About this case:

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Background

In June 2015, Mark Deery (the plaintiff) issued proceedings against James Deery and Laura Graham (the defendants), who were occupying 23 Anna’s Grove, Newtownabbey, Co Antrim.

The plaintiff purchased the Premises at 23 Anna’s Grove on the understanding that the defendants would pay the deposit, the monthly mortgage instalments, and all other associated expenses; and would then reside there with their children.

The premises was registered to the plaintiff since August 2009, and in 2013 he received correspondence from HMRC complaining about a failure to pay stamp duty and threatening legal action.

In 2014 the plaintiff learned that money was due to the Land and Property Services in respect of rates for the property, and also that the mortgage was £1,200 in arrears – by July 2014 over £6,500 was due in connection with the mortgage.

In August 2014, the defendants agreed to market the property for sale at the value placed on it by UPS – £190,000 – and in September 2014 the plaintiff paid £2,400 to Santander in respect of the mortgage arrears.

Following this, offers were made but the defendants refused to leave.

More recently, the Premises were valued at £200,000 and the amount due under the mortgage was £161,465.47 when proceedings were initially issued.

Tomlin Order

In September 2015 the Court approved a Tomlin Order, which provided that the defendants would:

It was agreed that the plaintiff would sell the premises to the defendants on or before 23 December 2015, but that in default of such sale, the plaintiff would be entitled to market the property for offers in excess of £180,000.

In October 2015, further proceedings were issued on the basis that the defendants defaulted on the agreed terms set forth to the Tomlin Order.

Penal Notice

On 17 November 2015 terms were agreed between the parties, providing that an order for possession of the premises should not be enforced before 31 January 2016, on the condition that the defendants complied with their aforementioned undertakings.

Under Order 45 Rule 4 of the RSC, the Court can enforce by committal under Order 52 a failure by a defendant to do an act within a specified time; such an act would include the giving up of possession of premises, however in accordance with Form No:67 of Appendix A of the Rules of the Supreme Court (NI) 1980, it is a requirement of the rules and a pre-condition to obtaining committal that there must be a Penal Notice which must be served on any defendant against whom relief is sought

In his judgement, Justice Horner opined the increasing problem of plaintiffs omitting to attach a Penal Notice to the original order and then coming back to the Court and seeking leave to include a Penal Notice and re-serve that order at a later date.

Justice Horner was of the view that a Penal Notice does not form part of the order, but is an administrative act that is a pre‑condition for enforcement of an order under Order 25.

The agreement reached between the parties, embodied in the order, impliedly permits the party seeking to enforce the order to do so by whatever means are lawful.

Accordingly, the omission of the Penal Notice in the draft order agreed between the parties would not prevent the plaintiff from now serving the order with a Penal Notice attached.

Justice Horner warned that the “conclusion would be very different if the plaintiff had, for example, represented that he would not seek to enforce the agreed order by committal, if the defendant agreed to one being made. If a defendant relied on such a statement to his detriment, then a plaintiff would almost certainly be estopped from resiling from his representation”.

This was not the position in the present case – the defendants consented to an order being made which provided that they would give up possession forthwith in certain circumstances, and there was no discussion about how that order could be enforced.

The failure of the plaintiff to include a Penal Notice in the agreed order was not fatal to the claim of the plaintiff now to seek to re-serve the order with an appropriate Penal Notice.

Furthermore, even if it was found that the Penal Notice formed part of the order, then the draft order could be amended under the slip rule, or Order 113, or under the Court’s inherent jurisdiction to ensure that it embodies the true nature of the agreement as reached between the plaintiff and defendants.

Conclusion

The plaintiff was free to re‑serve the order with the Penal Notice attached, and was able in accordance with the agreement made and embodied in the order to enforce that order using whatever lawful means he wished.