Guidance on Section 41 for tenant eviction
Section 42 of the County Courts Act 1984 makes provision for a judge to give permission for the transfer up of judgments and orders from the County Court to the High Court for enforcement.
This is used by many landlords to instruct High Court Enforcement Officers (HCEOs) to evict tenants under a writ of possession. Guidance on this was issued in early 2015.
Usage of S41
However, during 2015 a number of HCEOs instead started to apply for permission to transfer up to the Practice Master in the Queen’s Bench Division (QBD) under Section 41 of the County Courts Act 1984, which is for the transfer of proceedings to the High Court by order of the High Court.
Whilst Practice Masters have been making S41 orders, they have not had access to the County Court file and log for that case, which has meant that in some cases, the Master’s order has conflicted with the County Court judge’s order. As you can imagine, this has caused considerable problems.
Decision – S41 may NOT be used
As a result, Senior Master Fontaine, after consultation with the Ministry of Justice, HMCTS, the President of the Queen’s Bench Division and the Deputy Head of Civil Justice, has issued guidance that Queen’s Bench Masters will NOT make orders for transfer for enforcement under S41 (unless on notice) and that applications where court leave is required are to be made under S42.
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