A scandal unfolds: High Court enforcement again

Since our previous post on this topic, it has become apparent that there are significant and widespread issues with evictions of tenants by High Court writ, specifically by some High Court Enforcement Officer firms.

In our last post, we dealt with the issue of an application for a High Court writ being made in tenant possession cases by way of form N293A. To recap, this is the form which expressly states “This judgment or order has been sent to the High Court for enforcement by (Writ of Possession against trespassers) only”.

The significance of this form is that a writ of possession against trespassers does not require the permission of a High Court Judge, or indeed notice to the occupiers of proceedings (in the High Court) under CPR 83.13(8)(a). The High Court office issues such writs as an administrative act, without having to go before a judge. In effect, they are rubber stamped.

But this is valid as against trespassers. Not, categorically not, against tenants after a possession order. Form N293A must absolutely not be used for a writ against tenants.

However, I have seen clear evidence that at least three of the larger HCEO firms dealing with tenant evictions have used form N293A to apply for writs of possession against tenants (and/or told landlords to use that form/provided them with that form to sign) and done so routinely for years. This includes at least one (and probably more) of the HCEO firms that have taken part in television programmes, carrying out tenant evictions.

Here is an example from August 2014 from an HCEO website (full screenshots of this and other pages have been taken in case they vanish).

Screen Shot 2016-01-06 at 20.19.56

There are quite a few HCEO firms that state that they can obtain a writ ‘within 24 hours’ or ‘in one day’. Given the unlikelihood of obtaining permission for a writ from a High Court Judge within a day, let alone via a District Registry, one can only suspect the use of N293A in these cases too.

There is no legitimate reason for this to have happened. The position on the use of N293A has been clear for years. Here, for example is District Judge Backhouse writing in the Gazette on the topic in January 2014.

As DJ Backhouse notes, wrongly certifying to the High Court that the writ is against trespassers – by use of the N293A – may well be a contempt of court. It is certainly an abuse of process.

A writ obtained by abuse of process could probably be set aside, even after execution (and very likely where the abuse of process enabled the writ to be obtained and eviction executed without notice to the defendant tenant).

In addition (or alternatively, if setting aside the warrant would cause a concurrent tenancy in the situation of a re-let property), there would be a potential unlawful eviction claim by the tenant, against the landlord.

Where I have seen evidence of their use of form N293A for tenant evictions, I have asked HCEO firms for their response. But I have not received any reply at all.

There we are. There is a high likelihood that at least some of those tenant evictions you saw High Court Enforcement Officers carry out on TV programmes were obtained through an abuse of process, and many, many more that weren’t on TV.

So what needs to happen now?

  1. HCEO firms need to come clean about whether or not they have used N293A to apply for writs for tenant eviction since 5 April 2014. And whether they continue to do so.
  2. HCEO firms need to stop use of N293A for tenant evictions immediately, if they have been doing so, and comply with CPR 83.13(8)(a) – taking note of Nicholas v Secretary of State for Defence, High Court, Chancery Division, August 24, 2015 (link to our note)
  3. HMCTS should ensure that High Court offices and District Registries in particular are alert to these issues with use of N293A and the offices should check whether the County Court possession order was against tenants on receiving an N293A.
  4. Landlords should be aware that if they use an HCEO that gets them to use form N293A they are potentially at risk of the writ being set aside and/or a claim for unlawful eviction, against them personally, putting them at risk of having to pay significant damages and costs, as well as potentially having to let the tenant back into the property.
  5. Landlords should be very sceptical of any claim to obtain a writ within ‘a day’ or ’24 hours’, as this is unlikely to involve permission being given by a High Court Judge, particularly if the HCEO says it will be using a regional court or District Registry.
  6. Tenants and their advisors need to be aware of their rights and of the potential to set aside a writ obtained by abuse of process and/or potential unlawful eviction.

This needs to be dealt with. It appears to be a large scale and widespread abuse.

(Update 14 Jan 2016 – I wrote to the High Court Enforcement Officers Association about this issue. They confirmed that “a number of our members are issuing and enforcing Writs of Possession in the manner you describe” (via N293A) and that the HCEOA had sought guidance on the issue from Senior Master Fontaine – High Court QBD. I have also written to Senior Master Fontaine setting out the issues and concerns.  Further updates as and when. I have not yet received any coherent counter argument and I suspect the ‘debunking’ article that was promised by the head of Sheriffs Office will not be forthcoming in the immediate future.)

carter

 

(Update 16 January 2016.

Well, I have had a response from HCEO David Carter of Sheriffs Office here. Here is what he said.

15/01/2016 at 15:23
Reply to the comment left by “Nearly Legal” at “07/01/2016 – 11:58“:

Afternoon Giles,

Firstly, apologies for my delayed reply. This has been due to being struck down by the dreaded post-Christmas man flu and being out of the office for the last two days.

Anyway, cutting to the main point you raised, our opinion is that using form N293A to obtain the writ of possession is not an abuse of process.

