EXECUTION—Warrant of possession—Stay of execution—Whether in power of appellate court to stay execution of possession order for more than six weeks from making of order— Housing Act 1980, s 89(1)

Admiral Taverns (Cygnet) Ltd v Daniel and another [2008] EWHC 1688 (QB); [2008] WLR (D) 247

QBD: Teare J: 21 July 2008

The restriction imposed by s 89(1) of the Housing Act 1980 on postponing enforcement of a possession order only applied to the court which made the order and not to a court exercising appellate jurisdiction in respect of the order.

Teare J so held when granting an application by the defendants for the setting aside of an order made by him in their absence on 10 July 2008, by which he had set aside a stay of execution granted on 17 June 2008 of a possession order made against them in the Lambeth County Court on 29 April 2008. On 21 May 2008, the second defendant had lodged an appellant’s notice which included an application for a stay of execution of the warrant of possession issued on 29 April. That application had been considered on the papers and a stay granted pending determination of the application for permission to appeal. The claimant had applied successfully for the stay to be lifted on the basis that s 89(1) of the 1980 Act precluded a stay of execution for more than 14 days from the date of a possession order (or six weeks in a case of exceptional hardship), and a period of six weeks had already expired before the grant of the stay.

TEARE J said that there was no previous authority on the interpretation and applicability of s 89(1) of the 1980 Act in the context of an appeal from the court which made the possession order. He considered that the subsection could be read either as restricting the powers of the appellate court, or as applying only to the court which made the order. However, the consequences of the former construction would be very odd and apparently unjust. It would not be possible save in very rare cases to bring on an appeal against a possession order within the s 89(1) time limits. Parliament could not have intended that even an alleged trespasser should be denied the fruits of a potentially successful appeal. Accordingly, the construction for which the defendants contended was to be preferred, and the discretion of an appellate court to order a stay of execution pending the determination of an appeal against a possession order was unrestricted.

Appearances: Peter Petts (Ford & Warren, Leeds) for the claimant; Owen Roach (Wainwright & Cummins) for the defendants.

Reported by: Alison Crail, barrister