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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Hackney v Side By Side (Kids) Ltd. [2003] EWHC 1813 (QB) (14 July 2003) URL: http://www.bailii.org/ew/cases/EWHC/QB/2003/1813.html Cite as: [2003] EWHC 1813 (QB), [2004] 1 WLR 363, [2004] 2 All ER 373, [2004] WLR 363 |
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QUEEN'S BENCH DIVISION
Strand London WC2 |
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B e f o r e :
____________________
THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF HACKNEY | (CLAIMANT) | |
-v- | ||
SIDE BY SIDE (KIDS) LIMITED | (DEFENDANT) |
____________________
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
NEIL MENDOZA (instructed by Bude Nathan Iwanier) appeared on behalf of the DEFENDANT
Hearing Date: 11 July
____________________
Crown Copyright ©
"UPON the parties by the signatures of their solicitors herein having agreed to the terms of this order in full and final settlement of all claims and counterclaims whatsoever in this action
AND UPON the parties hereby jointly applying to the Court pursuant to section 38(4)(b) of the Landlord and Tenant Act 1954 to authorise the Claimant and the Defendant to enter into the agreement to surrender annexed hereto at Appendix D in the circumstances and on the terms set out in the schedule to this Consent Order
AND BY CONSENT
IT IS ORDERED THAT
1. All claims and counterclaims herein be stayed upon the terms set out in the Schedule hereto save as regards enforcing those terms in which respect there be liberty to apply
2. Notwithstanding any application pursuant to 1 above, the Defendant do give up possession of the Nursery Site (as defined in the particulars of Claim) no later than by 5pm on 25th June 2003.
3. There be no Order for Costs save as may arise in respect of any application pursuant to 1 above.
4. . . . "
"Please note:
This judgment or order has been sent to the High Court for enforcement by (writ of Fieri Facias)(Writ of Possession against trespassers) only.
"The county court claim has not been transferred to the High Court. Applications for other methods of enforcement or ancillary applications must be made to the county court in which the judgment or order was made, unless the case has since been transferred to a different court, in which case it must be made to that court."
15. S 89 of the Housing Act 1980
"Restriction on discretion of court in making orders for possession of land.
(1) Where a court makes an order for the possession of any land in a case not falling within the exceptions mentioned in subsection (2) below, the giving up of possession shall not be postponed (whether by the order or any variation, suspension or stay of execution) to a date later than 14 days after the making of the order, unless it appears to the court that exceptional hardship would be caused by requiring possession to be given up by that date; and shall not in any event be postponed to a date later than six weeks after the making of the order.
(2) The restrictions in subsection (1) above do not apply if -
(a) the order is made in an action by a mortgagee for possession; or
(b) the order is made in an action for forfeiture of a lease; or
(c) the court had power to make the order only if it considered it reasonable to make it; or
(d) the order relates to a dwelling-house which is the subject of a restricted contract (within the meaning of section 19 of the 1977 Act); or
(e) the order is made in proceedings brought as mentioned in section 88(1) above."
23. Does s 89 apply to orders for possession made in the High Court?
"An Act to give security of tenure, and the right to buy their homes, to tenants of local authorities and other bodies . . . to make other provision with respect to housing; to restrict the discretion of the court in making orders for possession of land an for connected purposes."
" . . . possession of a dwelling house under a rental purchase agreement is a matter which prima facie would be a county court matter and I suspect is not a matter the High Court has ever had to consider."
"The jurisdiction of the High Court, derived in this sort of case originally from the jurisdiction of the Court of Chancery which itself, of course, derived from the prerogative of Her Majesty, is not to be taken to be fettered unless Parliament plainly intends so to do."
"I confess to finding the point puzzling. I started, as I observed, with a disposition to sense that the ordinary jurisdiction cannot have been intended to be so radically altered and cut down so as to restrict every court in this country, including the other part of the Supreme Court, the Court of Appeal, in its jurisdiction to limit orders for possession. I have no help from the text books which simply assume that the matter is a county court matter. I can, I think, take some help from the chapter heading to Part IV of the statute, and in the end, more by way of a bold leap in the dark than by way of reasoned proposition, I assert that 'a court' in section 89 means a county court."
"Where the judgment creditor makes a request for a certificate of judgment under Order 22, rule 8(1) for the purpose of enforcing the judgment or order in the High Court --
(a) by execution against goods; or
(b) where the judgment or order to be enforced is an order for possession of land made in a possession claim against trespassers,
the grant of a certificate by the court shall take effect as an order to transfer the proceedings to the High Court and the transfer shall have effect on the grant of that certificate."
35. Does s 89 apply to orders made by consent?
41. Does the Defendant have any ground at law for preventing the Claimant from obtaining possession?
46. Conclusion