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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Admiral Taverns (Cygnet) Ltd v Daniel & Anor  EWHC 1688 (QB) (21 July 2008)
Cite as:  37 EG 153,  1 P & CR 6,  EWHC 1688 (QB),  3 EGLR 59,  30 EG 82,  NPC 86
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| ADMIRAL TAVERNS (CYGNET) LIMITED
|- and -
Peter Petts (instructed by Ford &Warren) for the Respondent
Hearing dates: 14 July 2008
Crown Copyright ©
Mr. Justice Teare :
"This is an application by Admiral Taverns (Cygnet) Limited to discharge an order made by myself on 17/06/08, in which I granted a stay of execution of a warrant of possession, pending the determination of permission to appeal. The order had been made by HHJ Gibson on 29/08/08. The application for permission to appeal has not been determined.
I should point out that at this hearing the Defendants have not been represented. Solicitors are on record. They were served, but have not appeared. Shortly before the hearing, Ford & Warren Solicitors contacted the solicitors for Defendants, but, I am told, the phone was put down
The background to this matter is that the Claimant is the head lessee of the Castle Tavern and entitled to the immediate reversion.
One Stephen Shaw occupied the Property pursuant to a lease dated 20/09/07.
The term of that lease expired on 21/12/07. It is believed that Mr Shaw went to Canada.
The Claimant, intending to assign the head lease, entered into a caretaking agreement with the first Defendant pending that assignment. The second Defendant is the first Defendant's partner.
In February 2008, pursuant to clause 7 of the caretaking agreement, Mr Roger Williams, on the Claimant's behalf, gave the first Defendant notice terminating the same with effect from 04/04/08.
On that date, Mr Williams attended the Property with the prospective assignees. The second Defendant refused to give up possession, claiming he had been promised a long lease.
On 04/04/08, Ford & Warren Solicitors wrote to the first Defendant confirming the termination of the caretaking agreement and demanding possession.
Possession was not delivered up and proceedings were issued in the Lambeth County Court on 16/04/08.
The hearing of that claim was fixed for 29/04/08. The second Defendant arrived late. Despite the second Defendant having informed the court staff that he would not be at court on time, HHJ Gibson heard the claim in the second Defendant's absence and made an order for possession forthwith and costs.
The order having been made, the second Defendant arrived. He presented the Judge with a Defence and a purported lease of the Property granted to him by the Claimant.
The Judge declined to vary his order.
A warrant of possession was issued on the same day, which was due to be executed on 18/06/08.
The second Defendant lodged an appellant's notice, out of time, on 21/05/08, which included an application to stay the warrant, but no application for an extension of time.
The application for the stay was considered by me on the documents alone on 17/06/8. My reasons for granting the stay were as follows:
(i) The decision of HHJ Gibson was taken in the absence of the Defendant/Applicant notwithstanding that the Defendant/Applicant had informed the Court office of his likely late arrival and had been reassured by the court staff the case would not be called on before he arrived.
(ii) There is evidence that the Defendant/Applicant had been in possession of the property under some form of agreement since 07/01/08 and had spent money refurbishing the property. The Claimant/Respondent appears to say that the form of agreement relied upon is a forgery. However, there does not appear to have been a judicial determination of that issue, notwithstanding the comments made by the Judge after he had made his ruling and the Defendant/Applicant had arrived.
(iii) I consider that there should be a stay of execution of the warrant for possession pending the determination of the application for permission to appeal. Whether it is continued thereafter will be a matter for the Judge deciding the application for permission to appeal.
(iv) I have noted the letter dated 30/05/08 from Ford & Warren and in particular the last paragraph. Although it is said that a Notice to complete the sale of the property has been served there is no indication that the grant of a stay pending determination of the application for permission to appeal will cause irreparable prejudice.
(v) A transcript of the hearing before HHJ Gibson on 29/04/08 should be obtained as soon as possible.
The application to discharge raises, in effect a single point, that is that s. 89 of the Housing Act 1980 restricts the power of the court to grant a stay to 14 days after the order for possession, save that if exceptional hardship is caused the date may be postponed to 6 weeks.
This point was not drawn to my attention when I considered the application to stay on documents
I am very grateful to Mr Petts who has put the matter to me very fairly in the absence of the Defendants.
