Forms over substance? Applying for an Interim Possession Order
Joseph Meethan
7th February 2024
Property owners faced with recent trespassers have the option of seeking an interim possession order (‘IPO’) using the procedure in CPR55.20-28. The IPO is a quick way of obtaining possession: CPR55.22(6) provides that the first hearing should be as soon as practicable, but not less than 3 days after issue. IPOs also have a distinct advantage over final possession orders in that if those in occupation stay put or return within a year they commit a criminal offence.
As a faster way of a) obtaining an order and b) obtaining actual vacant possession these orders have significant advantages to dispossessed property owners, even if they do require a further hearing before the property can be disposed of in any way (such as through letting).
The requirements for an IPO
In one of my recent cases the defendants argued that my client had not met the requirements for the IPO. They said that the evidence was not signed by a director of the claimant company. That is a requirement imposed by CPR55.22(3):
(3) When he files his claim form, the claimant must also file –
(a) an application notice in the form set out in Practice Direction 55A; and
(b) written evidence.
(4) The written evidence must be given –
(a) by the claimant personally; or
(b) where the claimant is a body corporate, by a duly authorised officer.
(Rule 22.1(6)(b) provides that the statement of truth must be signed by the maker of the witness statement)
My client’s director had signed a standard sort of witness statement, so that was not an issue. But the judge was interested in the Form N130. This is the application for an IPO mandated by CPR55.22(3).
The judge asked whether this form was a witness statement. It is not difficult to see why it looks this way. N130 is expressed in the first person at every stage apart from box 7 which describes the defendants and the statement of truth. It looks as though it should be a particular kind of witness statement, but is it? If not, then what is it? Either way, does the form itself cause problems and how can this be avoided?
Is it a witness statement?
Because IPOs are used against recent trespassers and have return dates, there is no significant caselaw to guide the lower courts.
The trend within CPR55 points towards the N130 being separate from the witness evidence. It is the form required by CPR55.22(3)(a), which is distinguished from written evidence. In paragraph 9.1 of Practice Direction 55A it is described as the application notice, further supporting this view.
Set against this is the flexibility of what written evidence means: under CPR32.6 it can be broader than just a witness statement and can be anything supported by a statement of truth. That applies in hearings which are not trials, and an IPO application is only going to be a short hearing immediately after issue.
Even so, I find the view that it is an application notice rather than a witness statement more persuasive. The fact that the form on its own terms also includes asking for a final possession order suggests that it should really be viewed as a statement of case.
The issue at Court
N130 has the standard statement of truth as on Court forms, with options for the claimant, their litigation friend, or their legal representative to sign it. The judge said that it looked like a witness statement and wanted to know how this could be signed by someone other than the person giving the statement.
On its face, a form in the first person will look like a witness statement. The rules require the form to be used, so its expression in the first person is there to stay. A witness statement can only be signed by the maker, so that leaves a tricky situation where a judge thinks that this first-person document is one. If the application is not properly made in the judge’s view – the view that really matters in practice – there will be no IPO.
The form of Form N130
Why does this matter? An IPO hearing is going to be a short hearing. Any point raised which could give the judge pause for thought needs to be avoided.
Although it is clearly arguable that a mandatory form completed in its own terms should be sufficient for the court, where the court itself is confusing it does not help. Where a company is the claimant, as in my case, the form has to be completed in the first person by a director asserting that they themselves have an immediate right to possession. This is where the form takes us even though it would be wrong at law due to the company having a separate legal personality.
It is also difficult to see how a litigation friend or legal representative could ever sign such a form if the view is taken that it is a witness statement. However, the goal in these applications is to obtain the IPO, not to make a point about the scope of the CPR. If the form itself makes that process confusing there is a simple solution: wherever possible have the client sign it personally. Where the client is a company, spell out in the body of the form that the person in whose name it is written is a director authorised to make the application.