The practice of using form N293A (the only option currently available) was adopted by HCEOs in accordance with the provisions to transfer matters from the County Court to the High Court (for enforcement) under section 42 of the County Courts Act 1984. This practice has been endorsed, without demur, by the Courts for over a decade.

We would therefore argue that the transfer of an order for possession in relation to residential eviction of tenants is legal and common.

We are also advised that in order to have the situation fully clarified, the High Court Enforcement Officers Association have already sought guidance from the Senior Master of the High Court and we understand a response is due shortly.

Personally, I firmly believe that the current methods used by The Sheriffs Office and many other HCEOs are not an abuse of process or illegal and are correct and lawful at this time.

However, we eagerly await the Senior Master’s guidance and will of course be able comment further once that is received.

In terms of HCEOs being able to offer writs ‘within a one day’ or a guaranteed 7 day eviction we wholeheartedly agree with your concerns.

We have written articles ourselves on these new and inexperienced HCEO companies that appeared to be bypassing the requirement of leave under Section 42 of the County Court Act 1984 to transfer a County Court order to the High Court for enforcement.

This in itself left landlords and the actual HCEO (who I believe wasn’t actively working within the business) open to potential cases for damages from their former tenants as these evictions would have been enforced illegally.

Kind regards, David

So, as far as I can see, this amounts to:

i) There isn’t any form to apply for a writ except an N293A. The obvious problem here is that N293A is for a writ of possession or control. It would not do for a writ of delivery or restitution, so ‘there is only one form to apply for a writ’ is clearly nonsense. And no other form? A standard N244 would do for an application, I think, not least because what is being applied or is the court’ s permission for a warrant under CR 83.13.(2).

ii) Nobody has challenged this for 10 years. Well, as the only people who could are the evicted tenants – who aren’t exactly given a clue – this is not surprising. It is particularly not surprising when use of N293A means that the applications never go in front of a Judge, because issue of a writ as against ‘trespassers’ is an administrative act by the court office. But we have seen successful High Court challenges to writs issued by way of N293A have indeed taken place. So, any respectable HCEO should at the least be pausing and considering.

iii) Transfer up via section 42 is valid. Well yes. There is no dispute that a ‘transfer up’ via an application in the county court under section 42 is a valid process. There is no issue with the MoJ guidance on that process that I know of. But this is completely separate from a subsequent application to the High Court for a writ. The guidance and s.42 say nothing about use of form N293A, let alone permitting or requiring it.

More on the guidance when we get it.)

Posted in Assured Shorthold tenancy, Housing law - All, Unlawful eviction and harassment and tagged .

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

59 Comments

  1. I have in the past been regularly rung up by HCEOs promoting their ‘quick eviction’ service. When I questioned them about the process they used to get leave of the court to issue the writ they seemed unable to answer me properly.

    However, I can entirely understand why landlords (who don’t understand the niceties of court procedure) would want to use them. The time it takes to get a bailiffs appointment in some busy courts is far too long – up to two months or more. Which is unacceptable when it has already taken the landlord some six months to get his possession order.

    One wonders whether the authorities are particularly bothered by this though – while the tenant is effectively being housed free of charge by the landlord, it delays the moment when the Local Authority has to do anything about it.

  2. Whilst a local authority might be happy for the delay in obtaining a warrant there is a flipside. Having been based for the past few years in a homelessness unity, albeit doing different work we did see a growing trend in high court enforcement, whereby people were advised that they had another few weeks until the warrant only to have them promptly fetch up in reception with all their belongings the next day causing a mass scramble for temporary accommodation.

    I took one of these HCEO people to lunch once to ask them how they did it and it and the explanation was all a bit ‘tapping the side of the nose’

  3. Well, if we get the right case, they can tap their noses whilst writing a large cheque for costs and damages.

    I am interested in working out if it is a contempt of court as well. Unlimited fines and/or imprisonment beckon!

  4. Eviction occurs after a court has ordered it. Therefore it is pointless and counter-productive to make the process long and difficult with tons of extra red tape.

    The system should be reformed so that eviction is guaranteed to be carried out without further red tape within 7 days after the court order’s deadline.

  5. Pingback: HCEO's What has been your experience? | Property118.com

    • No, I haven’t. And I would be astonished if they contradicted the CPR. If you want to send me a copy, then I can comment.

      CPR 83.13 is perfectly clear. The High Court’s permission is required for a writ of enforcement of a possession order against tenants, because they do not fall into the exclusions under 83.13(3) or 83.13(6).

    • Would those be the Guidance notes which include at paragraph 2:

      The judgment counter clerk will check that…the certificate complies with CCR 0.22, r8 (1A) (Sched. 2 to the CPR), and in particular with the requirement that on its face it states that it is granted for the purpose of enforcing the judgment or order by execution against goods or for possession against trespassers in the High Court.

      because if so, I’m not sure what your point is.

    • That is of course from the Practice Directions issued by the Senior Master to be found at [1998] 4 All ER 63.

