Following a successful claim for possession and execution of a possession warrant, an individual has very limited routes by which they can attempt to secure re-entry to the property. However, the courts will set aside a possession warrant and permit re-entry where the warrant can be shown to have been obtained by fraud, or where there has been an abuse of process or oppression in its execution.
A key question, therefore, is how far an individual will have to go to show that the possession proceedings in question amount to an abuse of process?
Given such cases tend to be fact specific, it is difficult to give any precise definition of an “abuse of process”. However, as a general rule, an abuse of process occurs when a court rule which is more than a mere formality is not complied with. For example, a warrant that is issued before the date on which possession is due is a nullity, and enforcement of such a warrant therefore amounts to abuse (Tuohy v Bell  EWCA Civ 423). Similarly, an abuse of process will arise where a warrant is executed more than 12 months after it was obtained and the landlord has not applied for permission to renew the warrant (eg see Hackney LBC v White (1996) 28 HLR 219, CA).
In more recent times and given the current economic climate, the courts have been faced with an increasing number of cases involving more flagrant acts and allegations of abuse of process against lenders or landlords. The case of Blemain Finance Limited v Ridley [June 2012 Darlington County Court] is such an example. It concerned the issue of whether, and if so when, an arrears payment had been received.
Ms Ridley owned a home, which was charged with a mortgage. In 2006, she took out another secured loan with Blemain Finance for £20,000. Ms Ridley was unable to meet the payments due under this loan, and in 2006 Blemain Finance obtained a possession order and warrant. However, Ms Ridley subsequently paid the arrears due and the warrant was not enforced.
Ms Ridley later fell into further financial difficulty, and incurred arrears of around £1,500. Blemain applied for a warrant of possession and a date for execution was obtained. Four days prior to execution, Ms Ridley received notice of the eviction date from Blemain. The letter stated that the arrears in question could be cleared via the making of a payment on the lender’s website. The letter did not, however, make mention of Ms Ridley’s right to apply to the court for a stay of eviction. Ms Ridley subsequently spoke to an agent of Blemain, and was further assured that should she pay the arrears via the lender’s website, she would be “up to date and fine”. Accordingly two days prior to the date for execution of the warrant, Ms Ridley paid the outstanding arrears via the lender’s website on a debit card.
Despite this payment, the eviction went ahead. Ms Ridley called Blemain, but was informed that there was nothing they could do. On the same day, Ms Ridley applied for reentry and a stay of the warrant. At the hearings, it transpired Blemain had returned Ms Ridley's payment on the day following her eviction. The District Judge therefore held that, as Blemain had clearly been in receipt of the monies prior to the eviction date, the execution of the warrant had amounted to an abuse of process. Ms Ridley was permitted to re-enter the property, the warrant was suspended and Blemain ordered to pay the costs of Ms Ridley's application and of both hearings.
Undoubtedly, the burden of proving an abuse of process is a heavy one. However, this case demonstrates that the courts will readily, and quite rightly, intervene in cases involving dubious practices which amount to an abuse of the court’s process.