Enforcing Injunction Orders: The Role of Civil Procedure Rule 70.2A in Tackling Disobedience

Author: Amanprit Kaur

It is often the case that a successful party in a boundary dispute is granted injunctive relief against the losing party. This article offers a solution to cases where a losing party does not comply with the injunction(s) set out in a court order and where enforcing the penal notice may not always be the appropriate way forward. The solution lies in the CPR at r70.2A which is a useful tool for property practitioners when applying to enforce injunction orders, mandatory court orders and orders for specific performance. Indeed, we will see that this mechanism can also be applicable in other commercial settings i.e. in proceedings between landlords and tenants.

Case Study

For illustrative purposes, let’s take an example of a common boundary dispute. The basic facts of the case are:

• Mr and Mrs Smith bring a claim for trespass against their neighbours Mr and Mrs Carter.
• Mr and Mrs Smith seek an injunction requiring Mr and Mrs Carter to remove their fence and tree stumps impeding onto their land.

• Following the trial, the Judge decides in Mr and Mrs Smith’s favour and orders an injunction which states:

“The Defendants [Mr and Mrs Carter] shall remove the fence and tree stumps highlighted in red marker on the single joint expert’s boundary plan within 28 days”

• The 28-day period expires and Mr and Mrs Carter did not remove their fence and tree stumps.

• Mr and Mrs Smith find out that Mr and Mrs Carter have sold their property subject to contract and have recently seen removal vans at the Carter Residence.

• Mr and Mrs Carter have sought to evade service of correspondence from Mr and Mrs Smith’s law firm.

Analysis

Mr and Mrs Smith find themselves in a tricky situation. The injunction is made against Mr and Mrs Carter and therefore are the only persons obligated by the court to remove the fence and tree stumps. If the Carters complete the sale of their property before carrying out the works, the injunction will not bind the new owners. Nor will Mr and Mrs Carter be able to enter onto what will be their former land to complete the work without committing trespass. The option to bring committal proceedings against Mr and Mrs Carter is unlikely to garner compliance in the time frame required given the completion of the sale of their property nearing.

So what option do Mr and Mrs Smith have?

CPR 70.2A

Mr and Mrs Smith can make an application pursuant to CPR 70.2A asking the court to order an act to be done at the expense of a “disobedient party”.?

CPR 70.2A, Paragraph 1 defines a “disobedient party”:

1.In this rule ‘disobedient party’ means a party who has not complied with a mandatory order, an injunction or a judgment or order for the specific performance of a contract.

Paragraph 2 explains who can perform the act on behalf of the disobedient party. Mr and Mrs Smith may ask the court to remove Mr and Mrs Carters’ tree stumps and fence themselves, or indeed a court can appoint some other person.

2. Subject to paragraph (4), 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, being—

(a) the party by whom the order or judgment was obtained; or

(b) some other person appointed by the court.

The rule goes further and allows the party incurring the costs of removing the trees stumps and fence to recuperate those costs from Mr and Mrs Carter. Paragraph 3 states:

3. Where paragraph (2) applies—

(a) the costs to another person of doing the act will be borne by the disobedient party

(b) upon the act being done the expenses incurred may be ascertained in such manner as the court directs; and

(c) execution may issue against the disobedient party for the amount so ascertained and for costs.

The cherry on top is that the relief provided for in CPR 70.2A is without prejudice to the court’s jurisdiction to execute an instrument by a person nominated by the court and the court’s power to punish the disobedient party for contempt. Paragraph 4 states:

4. Paragraph (2) is without prejudice to—

(a) the court’s powers under section 39 of the Senior Courts Act 19811;?and

(b) the court’s powers to punish the disobedient party for contempt.

Practical Tip: Whilst preparing the application, it would be wise to prepare a Draft Order with careful consideration given to the following:

• Which part of the respondent’s property requires forceful entry i.e. is it through the front door, or is access through the garden sufficient?

• If a professional is required to complete the work, does that professional have adequate insurance?

• Whether the item(s) removed from the land shall be placed onto the respondent’s property.

• The court may require the applicant to provide estimated costs for the works and an assessment of the reasonableness of those costs may have to take place before/after the works have been completed. As such, it might be useful to prepare a Schott Schedule.

Wider application of CPR 70.2A

Sovereign Housing Association Limited v Ms Jane Hall

The basic facts of this case relate to a claimant landlord who required access to its property and had obtained an injunction against the defendant tenant requiring her to provide access. The tenant failed to comply and the landlord made an application to the court for an order under CPR 25.1 (c), the inspection of relevant property and (d) an order authorising a person to enter any land or building in the possession of a party to the proceedings for the purposes of carrying out an order under sub-paragraph (c). The Judge in the first instance dismissed the application suggesting that committal proceedings for contempt of court were more appropriate and declined to accept that the court had jurisdiction to make an order under CPR 25.1 to allow forced entry.

