Summary

A freeholder who was entitled to the forfeiture of the lease on a flat was granted a writ of restitution in respect of a writ of possession which had been stayed on the application of defendants who had failed to attend court on numerous occasions, were using the court's processes to engineer delay to their own advantage and had no prospect of successfully challenging the writ of possession.

Facts

The claimant freehold owner of a flat applied to set aside a stay of a writ of possession, for a writ of restitution restoring the writ of possession, and for an expedited hearing of the applications.

The first defendant had held a long lease on the flat which had expired in 2015. The claimant was entitled to forfeiture of the lease. It appeared from the electoral register that the second and third defendants were husband and wife and were living in the flat. It also appeared that the first and second defendants were the same person. Various hearings had taken place without any appearance by the defendants who failed to comply with numerous court orders and only communicated with the claimant and the courts via email. Following a costs management conference in April 2017, the first defendant and the claimant reached a settlement wherein he agreed to give possession of the flat to the claimant on 31 August 2017. A district judge's order recorded the agreement and noted that the matter of possession, to which the claimant was entitled, had been determined on its merits. Shortly before 31 August, the third defendant applied for the consent order to be set aside on the basis that she had not been aware of it and her signature had been forged. The matter was listed for hearing in February 2018 and shortly before that date she applied to join a fourth defendant who was said to be living in the flat. The claimant discovered that the flat was being advertised as a holiday letting. The third defendant failed to attend the hearing, but was represented and sought an adjournment on the basis that she had to take her daughter to a medical appointment. The matter was relisted for 1 March, but the third defendant did not show up and was not represented. The claimant was sceptical about the defendants' motives, use of the property for profit, delaying tactics and whether they lived in the UK. The claimant applied for the matter to be transferred to the High Court for enforcement. The county court judge held that the third defendant's application for the order of possession to be set aside had no real prospect of success, that there had been no reason for her absence when that order had been made, there was no defence to the possession claim, and fraudulent assertions had been made about her daughter's medical appointment. He dismissed the third defendant's applications and transferred the matter to the High Court. A master granted a writ of possession, notice of which was served on the defendants. The third defendant told the claimant that she had applied for a stay of that writ pending an application for it to be set aside. The claimant discovered that no application had been made so entered the property and changed the locks. Two days later a master granted a stay of the writ of possession and the defendants re-entered the property and changed the locks. The flat was again advertised as a holiday let. The defendants did not attend the instant hearing, but the third defendant provided a written statement.

Held

Expedited hearing - There was concern that the defendants were abusing the court process to engineer delay to their own advantage. They had been notified of the instant hearing, but had not attended and it was appropriate to deal with the claimant's applications on an expedited basis.

Third defendant's outstanding applications - The court considered the statement provided and assessed whether she had any realistic prospect of challenging the writ of possession. Both previous orders had been made on the merits and it had been held that there was no defence to the possession claim. The claimant was entitled to forfeiture of the lease. The third defendant might have had an argument in respect of her allegedly forged signature on the consent order, but she had had two opportunities to appear at hearings which she did not attend. The county court judge had still gone on to consider the case on its merits and his reasoned judgment could not be impugned.

Writ of restitution - There was a history of deliberate evasion and delay, evidence of profiteering, and no evidence of residence in the UK. Any appeal against the possession order was doomed and there was no prospect of successfully challenging the refusal to adjourn the set aside application. Convenience and justice were overwhelmingly in favour of granting the claimant's applications.

Applications granted