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Appealing against a possession order

This content applies to England

Right of appeal against a possession order.

An appeal against a possession order normally has to be made within 21 days of the date the order was made. An appeal can normally be brought only on a point of law. The rules governing appeals are set out in Civil Procedure Rule (CPR) 52. There is usually a court fee to pay and costs involved in obtaining the supporting documents required.

The first step is to complete Form N161, which is an application for permission to appeal. There are detailed guidance notes accompanying the form to assist in its completion. It details the options available and lists the supporting documents required.

Permission to appeal can be sought from the judge at the possession hearing, or if this is refused, by an application to the court which would hear any appeal. Alternatively, an application for permission can be made directly to the appeal court.

Permission to appeal will normally only be given where there is a good prospect of success. In addition, the person appealing needs to be able to provide all the supporting documents, including copy of the possession order appealed against and an approved transcript of the relevant court hearing. The latter can sometimes been obtained at public expense, however, the court is entitled to refuse to provide it at public expenses where it considers that the appeal has not a good prospect of success.[1] There is no right of appeal against a decision of an appellate court to give or refuse permission to appeal and the only remedy available in such cases is to apply for judicial review where exceptional circumstances warrant such application.[2]

Most possession orders are made in the county court by a district judge, and appeal is made to the circuit judge (also at county court level, though a circuit judge may cover a number of different county courts). An appeal against the decision of a circuit judge is to be made to the Court of Appeal in a case tried on the multi-track or to the High Court in a case tried on the fast track.

If the appeal is successful the court can set the order aside or, where possession was made on a discretionary ground, vary the order. For more information see the pages on Setting aside a possession order and Varying or postponing a possession order.

Reopening of final appeals

In some exceptional cases, for example when the original possession order was made without the county court considering the Article 8 rights of the occupier despite such a defence having been raised during the possession proceedings (see Public law and human rights defences for more on Article 8), it may be possible to apply to reopen an appeal to the Court of Appeal or the High Court, but only if all the following conditions are satisfied:[3]

  • it is necessary to do so in order to avoid real injustice
  • the circumstances are exceptional and make it appropriate to reopen the appeal, and
  • there is no alternative effective remedy.

[1] Ismail and another v Genesis Housing Association [2012] EWHC 1591 (QB).

[2] s.54(4) Access to Justice Act 1999; Sivasubramaniam v Wandsworth County Court [2002] EWCA Civ 1738; R (on the application of Tummond) v Reading County Court and another [2014] EWHC 1039 (Admin).

[3] CPR 52.17 and PD 52A; (1) Lawal (2) Lawal v Circle 33 Housing Trust [2014] EWCA Civ 1514.

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