Background
Our comprehensive analysis of over 400 High Court transfer cases provides unique insights into District Judge decision-making patterns. Each time an instruction is received to enforce a possession order, we have plotted the particular details of the order itself, the judge making the order, and the time taken to process this instruction. This has created a unique set of data on the topic of how long the process of granting judicial discretion adds to the process of enforcement when a claimant has won the right to repossess their property.
Claire Sandbrook as Shergroup’s CEO was the first authorised High Court Enforcement Officer to develop the process of transferring possession orders to the High Court following an unwelcome change in the Civil Procedure Rules and the old RSC Order 113 back in October 2001. On a visit to Shergroup’s offices in 2003, Master Leslie of the High Court himself confided in Claire that the change in the Rules had been an inadvertent outcome from the implementation of the CPR in 1999.
Despite this successive judges and civil servants have failed to amend the 1984 statutory rule which requires the District Judge to exercise his or her discretion in allowing enforcement of a county court possession order to be transferred to the High Court.
Reasoning on why an order should not be made ranges from a District Judge deciding that his or her county court and therefore its bailiff department is adequate for the claimant’s needs to enforce the possession order despite any delay that might be apparent from discussions with bailiff managers, through to a simple decision not to allow the enforcement due to the housing predicament of the defendant. Neither of these reasons seem to be objective and ones which can be anticipated when the claimant has to go to the additional cost of making an application to seek the necessary permission.
The data which is the subject of this blog goes someway in a small but targeted study to understand these patterns. We say these are crucial for property owners and legal professionals seeking efficient transfers to the High Court for enforcement to understand and anticipate in their decision to seek permission.
Key Judicial Statistics
Our data reveals significant patterns across 220 judges |
Most Active District Judges
1. DJ Bell | Sitting in
- 16 cases handled
- 3 courts covered
- Most recent | July 2024
- Consistent approach
2. DJ Leong | Sitting in
- 8 cases processed
- 5 courts covered
- Most recent | October 2024
- Multi-jurisdiction expertise
3. DJ Althaus | Sitting in
- 8 cases managed
- 2 courts covered
- Most recent | April 2024
- Focused jurisdiction
Decision-Making Patterns
Our research shows a distribution of judicial activity as follows |
- 63% of District Judges in our study manage single cases pointing to a lack of experience in understanding the plight of the claimant in waiting to get back their property where a tenant has failed to pay rent
- 31% of judges in our study manage 2-5 cases indicated increased awareness of the claimant’s position vis-a-viz the defendant
- 5% oversee 6-10 cases – showing a level of expertise and consistent decision making when faced with a claimant’s application under Section 42(2)
- Only 1% handle over 10 cases – which shows a deeper level of understanding of the impact of the claimant’s situation
Multi-Court Experience
Judges working across multiple courts show interesting patterns |
Top Multi-Court Judges
1. DJ Leong & DJ Paul
- 5 courts each
- Consistent approach
- High efficiency rates
2. DJ Smith & DJ Clarke
- 4 courts each
- Regional expertise
- Standardized processes
3. Multiple Judges
- 3 courts each
- Balanced caseloads
- Consistent decision-making
Success Factors in Transfer Applications
Our study identifies key elements that influence judicial decisions |
1. Documentation Quality
- Complete evidence presentation
- Clear jurisdiction grounds
- Well-structured applications
- Proper notice compliance
2. Case Presentation
- Clear urgency justification
- Proper procedural compliance
- Complete supporting evidence
- Professional preparation
3. Timing Considerations
- Appropriate notice periods
- Reasonable transfer requests
- Timely applications
- Efficient processing
Court-Specific Patterns
Different courts show distinct decision-making characteristics |
Business and Property Courts
- Immediate transfers are common as these are High Court applications in the main so Section 42(2) does not apply to these types of Orders
- Specialized understanding which is welcome and needed in the judicial process
- Efficient processing – which is extremely helpful to claimants and enforcement professionals alike
- Clear procedures – which ensures that access to justice is delivered to claimants whilst balancing this against the position of defendants
Regional County Courts
- Variable timelines
- Local considerations
- Resource-dependent
- Jurisdiction-specific approaches
Application Success Rates
Our data shows clear patterns in successful applications |
High Success Factors include
1. Complete Documentation
- All required forms
- Supporting evidence
- Clear justification
- Proper notice
2. Professional Preparation
- Expert handling
