Week 6 – Civil Blog ‘Civil Matters’ – The warrant of restitution – recovering possession after re-entry

What happens when a possession order has been executed, the locks have been changed, and the former occupier breaks back in? Depending on the facts of the case, the correct route may be a warrant of restitution.

The rule

CPR 83.26(8) provides that a warrant of restitution may be issued, with the permission of the court, in aid of any warrant of possession. The application for permission may be made without notice and must, under CPR 83.26(9), be supported by evidence of two things – wrongful re-entry into possession following the execution of the warrant of possession, and such further facts as would, in the High Court, enable the creditor to have a writ of restitution issued.

The warrant is not a fresh remedy. It is a supplementary writ of execution in aid of the original warrant, resting on the footing that the re-entry is a continuation of the wrongful occupation which the original order addressed. No new claim is issued, no fresh hearing on the merits is required, and the application is made within the existing proceedings.

The test

The second limb of CPR 83.26(9) imports the old High Court practice, and the governing authority is Wiltshire County Council v Frazer (No 2) [1986] 1 WLR 109. Simon Brown J held that a writ of restitution may issue where there is “a plain and sufficient nexus between the original recovery of possession and the need to effect further recovery of the same land” – in other words, where the episodes of trespass are properly regarded as essentially one transaction. In Frazer itself the writ was against occupiers who were largely strangers to the original proceedings and who returned some two years after execution. Where the person re-entering is the original defendant, within months of eviction, the case is a fortiori.

The evidence in support should establish that the original order remains in force, unsatisfied, unstayed and not under appeal, that the warrant of possession was duly executed and possession delivered up, the identity of the re-enterer or the nexus between the re-enterer and the original defendant, the circumstances and timing of the re-entry, and that no supervening right, licence or consent to occupy has arisen since execution. It is also worth addressing why restitution rather than fresh proceedings is the proportionate course, although on a clear nexus that conclusion tends to follow.

In practice

Earlier this week I was instructed in a matter involving precisely this scenario – a possession order made in aid of an order for sale, executed at the third attempt, followed by the defendant’s re-entry some months later. Permission to issue a warrant of restitution was granted by the Circuit Judge at Truro County Court, alongside other relief directed at preventing recurrence, including an injunction restraining re-entry and interference with the sale and, by way of belt and braces, a penal notice added to the original order. The warrant remains the quickest and most economical solution to post-eviction re-entry but it is likely, in this case, that the injunctive relief will be where the real value lies thereafter.