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Court hearings after initial order

This content applies to England & Wales

How the borrower can challenge or amend the order made, for example because of a change in circumstances.

Challenges and/or amendments

The borrower may wish to challenge or amend the order that has been made. The borrower can:

  • appeal against the order
  • apply to set aside an order
  • apply to vary an order
  • apply to suspend an outright order for possession.

After a warrant has been issued, the borrower can:

  • apply to stay a warrant for possession
  • apply to suspend a warrant for possession.

If the property is rented out, an 'unauthorised' tenant may be able to take action to prevent enforcement of a possession order by up to two months (see the Tenants of mortgagors section).

Appeals

A borrower wishing to appeal can do so by filing an appellant's notice (N161).[1] An appeal will only be allowed where the judge's decision was wrong or unjust because of a serious procedural error or other irregularity in the proceedings. The general rule is that a borrower cannot appeal against a finding of fact, or against the exercise of discretion by the judge. Most cases are likely to have been decided by the judge on the particular facts and it will be difficult to show that the judge made a legal error that will give rise to an appeal. Specialist advice is probably necessary since there are stringent time limits and onerous procedural rules.

Other applications

The other applications require a general form of application (N244), which is available free of charge from the county court. The borrower should also attach a witness statement, setting out the facts and the arguments.

Setting aside an order

If the borrower did not attend court, s/he may be able to get the original court order set aside so that a completely fresh order must be made.[2] The borrower needs to:

  • have a good reason for not attending court, eg because s/he did not receive the summons or because of serious illness
  • act promptly
  • be able to show reasonable prospects of success at the hearing.

Reasonable prospects of success do not necessarily mean a good defence to the possession case, but should mean at least reasonable grounds on which a more favourable order could be made, such as an adjournment or suspended possession order. The hearing will normally be in front of a district judge, unless the matter is particularly complicated or there are special reasons for the hearing to be in front of a circuit judge.

Varying an order

If there has been a change in the borrower's circumstances and ability to pay, the judge can be asked to vary the terms of the order to reflect this.[3] This would normally be in situations where the borrower can no longer afford the payments specified in the order and is requesting a reduction in the payment level. If the borrower cannot meet the terms of the order and does not ask for the terms to be varied, s/he will be in breach and the lender would be able to apply for a possession warrant. If the order is breached before going back to court, the borrower has the option of asking for possession to be postponed or the warrant to be suspended (see below).

Suspending an outright possession order

Where the court has granted an outright possession order, it may be possible for the borrower to get the order suspended if s/he has grounds for doing so.[4] The borrower does this by asking the court to postpone the date for giving up possession. This is at the judge's discretion, but an application may be successful if, for example, there has been a change in circumstances since the original order was made, or if there is new evidence available that was not before the judge at the previous hearing. Whatever reasons are put forward, it is critical that the borrower can pay off the arrears in a reasonable period. If the application is successful, the judge will vary the terms of the original order by postponing the date for possession on terms, effectively turning an outright order into a suspended order.

Staying or suspending a warrant for possession

Where the lender has obtained a possession warrant, the borrower can ask the court to exercise its power to stay the execution of the warrant.[5] Often this is a temporary remedy while the borrower waits for her/his appeal or application to vary an order to be heard, but the Administration of Justice Act 1970 does not limit the time for which a stay can be imposed. The court can exercise such power only where the borrower can show her/his ability to repay the loan within a reasonable period of time.[6]

If the property is rented out, an 'unathorised' tenant may be able to take action to delay eviction by up to two months (see the Tenants of mortgagors section).

Discharging an order for possession

When making a suspended possession order, the court can include a ‘proleptic provision’. This is a provision that says that the order will be discharged if the borrower meets the conditions specified in the order.[7]

Where the suspended possession order does not include a proleptic provision the order, and its conditions, remain in force and lender could take action to enforce it even if the original arrears had been cleared.[8] Where the borrower has cleared the arrears s/he can apply to the court, on Form N244, to discharge the order.[9]

[1] rule 52 Civil Procedure Rules SI 1998/3132 (as amended).

[2] rule 39.3(3) Civil Procedure Rules SI 1998/3132 (as amended); Bank of Scotland plc v Pereira [2011] EWCA Civ 241; Lukan v Ghana Commercial Finance Ltd [2018] EWHC 418 (QB).

[3] s.36(4) Administration of Justice Act 1970; s.135(4) Consumer Credit Act 1974.

[4] s.36(2) Administration of Justice Act 1970; s.135 Consumer Credit Act 1974.

[5] s.36(1) Administration of Justice Act 1970; Order 37 County Court Rules 1981.

[6] Zinda v Bank of Scotland Plc [2011] EWCA Civ 95; Jameer v Paratus AMC [2012] EWCA Civ 1924.

[7] s.36(2) and (3) Administration of Justice Act 1970.

[8] Zinda v Bank of Scotland Plc [2011] EWCA Civ 95.

[9] CPR 3.1(7); see also paras 100 and 107 Knowsley Housing Trust v White; Porter v Shepherds Bush Housing Association; Honeygan-Green v Islington LBC [2008] UKHL 70.

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