- Court-specific approach
- Proper formatting
- Complete submissions
3. Timing Management
- Appropriate intervals
- Prompt submissions
- Efficient follow-up
- Strategic timing
Strategic Implications
Understanding these patterns enables better preparation for applications so that the paperwork is prepared in a consistent way with the right elements to put before the Court to enable the District Judge to exercise his or her discretion on the correct information. The successful elements of such an application are set out below |
Best Practices
1. Court Selection
- Consider judicial experience – use Shergroup study of decision making to see if you have a judge who has a history of exercising his or her discretion in favour of a claimant based on objective criteria and the unique facts of your case
- Assess court efficiency – some Courts are more efficient than others – and we have our data pinpoint the spectrum of this efficiency
2. Application Preparation
- Follow court preferences – improve the odds of a successful application or at least understand where you will have to work harder to persuade a District Judge to exercise his or her discretion in favour of a claimant based on their previous decisions
- Include all the necessary elements to explain the difference in timescales and the financial impact between the county court and High Court enforcement system and back this up with evidence of conversations with staff in both courts
- Clear presentation is needed to make out the financial and mental health impact on a claimant if enforcement does not proceed with alacrity
- Professional handling needs to show to the Court in terms of putting forward proper arguments in support of an earlier enforcement date
3. Process Management
- Active monitoring of your case, or your client’s case is essential, and this includes not just passively waiting for the court to make an order
- Prompt responses are important when the court asks you for information
- Efficient handling – set up simple spreadsheets to demonstrate the past, current and future financial impact. Provide evidence of any physical or mental health issues caused to claimants or their families in waiting for the court system to provide an early enforcement date
- Include insight on the defendant’s situation as you see it – and use evidence to back up any assertion you make as to why the impact on the defendant is not as dire as the Court may be drawn into thinking
The Shergroup Advantage
Our approach maximizes more successful outcomes through |
1. Judicial Understanding
- Pattern recognition – we know the Courts and the Judges that will make orders allowing the enforcement of a county court possession order to be transferred to the High Court
- Court-specific knowledge – we have built this up over many years and in recent years have built the data that you are reading about today to move from an anecdotal approach to being objective in our findings
- Process expertise is an aspect of using Shergroup which we see as being quite unique in the High Court enforcement market. Courts themselves refer claimants and their advisors to us for support which we think is an indication that we are seen as “honest brokers” in the delivery of enforcement services
- Strategic Approach – We have never accepted that the hurdle of judicial discretion under Section 42(2) should stop claimants from seeking an efficient enforcement system in the civil court system and our system of driving results shows decades of experience in delivering access to justice for claimants from all backgrounds
2. Professional Management
- Complete preparation of the paperwork that is needed in any application comes from Shergroup Legal and Shergroup Enforcement
- Active monitoring is provided through our administrative processing and weekly case review system meaning cases entrusted to us do not get left behind
- Strategic timing means we encourage claimants and their advisors to make the application for permission to enforce in the High Court, in the main possession action itself rather than waiting until after the possession order is granted
- Efficient handling is based on the combined success of our team who have over 100 years of operational experience in handling enforcement paperwork
3. Success Optimization
- Best practice applications have been crafted over many years of understanding what District Judges, Masters and court staff want to see in the paperwork we put before the Court
- Our court specific approach recognizes such regional differences – certainly between London and outlying areas and we should say that we have always received a first-class processing service from the Central Office of the High Court in London
- Professional presentation is just second nature to us – and again this has put us in good stead with Judges and court staff alike
- Efficient processing is another factor in our success which again comes from many years of honing our system in what we can only say is a complex system of administration in the civil courts. When you operate across all the courts in England and Wales you find what works and what doesn’t and again, we have honed that experience into our overall service for our clients.
