Is there anything landlords affected by the county court bailiff delays can do?

The county court bailiff system has long been criticised by landlords for the lengthy delays that can be experienced waiting for an eviction date. Even before the Coronavirus pandemic, the wait after obtaining a possession order was more often months than weeks, with the impact generally more keenly felt by landlords with property portfolios in London than in regional areas. Given at the point of applying for a warrant, it has already been decided that the landlord is entitled to possession of the property, the prospect of waiting further weeks or months before the property can be recovered, especially where rent arrears are continuing to accrue or there is serious anti-social behaviour taking place in the property and impacting neighbours, has been a cause of significant frustration for landlords.

The news of the bailiff suspension by Central London County Court in June 2023, citing a lack of equipment leading to health and safety concerns, was therefore understandably unwelcome for London landlords. Whilst it is currently only Central London County Court that has suspended evictions, a number of the other London courts have transferred bailiff functions to Stratford Housing Centre, and significant delays in obtaining dates are being experienced. This has raised questions about whether other courts may follow, and this uncertainty is causing a number of our registered provider clients significant concern.

Given the current circumstances, I am often asked by clients if there is anything else that can be done or if the only option is to wait for a date to come through. Whilst possession claims can be issued and dealt with in the High Court, with enforcement carried out by High Court Enforcement Officers at higher cost but far more speedily, in practice the majority of possession claims are unlikely to meet the thresholds for issuing in the High Court. Further, the procedural cost and delays in obtaining the relevant permissions for existing cases, mean that in most cases there is unfortunately likely to be little option than waiting for a date to be listed.

Issuing claims for possession in the High Court 

Practice Direction 55A to the Civil Procedure Rules (CPR) states that possession claims should only be started in the High Court in exceptional circumstances, and that this may include where:-

(1) there are complicated disputes of fact;

(2) there are points of law of general importance; or

(3) the claim is against trespassers and there is a substantial risk of public disturbance or of serious harm to persons or property which properly require immediate determination.

The rules go on to warn that if the High Court considers a claim has been wrongly issued, it may be struck out or transferred to the County Court with the claimant unable to recover their costs incurred in issuing and transferring.

One example of circumstances that would be considered as exceptional was noted by the High Court in a 2016 Practice Note, and relates to cases involving tipping of significant amounts of waste material on commercial land. The waste material may contain dangerous substances which could pose a risk to persons gaining access to the site or those in the locality of the property. Where this concern exists, or it is likely that further tipping will occur, this may well justify urgent steps being taken to prevent further harm being caused to the property.

Unfortunately, it is unlikely that rent arrears cases and anti-social behaviour cases, unless exceptional on their facts, would justify a claim for possession being started in the High Court.

Transferring up to the High Court for the purposes of enforcement only

Under Section 42 of the County Court Act 1984 it is possible to seek the county court's permission to transfer the case to the High Court for the purposes of enforcement only. This could be done either within the initial claim to the county court, with an order to this effect sought at the first hearing, or in an existing case after a possession order has been obtained where there is a delay in enforcing via county court bailiffs. 

Where a claim is brought again Persons Unknown and involves trespassers, the landlord can automatically transfer to the High Court for enforcement without requiring permission from the County Court.

Whilst on the face of it this looks like an easy way of avoiding current county court bailiff delays, unfortunately, this is unlikely to be appropriate or practical in all residential possession cases.

It is not considered that citing delays in obtaining bailiff warrants in the County Court will be reason enough alone. All landlords in the affected courts will be in the same boat so to speak, and this may be seen by the county court as some landlords trying to jump the queue. This may be distinguished from cases where evictions are sought through Central London County Court where there is no indication of when the current suspension will be lifted. 

Further, obtaining the court's permission, if not obtained at the initial hearing when the possession order is granted, requires a formal application which may well end up being listed for a hearing for determination. Given the administrative delays in applications being listed, it is possible this could take several months to be heard, by such time it may well be that an eviction date would have been listed in the usual course of things. Further, it is open for the court could refuse permission, meaning further financial loss to the landlord. 

There may, however, be certain circumstances which would justify a transfer, and where the costs and possible delay of applying for permission would be outweighed by the impact should the property not be recovered at the earliest date.  Examples of successful applications I have made for permission to transfer up include a claim based on the mandatory anti-social behaviour ground 7A following the making of a closure order, and a case in which a tenant was soon to be released from prison and their conduct in the property posed a serious health and safety risk to other residents and the landlord’s employees.

Unfortunately, issuing and enforcement of possession claims in the High Court is not going to be appropriate in the majority of cases, but if the circumstances do justify it, this can be a vital tool in protecting property and limiting financial or other risk to the landlord. If you would like to discuss the specific circumstances of any ongoing cases, please do not hesitate to contact me.