9:46 AM, 3rd September 2021, About 3 years ago 12
One of the comments we hear from landlords and their advisors is that District Judges are not prepared to make an Order allowing a possession claim to be transferred to the High Court for enforcement. However, our growing body of research on this point confirms that at least 10% of the District Judges, or just over 40 named District Judges, sitting in England and Wales are exercising their discretion to allow the enforcement of a possession order to be transferred. We hope to see this figure grow as we encourage more landlords to take the decision to transfer the enforcement of their possession order to the High Court.
The percentage of District Judges prepared to make an order is good news for landlords because we think Shergroup is the only High Court enforcement agency that is putting this data together to achieve a fair representation of what is going on in the county court system.
We feel there are some questions that are emerging from our research. We can now see clearly 40+ judges who are exercising their discretion to transfer a county court possession order to the High Court for enforcement. That’s a positive! The question is of course who are these judges, and why are they making these decisions? Is a pattern emerging between certain judges and courts refusing to grant permission to transfer? We are seeking answers to the narrow point on what makes a judge exercise his or her discretion one way or another.
We do know from our own cases that landlords are able to achieve a positive outcome from the Court to transfer an order for possession to the High Court, where they put forward a logical argument to show how a further delay in enforcing any possession order is going to have a negative impact on their position. In a Law Society Gazette article published back in 2014 District Judge Wendy Backhouse went as far as to say “Given that eviction by a county court bailiff … is the norm, cogent reasons for a transfer to the High Court should be given. Applications under section 42(2) of the County Courts Act rarely give any evidence of delays in bailiff appointments in that particular court or of the hardship apparently being caused to the landlord, both of which are routinely cited in support of the request. There are undoubtedly cases where a speedy eviction is necessary but applications seeking a transfer to the High Court should be backed up with evidence and not made as a matter of routine”. In short, to get the permission to transfer you have to be ready to persuade the judge to make an order outside of the norm.
In response to the Learned Judge’s points on evidence in support of such an application, we encourage landlords to prepare a Witness Statement setting out the impact of further delay. This could take the form of a statement from a landlord who is paying out a mortgage on a property and is not receiving any rent, who sets out details of the mortgage and the gap in revenue resulting from the tenant’s default. The landlord can explain the impact of the situation and how it is going to have an even greater adverse impact if enforcement is delayed. Evidence of the extent of the delay in the county court concerned should also be addressed. We encourage landlords to include in their evidence conversations with court staff and bailiff managers about the expected timetable for an eviction and to set this against the far quicker service provided by an HCEO.
We understand that the County Court Warrant of Possession is the norm – and it would work extremely well if the county court system of enforcement was not backed up with thousands of cases and only 300 bailiffs. High Court Enforcement Officers and their enforcement agents exceed this figure, have no backlogs and are able to scale their businesses to meet demand. It would be great if the civil servants and the judges themselves could look at partnering with their High Court counterparts to share the load to give landlords a better service.
As it is Shergroup continues to record transfer times for all possession orders sent to us for enforcement. The fastest processing times continue to be in the Central Office of the Royal Courts in the Strand compared to District Registries. That said, we see an improving picture with District Registries turning around Writs of Possession where following a rule change last year, they now have to be lodged. The court staff at Dudley District Registry continue to impress us with their turnaround times and customer service. As it is Shergroup has its roots in the Temple in London, and we have nothing but praise for the court staff in Central Office. If you are a landlord in the environs of London County Courts – except for Romford and Croydon, you can have the benefit of this first-class transfer service.
But what does all this mean for landlords, and why is it important? Proactive judges exercising their decision to allow a possession order to be transferred to the High Court, combined with courts that turnaround the paperwork to issue a Writ of Control all shave days of the time taken to carry out the enforcement of the order – the eviction itself. Days and weeks saved here, we think help landlords to re-let their property and get a paying tenant in place.
Is there an agenda to keep tenants in their homes that preceded even the pandemic? We couldn’t possibly comment. What we can say is that every week landlords seek our help in getting over this hurdle having been refused permission to transfer. And there is a steady stream of landlords who have the necessary permission and are deciding to use that permission to enforce using the High Court system.
If you need support on transferring a possession claim to the High Court then contact the Shergroup TEAM using the form below.