [2011] EWCA Civ 8 (Adviser 145 money advice abstracts) »
2     Estate Acquisition and Development v Wiltshire [2006] EWCA Civ 533 (Adviser 118 abstracts) »
3     Forcelux Ltd v Binnie [2009] EWCA Civ 854 (Adviser 137 abstracts) »
Suspending a warrant of delivery
If the client wants to keep goods that are the subject of a hire purchase or conditional sale agreement, s/he can apply on Form N244 (see here) to suspend the warrant of delivery. A financial statement should be supplied. Form N244 should be sent to the enforcing court. A fee of £14 is payable. See here for details about full or partial fee remission. An offer of payment must be made that will realistically repay the agreement and arrears. A court is unlikely to agree to very small payments compared with the original contractual sum. If this is not possible, try to renegotiate with the creditor the payments due under the agreement, or consider a time order (see here).
Varying the terms of a suspended or postponed possession order
If the repayments under a suspended order, or any other terms of an order, require a change, the client can apply back to the court for the order to be changed or varied. Application is on Form N244 (see here) and a fee of £14 is payable. See here for details on applying for full or partial fee remission. It is always better to apply to vary an order if circumstances have changed, rather than be served with a warrant and have to apply to suspend it. For example, if the client is on maternity leave and therefore has a reduced income for a period, she could apply for a reduction in payments, or if a client unexpectedly finds employment, s/he can apply for a possession order to be suspended because s/he can now make payments.
Suspending a warrant of possession
Following the issue of a warrant, a notice of eviction on Form N54 is sent or delivered from the court, stating a date and time when the enforcement agents (bailiffs) will evict the client from her/his property. The client can apply for a warrant of possession to be suspended at any time before the date and time specified on the warrant, although it is preferable to apply as early as possible.1For issues to consider when dealing with warrants of possession for rent arrears, see M Robinson, ‘Hard Times’, Adviser 149; see also J Luba and D Malone, ‘Staying, Suspending and Setting Aside Possession Warrants’, Legal Action, June 2012
If the possession order was made on a mandatory ground (such as ground 8 for assured tenants) or following the section 21 procedure, execution of the warrant can only be delayed for up to 42 days from the date of the original possession hearing. In practice, 42 days have normally elapsed before the warrant is due to be executed and so no further stay can be granted.
Form N244 should be completed (see here), showing:
    •how the client’s circumstances have changed since the possession order was made;
    •that the equity or rental revenue of the creditor is not threatened by a suspension;
    •a well-supported offer of payment and a lump sum (or first payment), if possible;
    •if the client does not wish to remain in the property, that arrangements are in hand for sale of the property or rehousing, but that this will take time.
Form N244 should be accompanied by a financial statement. A fee of £14 is payable.2Civil Proceedings Fees Order 2008 as amended by Court Fees (Miscellaneous Amendments) Order 2020, Fee 2.7. This fee is payable on an application ‘to vary a judgment or suspend enforcement, including suspending a warrant of possession’. See here for details on applying for full or partial fee remission. If possible, take the form to the court rather than posting it as there will be little time available.
If the lender or landlord issued the possession action using the ’possession claim online’ process and the client wants to make her/his application online, any court fee must be paid either by debit card or credit card. The possession claim online website contains a list of organisations through which the client can claim full or partial fee remission online. Otherwise, Form N244 must be filed, and any application for fee remission must be made, in person.
A hearing is granted almost immediately and the client must attend. You should always try to negotiate directly with the creditor before the hearing and ensure that if an agreement has been reached, the details are communicated to the solicitor or agent who will be representing the creditor at the hearing. If possible, arrange for confirmation in writing so the client can take this to the hearing in case there is any dispute. If no agreement can be reached, the matter must be presented clearly before the district judge, using similar arguments to those covered on here. At the same time, it may be necessary to ask for the payment order to be varied (reduced) to a level the client can afford.
In theory, there is no limit to the number of applications that can be made to suspend a warrant, but if the client persistently applies and then fails to make payments, the application may be refused and s/he may be told that s/he cannot make any further applications without leave of the court. In this case, assuming that the application is realistic, the client must ask for leave of the court to apply, on Form N244, before continuing on the same application to explain the reasons. The court usually considers granting leave to apply first. If granted, it then considers the application for suspension in the same hearing. Should the client fail to comply with the terms of suspension or the period of suspension expires, the creditor must apply to the court to re-issue the warrant on Form N445, giving the client the opportunity to apply for a further suspension, if appropriate.
If the application is refused, the eviction usually takes place on the date and time on the warrant. The client may ask for a short suspension (eg, two weeks) to find alternative accommodation. Alternatively, in mortgage cases, if repossession is granted, the client could ask to stay in the property while the lender sells it.3Cheltenham and Gloucester Building Society v Booker [1996] 29 HLR 634 After the execution of the warrant of possession (ie, the eviction), no order for its suspension can be made unless:
    •the possession order itself is set aside; or
    •the warrant was obtained fraudulently; or
    •there had been an abuse of the process or oppression in the execution of the warrant.4Hammersmith and Fulham London Borough Council v Hill, The Times, 25 April 1994; see also Cheltenham and Gloucester Building Society v Obi [1994] 28 HLR 22 It appears that ’oppression’ is not limited to conduct by the creditor but can extend to conduct by the court – eg, misleading information from court staff on the procedure for suspending a warrant.5Hammersmith and Fulham London Borough Council v Lemeh [2001] 33 HLR 23 (Adviser 83 abstracts); Lambeth London Borough Council v Hughes [2000] All ER(D) 622 (Adviser 84 abstracts)
 