He referred me to the court's case management powers to stay in the CPR and the court's inherent jurisdiction. However, he submits that they are both subject to primary legislation; in particular section 89 of the Housing Act.
He refers me to sub section (2) of section 89 and says that none of the exceptions apply
There are three previous cases on section 89:
Bain & Co v Church Comrs for England  1 WLR 24
Hackney LBC v Side by Side (Kids) Ltd  1 WLR 363
Boyland & Son Ltd v Rand  HLR 24
In the first of those cases Harman J held that "court" in s. 89 meant "County Court". He said that he reached that conclusion "more by way of bold leap in the dark than by way of reasoned proposition".
In the second case, Stanley Burton J considered the ambit of s. 89. and concluded that it was wide enough to include the high court. He said:
"18. On the face of it, section 89 is of general application. It is not expressly restricted to county court orders. The expression "court" is not specially defined so as to mean the county court. Looking at the section by itself, the natural meaning of "a court" is any court.
19. Leaving aside the decision in the Bain case, I find nothing in the Act to indicate that the expression "the court" means the county court in section 89, and clear indications that it includes the High Court. The long title to the Act includes the following: "An Act to give security of tenure, and the right to buy their homes, to tenants of local authorities and other bodies ... to make other provision with respect to housing; to restrict the discretion of the court in making orders for possession of land; and for connected purposes."
20. This does not hint at a restriction to county court orders. Nor does the context of section 89 itself. It is in Part IV of the Act, which includes sections 86 to 89. Section 86 refers to a county court as such when it refers to it and to the High Court as such when it refers to it. While it confers jurisdiction on the county court in respect of proceedings under Part I or Part III of the Act, as originally enacted it expressly envisaged that such proceedings might be taken in the High Court under those parts of the Act and, in subsection (3), imposed a costs penalty on a claimant who brought proceedings in the High Court that could have been taken in the county court. Subsection (3) has been prospectively repealed, but it is still in force. Given the express references to the county court and the High Court in section 86, it would be illogical to read the references to "a court" in the following sections as restricted to a county court. Moreover, the exceptions referred to in section 89(2) include proceedings that may be brought in both the county court and the High Court."
The third of the three cases was Boyland. The Court of Appeal was referred to the first two cases and Neuberger LJ, as he then was, said at para 12:
"I was invited to follow the decision of Bain, where Harman J had reached the slightly idiosyncratic conclusion that s. 89 did not apply to the High Court. I would take this opportunity of saying that, in my view, Stanley-Burton J was plainly right."
None of those three cases concerned an application for a stay pending a determination of an application for permission to appeal.
It is necessary to set out the sub-section (1) of s. 89 in full:
(1) Where a court makes an order for the possession of any land in a case not falling within the exceptions mentioned in subsection (2) below, the giving up of possession shall not be postponed (whether by the order or any variation, suspension or stay of execution) to a date later than fourteen days after the making of the order, unless it appears to the court that exceptional hardship would be caused by requiring possession to be given up by that date; and shall not in any event be postponed to a date later than six weeks after the making of the order.
In this case the Defendant, who has sought permission to appeal, has sought a stay of the execution of the order.
As Mr Petts has frankly acknowledged, section 89(1) does have a surprising consequence in that if there are good grounds for granting the appeal the court's powers to stay are limited to 14 days from the possession order and six weeks from the possession order in the case of exceptional hardship.
But he suggests that the section does not deny the appellants the right to an appeal and points out in his skeleton argument that permission to appeal could have been requested of the trial judge; the appellant's notice could have been lodged the day after judgment; an expedited appeal could have been requested. Instead, the second Defendant waited 22 days before filing his appellant's notice.
Those points are correct, but it would require the machinery of the High Court and Court of Appeal to move very quickly to avoid the apparent injustice which would be caused to a tenant who had been ordered to give up permission but then later won his appeal.
Nevertheless, the terms of s. 89 plainly apply to a stay of execution and that is the order I was asked to make on 17/06/08. The restrictions imposed by section 89 therefore apply. By that date the two week period had expired; it expired in mid May 2008. There is no reason to think that this is a case of exceptional hardship; even so, six weeks would have run out in about mid June.
I have reached the conclusion that the order I made must be set aside.
The Defendants are ordered to pay the Claimant's costs summarily assessed in the sum of £3,000.00."