Practical Applications
How to use this information effectively |
For Property Owners
1. Strategic Planning
- Choose experienced courts where possible and include the application for permission to transfer in the claim form itself wherever possible – this may not be possible for PCOL users as there is no space on the form meaning a separate application needs to be made at the hearing for possession or after the hearing as a separate application
- Prepare thoroughly in making any submissions to a District Judge on Section 42(2)
- Engage legal experts such as Shergroup to guide you on the grounds for making a successful application under Section 42(2) – recognizing that there is no absolute right to a positive outcome as the decision is discretionary
- Follow procedures for making an application on Form N244 and with a supporting Witness Statement setting out the reasons for the application and the impact on the claimant if the enforcement of the possession order is delayed.
2. Process Optimization
- Complete documentation as discussed above
- Professional presentation is essential for the District Judge to be satisfied that in exercising his or her discretion it is a proper use of Section 42(2). Information gleaned from the county court bailiff department on a likely enforcement date compared to the date offered by a High Court Enforcement Officer often shows a stark difference in the timetable for enforcement and therefore the financial impact of using the High Court Enforcement Officer is made out
- Efficient timing – for the reasons set out above
- Active management – in staying connected with Court staff in both the county court and High Court/District Registry
For Legal Professionals
1. Court Selection
- Consider the decision-making experience of Judges in various county courts and refer to Shergroup if you need any clarification on the positive exercise of a discretion in favour of a claimant
- Assess efficiency – High Court Enforcement Officers, such as Claire Sandbrook, can always offer a highly efficient process to enforce a county court possession order once the hurdle of discretion under Section 42(2) is overcome, and the Writ of Possession can be managed through the Central Office of the Royals Courts of Justice, or through outlying High Court District Registries
- Evaluate resources – the claimant has to have the funds to make the application under Section 42(2) and we encourage legal professionals to attend any possession hearing ready to make oral submissions requesting permission and to have a completed Form N293A ready to be sealed by court staff on the same day as the hearing. This saves any time waiting for a Certificate to be returned if required.
- Match requirements – Take on board the significant improvement in timescale that transfer to the High Court for enforcement can give a claimant in terms of closing the gap on lost rent and dilapidations.
2. Application Management
- Follow patterns as set out in this blog and ask Shergroup’s team of Business Solutions Advisors for more support if needed
- Complete preparation or outsource this to Shergroup Legal and Shergroup Enforcement if you are acting without a legal advisor
- Professional presentation – If using a legal advisor or taking advantage of Shergroup’s combined legal and enforcement expertise it is important to make proper and truthful presentations to the Court about the impact of not being able to enforce in a shorter timescale and the cost to the claimant
- Active monitoring – Don’t allow yourself or your advisors to passively wait for the return of paperwork. Plan a weekly phone call to the court staff to check on progress – often you will be told the paperwork is waiting with the judge. If the situation becomes unbearable then we recommend sending in a complaint to the Court Manager and escalating this if you do not receive the right response. Without this approach the court staff don’t appreciate the urgency and frankly the financial jeopardy that a claimant can find themselves in if they cannot get back possession of their property and either sell the same or re-let it to a tenant who is going to pay the rent.
Looking Forward
We believe that the data we have collated over the last 4 years gives us an understanding of judicial patterns of decision making which to date have not been studied. As a result, this understanding moves from an anecdotal to an objective understanding of judicial patterns. This in turn enables court users and advisors to |
– Better prepare for applications which are needed to transfer possession cases from the county court to the High Court
– Higher success rates for claimants in persuading District Judges to exercise their discretion in favour of a claimant
– Efficient processing of applications and supporting evidence
– Optimal outcomes to overcome the uncertainty created by a statutory discretion provided for in Section 42(2)
Take Action
Benefit from our judicial pattern analysis discussed in this blog and contact TEAM Shergroup today for expert transfer application management with fixed fees designed to help claimants make cost effective applications where needed.
By Phone | 020 3588 4240
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