Enforcement of court judgments older than six years

Permission to enforce a court order outside the six year time limit should not be granted unless there are exceptional circumstances, and it is ‘demonstrably just’. 

Published May 2022

When permission to enforce is needed

A landlord or mortgage lender must apply for a possession warrant to instruct bailiffs (enforcement agents) to evict a tenant or borrower. 

When more than six years has passed since the possession order or money judgment was made, a landlord or lender must apply for the court’s permission to issue a warrant of possession or a writ of execution. 

A landlord or creditor who wants to enforce an order beyond the six year time limit needs to:

  • apply for permission of the court under the Civil Procedure Rules CPR 83.2 using Form N244

  • show valid reasons for the delay in seeking enforcement in a supporting witness statement

The application for permission is normally made without notice to the defendant. This means the landlord’s application for permission to enforce might end up being granted without the defendant having an opportunity to be heard. The court can direct that the application should be served on the defendant and dealt with at a hearing. 

The court should not grant permission to enforce a court order outside the time limit unless there are exceptional circumstances to justify it. 

How a court should consider an application    

The landlord or mortgage lender must show the court good reasons and evidence to support their application for permission to enforce a possession order outside of the six-year time limit. 

The courts have established that the burden of proof is upon the claimant to show that it is ‘demonstrably just’ to grant permission.  

Valid grounds the claimant could argue include where the circumstances of the case have changed to such an extent that they are now ‘out of the ordinary’, as in the cases of Duer v Frazer and Patel v Singh.

The claimant could also argue that the delays had been caused by faults in the administration of justice which were outside the claimant’s control, as in the case of National Westminster Bank Plc v Powney. 

In Patel, the Court of Appeal considered whether to allow enforcement of a judgment debt outside the time limit. At para 21 of the judgement, Peter Gibson LJ said:  

'… the court must start from the position that the lapse of six years may, and will ordinarily, in itself justify refusing the judgment creditor permission to issue the writ of execution, unless the judgment creditor can justify the granting of permission by showing that the circumstances of his or her case takes it out of the ordinary.'

Something ‘out of the ordinary’ 

In his article The Six-Year Itch: Permission to issue a warrant for possession after six years, Andrew Lane of Cornerstone Chambers considers when something ‘out of the ordinary’ occurs.

'The longer the period that has been allowed to lapse since the order the more likely it is that the court will find prejudice to the defendant (Duer @ 925E);

These are not easy “hurdles” for a landlord to overcome and in my experience their cause is not helped by the fact that many ignore the fact that their application for permission must be supported by a witness statement or affidavit “establishing the applicant’s right to relief” (CCR 26.5 (2)).'

The article refers to the County Court Rules (CCR) which at that time governed enforcement of judgments. The CCRs have now been largely replaced by the Civil Procedure Rules (CPR), but the substance remains the same.

As Andrew states in the article, it is not enough to simply describe what the landlord has or hasn’t done over the years, such as enter payment arrangements with the tenant or liaise with the housing benefit department. They must also show why the circumstances of the case take it 'out of the ordinary' and make it 'demonstrably just' for the permission to be granted.

It is for the landlord to prove the case and not for the tenant to show that they would suffer prejudice if the warrant were to be issued.

What the court can consider

In deciding whether to give permission to issue a writ of possession or a warrant of execution outside the general six-year time limit, the court is likely to consider: 

  • whether it is ‘demonstrably just’ to allow enforcement

  • whether there is any prejudice to the defendant in doing so 

  • what takes the case ‘out of the ordinary’ 

  • how long ago the order was made 

  • what steps the claimant has taken to recover the arrears since then 

  • what changes of circumstances have occurred 

  • what payments have been made, particularly in recent months

Further resources

Articles

The Six-Year Itch: Permission to issue a warrant for possession after 6 years by Andrew Lane, Cornerstone Chambers, July 2006.

About the author

Nicola McEwen is a professional support lawyer at Shelter.