The recent County Court case of Southern Housing v James Emmanuel considered the issue of forced entry terms in access injunctions. 

Background 

The court granted an Injunction Order against a tenant after he failed to provide his landlord access for a gas safety inspection. The tenant also failed to allow the landlord access to the property after the Injunction Order, so the landlord applied for a clause permitting forced access. 

The application was initially dismissed by the Judge on the basis that the court did not have the relevant powers to grant a forced access clause. The landlord applied to set this order aside, citing a provision in the Civil Procedure Rules (CPR 70.2A) as giving the court jurisdiction to make an order for forced access. Those provisions state that ‘if a mandatory order, an injunction or a judgment or order for the specific performance of a contract is not complied with, the court may direct that the act required to be done may, so far as practicable, be done by another person.’

The landlord argued that, following the tenant's failure to provide access in compliance with the Injunction Order, the court had the power to order the landlord to force compliance with the order, i.e. force access. 

However, this application to set aside was also dismissed. 

Powers to force entry? 

So, why was the application dismissed? 

The court concluded that there is no common law right of forced access without the express authority of Parliament. The Gas Safety Regulations do not grant a power of forced access either. There is no other legislation that allows for forced entry in these circumstances. 

The court concluded that allowing a landlord to force entry went beyond CPR 70.2A. The original injunction, gained by Southern Housing, requires the defendant to allow access, not for the landlord to enter without consent. The claimant's request to change the order wasn't about appointing someone else to carry out the same act; it was asking for a completely different action: forced entry.

The court clarified that CPR70.2A doesn't give power to change an existing order. It only allows the court to appoint someone else to do what was originally ordered.

While CPR 25.1 allows the court to authorise entry to land or buildings to carry out an order, it doesn't allow entry without consent.

The court emphasised that the CPRs can't be stretched to give powers that aren't clearly stated in legislation.

Next steps 

It's important to note that this case is not legally binding and contradicts Sovereign Housing v Hall – another non-binding county court case.

Southern Housing was granted permission for an appeal to the Court of Appeal. If pursued by Southern Housing, this may lead to a binding decision to put the issue of forced access to rest. 

For the time being, it remains a grey area of law, with no clear authority for a Judge to grant terms permitting forced entry. Such remedies remain at the discretion of a County Court Judge, but we may see more judges decline to grant such orders following publication of this decision. For more information on CPRs or forced access, please contact us.