1     For issues to consider when dealing with warrants of possession for rent arrears, see M Robinson, ‘Hard Times’, Adviser 149; see also J Luba and D Malone, ‘Staying, Suspending and Setting Aside Possession Warrants’, Legal Action, June 2012 »
2     Civil Proceedings Fees Order 2008 as amended by Court Fees (Miscellaneous Amendments) Order 2020, Fee 2.7. This fee is payable on an application ‘to vary a judgment or suspend enforcement, including suspending a warrant of possession’. »
3     Cheltenham and Gloucester Building Society v Booker [1996] 29 HLR 634 »
4     Hammersmith and Fulham London Borough Council v Hill, The Times, 25 April 1994; see also Cheltenham and Gloucester Building Society v Obi [1994] 28 HLR 22 »
5     Hammersmith and Fulham London Borough Council v Lemeh [2001] 33 HLR 23 (Adviser 83 abstracts); Lambeth London Borough Council v Hughes [2000] All ER(D) 622 (Adviser 84 abstracts) »
Appealing to a judge
If a client disagrees with a judgment or order made by a district judge and none of the options discussed on here–here are applicable, s/he must appeal if s/he wishes to challenge the judge’s decision.
If the judgment or order with which the client disagrees was made in her/his absence, s/he should consider applying to set aside the order and for a rehearing, as described on here. An appeal might be appropriate if, for instance, the client did not act ’promptly’ or did not have a good reason for not attending the hearing but not, for example, if her/his case has no reasonable prospect of success.1Bank of Scotland v Pereira [2011] EWCA Civ 241
In a possession case, an appeal can normally only be brought on a point of law or procedure. If the judge has exercised discretion, the appeal court is unlikely to interfere with the decision even if it would have made a different decision in the case. Note: An appeal does not automatically operate as a stay of execution of the judgment or order.2r52.16 CPR However, the court does have discretion to grant a stay of execution pending the hearing of the appeal and this should be applied for in the notice of appeal. In coming to a decision on the application, the court is likely to consider the merits of the appeal.
 
1     Bank of Scotland v Pereira [2011] EWCA Civ 241 »
2     r52.16 CPR »
Adjournment
An adjournment is a court order to delay a hearing either for a specified amount of time or indefinitely. The county court can, at any time, either adjourn or bring forward the date of a hearing. It can decide to do this itself or because one or both of the parties have applied.
Alert: Since 19 March 2020, court staff may waive the application fee for an adjournment of a hearing because of the coronavirus outbreak. Ultimately, however, it will be the judge who decides whether the hearing will be adjourned or can still go ahead.1Guidance is available at gov.uk/guidance/courts-and-tribunals-living-with-covid-19
If a client unsuccessfully applies for an adjournment and the case is dealt with in her/his absence, s/he should normally apply to set aside the judgment or order and apply for a rehearing on the grounds discussed above rather than appeal. However, the client could appeal a refusal to set aside the judgment or order, provided there are grounds.
See here for more information.
 
1     Guidance is available at gov.uk/guidance/courts-and-tribunals-living-with-covid-19 »