Changing court orders in mortgage possession proceedings
Ways a borrower can apply to the court to challenge, alter or discharge a possession order. This advice applies only to residential mortgages.
Options for changing a possession order
The borrower may wish to challenge or amend the order that has been made. A witness statement is likely to be required in most applications to court.
Depending on the circumstances it may be possible to:
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, in addition to the above the borrower can apply to stay a warrant for possession or to suspend a warrant for possession.
If the possession order is successfully appealed or set aside, the warrant is discharged.
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. An authorised tenancy is binding on the lender.
Appealing against a possession order
An appeal against a possession order should be made within 21 days of the date the order was made unless the court grants an extension. An appeal can normally be only be brought on a point of law. The fact that the borrower disagrees with the decision is not a ground for appeal.
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. A transcript of the original hearing must be requested on form EX107. The court may agree to pay for the transcript if the borrower does not have sufficient funds.
A borrower can start an appeal by filing an appellant's notice (N161). An appeal will only be allowed where the judge's decision was wrong or unjust because of a serious procedural error or irregularity. The general rule is that a borrower cannot appeal against a finding of fact, or against the exercise of discretion by the judge.
There is no automatic right to introduce new points on appeal. The appellate court may refuse to admit new evidence and the decision to exercise discretion in the borrowers favour would depend on the analysis of relevant factors, such as:
whether the original decision was made at a trial or at a short summary hearing
the nature of the new point
whether the opposing party would suffer prejudice as a result
The Court of Appeal has held that where an initial order is made at a short summary hearing and the appeal is brought promptly, the borrower may raise new points on appeal. The points raised by the borrower would have resulted in the case being listed for a trial of the issues if they had been raised in the original hearing.
Applying to set aside or vary an order
Applications to set aside or vary an order should be made on form N244, which is available from the County Court. The application should set out the information the borrower wants the court to take into account (see question 10 on form N244).
Additional information in support of the application can be provided in either:
a witness statement
a statement of the case, or
An application to set aside an order should provide an outline of the defence the borrower seeks to rely on.
Setting aside an order
When an order is set aside it is as if that order was never made. Any outstanding warrant of possession will automatically be discharged if the underlying order is set aside.
Establishing whether the order was made at trial
Most courts hear a number of possession claim during a morning or afternoon session. Typically, the court will make a decision in a 5 to 10 minute hearing. The Court of Appeal has held that in the absence of exceptional circumstances these hearings do not constitute a 'trial'.
A possession order was made at a trial if the matter has been decided after:
case management directions, and
allocation to a track.
Setting aside orders made at a hearing
An order made at a hearing in the normal housing possession list is similar to a summary judgment and not an order made at trial. The court can exercise its general powers of case management and consider any relevant matter in determining whether it is just to set aside the possession order.
The matters the court is likely to consider include:
the interests of the administration of justice
whether the application has been made promptly
whether there is a good reason for not attending the hearing (if applicable)
the effect setting aside the order would have on each party
the strength of any defence or evidence
In the absence of any unusual factors the court will also consider the three-stage test for setting aside orders made at trial.
Setting aside orders made at trial
If the borrower did not attend court, they may be able to have the possession order set aside.
The borrower needs to demonstrate that they have:
a good reason for not attending court, for example because they did not receive the claim form or because of serious illness, and
acted promptly after finding out about the possession order, and
a defence with reasonable prospects of success
There are no definitive guidelines for what constitutes 'acting promptly' or a 'good reason' for not attending the hearing. It is a discretionary decision based on the circumstances of the case.
Varying an order
The borrower can apply to vary the possession order if:
their circumstances have changed since it was made
the borrower did not attend the hearing and an outright order was made
In cases where the borrower has made a proposal that was rejected by the court, it is not possible to apply to vary the order without a change in circumstances. A challenge to the court's decision can only be made by way of an appeal.
An application to vary can be made 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 comply with the terms of the order and does not ask for it to be varied, the order is likely to be breached and the lender would be able to apply for a warrant of possession.
If the terms of a suspended possession order are breached before going back to court, the borrower has the option of asking for possession to be suspended on new terms. If a warrant has been issued the borrower can ask for the warrant to be suspended on the same terms.
Suspending an outright possession order
Where the court has granted an outright possession order, it may be possible for the borrower to apply to have the order suspended if they have grounds for doing so. The borrower can ask for possession to be suspended as long as payments are made, or postponed until a certain date. This is at the court'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.
The court has the same powers to suspend possession that apply at the initial hearing. This means the court is likely to require the arrears or balance to be paid within a reasonable period. See Types of orders for more information.
Staying or suspending a warrant for possession
Where the lender has obtained a warrant of possession, the borrower can ask the court to stay the execution of the warrant. This can be a temporary remedy while the borrower waits for their appeal or application to vary an order to be heard. The Administration of Justice Act 1970 does not limit the time for which a stay can be imposed.
The borrower could ask for the warrant to be suspended on terms in the same way as a suspended possession order. The court can exercise this power only where the borrower can show their ability to repay the loan within a reasonable period.
Tenants of borrowers
If the property is rented out, an 'unauthorised' tenant may be able to take action to delay eviction by up to two months.
Read more about how tenants can delay eviction on Shelter Legal.
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.
Where the suspended possession order does not include a proleptic provision it remains in force and the lender could take action to enforce it even if the original arrears have been cleared. Where the borrower has cleared the arrears they can apply to the court on Form N244, to discharge the order.
Last updated: 22 March 2021