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Property: Warrants for possession - appeals

It is well known that a mortgagor cannot apply to set aside a warrant for possession after it has been executed unless he can show oppression or serious procedural irregularity.

In a recent case in the Romford County Court (Jayashankar v Lloyds TSB [2011] EW Misc 9 (CC)) HHJ Platt was asked to decide whether, in the absence of any stay of execution, the Court had any jurisdiction to entertain an appeal from a refusal to set aside a warrant for possession once that warrant has been executed.The Judge was under the impression that there was no binding authority on this point but was directed to the earlier county court decision of HHJ Connor reported as Hyde Park Funding v Ioannou [1999] 3 CLD. 428. The Judge in the Barnet case had reached the view that "... a circuit judge hearing an appeal from a district judge could exercise all the jurisdiction which the district judge had and could make any order which the district judge could have made.". HHJ Platt did not agree. He considered the wording of section 36 of the Administration of Justice Act 1970 which states that "The court ... on making an order for delivery of possession of the mortgaged property or at any time before the execution of such judgment or order may - (i) stay or suspend execution of the judgment or order (ii) postpone the date for delivery of possession 'for such period or periods as the court thinks reasonable" and came to the conclusion that the highlighted words clearly meant that the Court's jurisdiction, even on appeal, came to an end once the warrant had been executed.

In fact, there was a binding authority on this point. As long ago as 1998 the Court of Appeal in the case of Mortgage Agency Services No. 2 Ltd v Bal & Bal (1998) 77 P & CR D7 considered this point and Millett LJ said "... Once the warrant for possession has been executed the statutory jurisdiction ceases to be exercisable. That is clear from the language of the section, which confers the jurisdiction 'at any time before the execution of such judgment or order'. This court has repeatedly stated that once the warrant for possession has been executed, the statutory jurisdiction is no longer exercisable." What this means in practice is that, if an application to set aside a warrant is refused and the applicant wants to appeal, he must apply for a stay pending appeal before the warrant is executed.

Adam Swirsky / 1st Oct 2011


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