Re-Occupation, Restitution & Penal Notices

Author: Andrew Wilson (FCICM), Wilson & Roe Co-founder, Solicitor and High Court Enforcement Officer

You’ve gone through the court process, instructed a High Court enforcement office, had a Writ of Possession enforced and successfully recovered your property. That’s where it should end – but what happens when the same people decide to break back in?

To go through the whole eviction exercise again requires a Writ of Restitution. To add further difficulty to this, under CPR 83.13(4A), an application to Court is needed for permission to issue, regardless of whether you needed permission to issue the original Writ of Possession.

In Practice

When discussing Writs of Restitution, a case springs to mind involving residents protesting the development of a housing estate. They believed that the area was common land and argued that it had been used in that way for years and should remain that way – a circumstance which is very prevalent today.

The initial possession was amiable but the locals immediately re-occupied and I was asked to enforce a Writ of Restitution. I did this with plenty of warnings given to the occupiers regarding contempt proceedings and the risk that they may go to prison, if they persisted.

After a long period of negotiations one of the locals decided to escalate the situation and kick in the headlights of a police car. That initial amiable atmosphere soon disappeared and the protest was brought to a swift end as a protestor was immediately arrested and charged with criminal damage.

Prior to the above event, the occupiers had started to disperse as it was fully explained that further obstruction would result in them being liable to contempt proceedings and risk Court action. Even so, for many months after the houses were built, they were reluctant to allow the new residents access to the main road from the development. Not very neighbourly…

Penal Notice & Contempt Proceedings

With certain occupiers who are very determined and obstructive this process can go on and on. That is why it’s recommended you only go for contempt proceedings after the eviction under a second Writ of Restitution.

To do this, you must show that you have endorsed a penal notice on an earlier Order if you are going to satisfy one of the requirements of a Contempt Application under CPR 81.4(e).

PENAL NOTICE

“If you the within named [ ] do not comply with this Order, you may be held to be in Contempt of Court and Imprisoned or Fined or your Assets may be Seized”

Currently, the penal notice would only be applied on the application for the second Writ of Restitution. If you suspect that you have an occupier who is likely to keep re-occupying, however, you can apply for a penal notice to be endorsed on the Order for the first Writ of Restitution.

You will still have to make a contempt application if the occupier re-occupies but it should save time with the court application money if you go down this route.

Things to remember

• Permission is needed to obtain a Writ of Restitution
• The HCEO can help manage the Writ application process
• There must be a sufficient link between the initial occupiers and those who have broken back in
• Include a penal notice within the first Writ of Restitution application to speed up the process.

At Wilson & Roe, we like to keep one step ahead of those who defy court orders. We do our best in helping our customers move in the right direction to achieve what the court has ordered.