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Lifting the stay

A County Court judge has been persuaded to use its discretion to lift the general stay on possession cases in order to enable a claim to be finalised. Anya Newman explains why.

Greatwell Homes sought possession from its tenant after he was convicted of 6 counts of sexual activity with a child, 2 counts of possession of an indecent photograph of a child and possession of extreme pornography. The offences took place within the property.

The procedural history

Greatwell Homes had applied for possession upon mandatory grounds and the proceedings were listed for a first hearing in August 2019. The tenant was in prison at that time however, his mother attended and requested time to file a defence. The deadline for filing came and went and the Court even allowed an extension when no application for one had been made however, no defence was ever filed.

The matter was eventually listed for hearing in January 2020. At that hearing there had been no contact from the defendant, his mother or the prison service (despite them having been reminded prior to the hearing). No defence had been filed and the Judge considered that the mandatory ground was made out and a possession order should be made.

A few days later, a letter was received from the defendant explaining that the prison had failed to establish a video link in order for him to attend the hearing. The letter was treated as a set aside application. A set aside hearing was listed for early March but once again the prison’s arrangements failed and the hearing was ineffective. By this time, the defendant’s partner had left the property and it was vacant with nothing being paid for its use.

The set aside application was to be relisted however at the end of March 2020 the general stay was imposed. Greatwell Homes wrote to the Court asking what its intention was and the hearing was relisted for mid-June. By the time of the effective hearing on the set aside application the defendant had been released from prison, however his release conditions required him to live in a different property.

The Court’s reasoning

The reasons why the Court was ultimately persuaded to lift the stay related to the delay in the case, the seriousness of the offences, the procedural steps not taken by the defendant and the particular circumstances surrounding the actual occupation of the property.

The reality of the grounds for possession were that the case had nothing to do with COVID-19, the offences having occurred well over a year before the matter was even issued in 2019. In addition, the judge was not impressed with the lack of defence and failure to make a relief application.

These factors alone however would not have been enough to lift the stay. Crucially, the judge found that it was in the public interest to lift the stay in this case: that the mandatory ground for possession should be allowed to take effect especially in light of the extremely serious convictions of the defendant and the vacant property which was accruing arrears. In addition, the judge found that the case was exceptional because the defendant would not be caused to move from the property due to the decision to lift the stay as he was already living elsewhere. Indeed, there was an argument that not lifting the stay may have led to the defendant in fact moving back into the property if his release terms were varied. Therefore, if the purpose of the stay was to protect the public from unnecessary house moves, not lifting in in this instance might have had the opposite effect.

Set against a background of serious offences, a mandatory ground for possession and no defence, these combined factors persuaded the judge to deal with the application and dismiss it, allowing Greatwell Homes to recover possession.

Anya Newman is a barrister at St Ives Chambers. She can be contacted on 0121 236 0863 or This email address is being protected from spambots. You need JavaScript enabled to view it..

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