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The High Court refused a mortgage lender's application for an interlocutory injunction to restrain alleged trespass by borrowers who had re-entered a property following execution of an order for possession. While the lender had been granted such an order and leave to execute it, questions were raised at hearing as to whether the individual who physically executed the possession order was lawfully authorised under relevant legislation. Notably, the agent was described as a 'special bailiff' rather than a court messenger, casting doubt on the execution's validity. As a result, the court held there was a serious question to be tried about the lawfulness of the process, and rejected the injunction despite the plaintiff's underlying entitlement. The judge confirmed that the original order for possession was not spent and that the mortgagee may reapply to enforce it through a proper process if required.
mortgage possession – injunction application – enforcement of court orders – trespass – plaintiff lender – defendant borrowers – execution process – court messenger – special bailiff – Enforcement of Court Orders Act 1926 – Private Security Services (Amendment) Act 2021 – Rules of the Circuit Court – Order for possession – assignment of benefits in litigation – leave to execute – balance of justice – omnibus praesumuntur rite esse acta (all things are presumed to have been done properly)
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