Access injunctions — committal or forced entry?

The recent appeal case of Sovereign Housing Association Limited (“Sovereign”) v Jane Hall dealt with the question of whether it was appropriate for the court to grant an order for forced entry after a defendant had failed to comply with an access injunction.

Background

Sovereign had originally been granted an injunction to enable them to access the property to carry out an inspection in compliance with the terms of the lease.

Despite having obtained the injunction the defendant failed to provide access and, as a result, Sovereign made an application to the court seeking permission to force entry.

The judge was sympathetic to Sovereign but felt that the basis of the application was flawed and that she did not have the jurisdiction to make the order.

Sovereign had sought an order under Civil Procedure Rules (“CPR”) 25.1(1)(c) and 25.1(1)(d) which provide that the court may grant the interim remedy of

a) “an order — for the detention, custody or preservation of relevant property” (CPR 25.1(1)(c)(i));
b) “an order — for the inspection of relevant property” (CPR 25.1(1)(c)(ii));
c) “an order authorising a person to enter any land or building in the possession of a party to the proceedings for the purpose of carrying out an order under sub-paragraph (c)” (CPR 25.1(1)(d)).

The judge rejected the application on the basis that she did not have jurisdiction and that Sovereign should have sought committal of the defendant.

Appeal

Sovereign appealed the decision and, additionally, argued that CPR 3.1 and CPR 70.2A(2) conferred on the court the appropriate ability to grant forced entry.

CPR 3.1 is the court’s general case management powers.

CPR 70.2A(2) provides that “subject to paragraph (4), if a mandatory order, an injunction or a judgement or order for the specific performance of a contract is not complied with, the court may direct that the act required to be done may, so far as practicable, be done by another person, being — (a) the party by whom the order or judgment was obtained; or (b) some other person appointed by the court”.

CPR 70.2A(4) provides that “paragraph (2) is without prejudice to — (a) the court’s powers under section 39 of the Senior Courts Act1981; and (b) the court’s power to punish the disobedient party for contempt.”

A “disobedient party” is defined as “a party who has not complied with a mandatory order, an injunction or a judgement or order for the specific performance of a contract.”

Sovereign argued that the defendant was a disobedient party and, pursuant to CPR 70.2A(2), the injunction was an injunction which sought to enforce a contract or, if nothing else, was a mandatory order. Sovereign therefore argued that the court had the ability to “direct that the act required to be done may, so far as is practicable, be done by another person” — i.e. the granting of access.

Decision

The circuit judge in the county court was satisfied that they could enforce orders, and that CPR 70.2A covered the exact circumstances of the case with the defendant clearly being a “disobedient party”, and the court therefore able to order that the act required to be done be carried out — i.e. the granting of access.

The court was not concerned that access was gained by “unconventional means” of forced entry, and made the comment that “the door belongs to the claimant and so any damage done to the door or the frame would not be to the defendant’s property”.

The court also expressly referred to CPR 70.2A(4) and stated that the provision “makes it clear that the powers conferred by paragraph 2 are without prejudice to the court’s powers under s39 of the Senior Courts Act 1981 (the power to execute instruments) and the court’s powers to punish the disobedient party for contempt” which the judge felt overcame “any perceived difficulties that proceedings for contempt are the only, or even the preferred, way of dealing with a disobedient party”.

Comment

The court’s decision, whilst not binding as it is a county court decision, outlines that seeking forced entry is a viable option for landlord’s when a defendant fails to provide access following the seeking of an access injunction. Following breach of an injunction a landlord would be able to seek committal however the primary concern of a landlord is usually to gain access to the property to carry out the relevant inspection or works. Seeking a forced entry order is likely to be a more cost effective and quicker route.

Although not directly relevant to the appeal, consideration should also be given as to whether or not it is appropriate to rely on CPR 25 when seeking forced entry. We consider that it is not the appropriate provision to seek to rely on given it provides that the court may grant an “interim” remedy whereas the seeking of forced entry is a final remedy.

We have obtained a large number of forced entry orders and we would be delighted to help if it is something you wish to consider.