On appeal, His Honour Judge Berkley overturned this decision. The key takeaway points from this judgment are:

• The court relied on the provisions of CPR 70.2A rather than CPR 25.1.

• The fact that access is gained by unconventional means was not a bar to exercising the court’s discretion. In this case, forceful entry through the front door could have meant damaging the door and door frame. This was a factor the court weighed in considering whether to exercise the court’s discretion.

• The powers conferred to the court under CPR 70.2A (2) are without prejudice to the court’s powers under s.39 of the Senior Courts Act 1981 and the court’s powers to punish the disobedient party for contempt.

Conclusion

Applications made pursuant to CPR 70.2A are likely to require certain factors i.e. urgency, especially where the successful party is seeking forced access to their neighbour’s land, to be persuaded that such a draconian remedy ought to be granted.

Notwithstanding that, it is certainly a pragmatic option available to not only those who are seeking to enforce a mandatory order or injunction following a trial in a boundary dispute but also in commercial disputes to enforce an order for specific performance.

The author of this article, Amanprit Kaur , specialises in property disputes including boundary disputes. Amanprit was recently successful in making an application under CPR 70.2A for the enforcement of various injunction orders made against the disobedient party in a boundary dispute context.

Eviction?Fiction - The Final?Chapter!?Court?of Appeal?Rejects?ï¿¡1.1M Unlawful?Eviction Appeal ?

On 27 February 2025, the Court of Appeal refused permission to appeal in the case of Scalora v Clarion Housing Association Limited [2024] EWHC 1414, a nine day trial which generated wide media interest:

• The Guardian:?Tenant sues landlord claiming UK flat was sublet as he was stranded abroad.
• The Independent:?Housing association ‘sublet flat while tenant was stranded abroad’.
• The Mirror:?Man comes home after being stuck during pandemic to find stranger living in his flat.
• Local Government Lawyer:?Housing association defeats High Court claim for wrongful eviction.

The Appellant sought to appeal the dismissal of his ￡1.1m claim for damages for unlawful eviction on multiple grounds, each designed to challenge the judge’s conclusion that he had expressly or impliedly terminated his tenancy. The judgment below can be found [here]. The grounds of appeal included a novel argument that the judge had erroneously elevated lay witness evidence to the status of expert evidence, and asserted that the criteria in?Griffiths v TUI (UK) Ltd?[2023] UKSC 48 had not been met where a joint cyber expert had not been cross-examined on his report. The Appellant also argued that the judge had failed to correctly apply?Artworld Financial Corp v Safaryan?[2009] EWCA Civ 303 when deciding, in the alternative, that the tenancy had been surrendered by operation of law.

The Court of Appeal determined that none of the grounds of appeal enjoyed a real prospect of success. In essence, the Appellant was seeking to go behind the judge’s findings of fact. The authorities stress the high hurdle which an appellant must surmount to interfere with findings of fact made by a trial judge who had the benefit of considering the whole tapestry of evidence. An appellate court should not interfere with the trial judge’s conclusions on primary facts unless satisfied that they were plainly wrong in that: (a) the challenged findings were unsupported by the evidence; or (b) the judge reached a decision that no reasonable judge could have reached. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them (see?Staechelin v ACLBDD Holdings Ltd?[2019] EWCA Civ 817 per Lewisham LJ at [29], reiterating what he said in?Fage UK Ltd v Chobani UK Ltd?[2014] EWCA Civ 5 at [114]).

None of the matters raised satisfied the high threshold for challenging such findings. The lay evidence had not been treated as expert evidence and there was no need for the expert to be cross-examined when he was unable to opine on the system in question. Ultimately, the judge was entitled to reach the findings and come to the conclusions he did based on the totality of the evidence before him. Crucially, the judge was entitled to conclude that the Appellant has been “thoroughly dishonest” when he denied sending the emails that showed that he had terminated his tenancy. The Appellant therefore knew all along that he had sent the emails in dispute and was wrong to accuse the Respondent of forgery.?

It followed that his tenancy had ended and there had been no unlawful eviction. As well as dismissing the claim, the court below marked its disapproval for the Appellant’s conduct with an indemnity costs order under CPR r. 44.3(b). The conduct of the Appellant was found to take the case far outside the norm. As Waller LJ emphasised in?Esure Services Ltd v Quarcoo?[2009] EWCA Civ 595 at [25]:?

“To bring a dishonest claim and to support a claim by dishonesty cannot be said to be the ordinary and?reasonable conduct of proceedings.”?

Michelle Caney acted for the successful Respondent in the High Court and the Court of Appeal.

Michelle was instructed in the Court of Appeal by Alexandra Loxton and Lindsay Felstead of Clarke Willmott.

Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational purposes. Readers are respectfully reminded that it is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose. Please also note that this article represents the opinion of the author and does not necessarily reflect the view of any other member of chambers.