    • Actually, oddly, while the version of the “Guidance” endorsed on various HCEO’s versions of N293A includes final part of the wording above, the version from 1998 does not. So when was it amended?

    • That would make sense – but the references to the “Guidance” on HCEO branded N293A forms are all specifically to Senior Master Turner – who ceased to be Senior Master QBD in 2007.

  6. If you sign the N293A, which includes a certification that the details that you give are correct and intend to enforce an order against trespassers when you know that you don’t, then I can’t see how it’s not contempt. The notes on the form even have the word ‘only’ underlined regarding a writ of possession against trespassers.

  7. I often thought that the majority of evictions seen on that particular tv show are unlawful and clearly the tenant does not know their rights, which is quite irritating given that if you were present you would have questionned and examined the paperwork. Particular given the fact that the majority are given no proper time or notice and the said enforcement officers are willing or have used force – quite rightly there may be civil and criminal implications. Clearly the police also need training in this area to ensure that they don’t become an accessory.

  8. Whether misleading a court into issuing a warrant by the misuse of Form N293A is an ‘unlawful eviction’ remains to be seen. It seems to me that the better cause of action would be breach of the covenant of quiet enjoyment or derrogation from grant; not least as the covenants in an AST continue to bind the landlord until (lawful) eviction.

    • Yes, those would certainly be an option, though would not have the possibility of aggravated and exemplary damages.

      If the writ is set aside, but re-entry not possible, for example because of a re-let, I think unlawful eviction may be an option.

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  10. What utter tripe this article is. This issue was addressed last year by the MOJ and High Court!

    The author is clearly looking for more loop holes for his clients!

    • Marcus, my first post includes the High Court judgment of 2015 in Nicholas v SSoD and the 2015 judgment from Birmingham.

      The MoJ guidance is simply on section 42 applications to transfer.

      Point to the High Court and MoJ documents you are referring to, because in the meantime, there is no evidence that you are not talking tosh.

      You are happy exposing your landlord clients to the risk of set aside applications and damages?

  11. I work for a local housing authority and, like Ben (above), we are seeing an increasing number of clients who have been evicted by HCEO’s as described above. Such evictions not only cause our clients and their families a great deal of stress, but also make it difficult for us to effectively manage our resources and ensure that we have enough accommodation for people who need it (I appreciate that, as a local authority employee, I may have little sympathy in respect of this). We are keen to consider how best to address this issue but, for now, I wonder how we might be able to get confirmation of what forms have been relied on by landlords (or their agents) in order to obtain the High Court Writ (assuming that those parties would not be keen to share such information with us)? Apologies if this is obvious, but if anyone can help, I would appreciate it.

    In the meantime, may I pass on my thanks to all of you who put in time and effort to maintain this most interesting and useful website.

  12. I would be most interested to know if the forms you are referring to are the very same forms that a Housing Association might use to evict a social housed tenant, battling bedroom tax by assisting tenants as a (lay rep) evictions have been few, however this is certainly going to change from April this year through till probably 2019. Alan

    • No, they aren’t. Not unless the landlord has sought to use High Court enforcement, which they very, very rarely do – Birmingham came a cropper, as in the linked post.

  13. As Counsel in many of the Birmingham cases I take the view that the position is crystal clear an eviction of a tenant by an HCEO by the use of N293A when leave of the court has not been obtained is unarguably an abuse of process of the court and therefore local authorities who are finding tenants evicted by bailiffs in their offices at short notice should be urgently referring people for advice

  14. @David there Thinking from the perspectived of saving homes and homelessness prevention I wonder if it would be right to argue that warrants obtained in this way would be viewed as Oppression?

    Homelessness prevention teams could help the tenant get the warrant set aside.

  15. Agree with you 100% Giles – as did the judge in my own case of a tenant evicted by HCEOs on the basis of a Form N293A. High Court out of hours application Friday. Returned Monday. Re-admission ordered pending further return date at which landlord’s solicitors (I assume nervous of being keelhauled by the court for their use of said form) got counsel to negotiate a very substantial sum in respect of damages for illegal eviction and our costs – so unfortunately we never went back in front of the court to argue it. Judge held (albeit at one-sided hearing) it was an abuse to use N293A against a tenant as the form – signed by the solicitor – contained a false statement that the tenant was a trespasser. I didn’t go into the contempt point as it wasn’t relevant but I suspect the issue would have been examined quite forcefully had the landlord’s solicitors not made their hasty settlement.
    We had applied on the failure to comply with 83.18 but on seeing the papers the use of N293A emerged as the unarguable point.

    Landlords are going to keep chancing it of course as the wait for county court bailiffs is ridiculous. To my mind the automatic nature of referral up from some county courts is a real issue and the lack of clarity about what notice is required. The Court in Ahmed v Mahmood didn’t quite get to grips with the whole issue of notice and transfer to the HC, which is a shame.

    • I had cause to contact Channel 5’s legal compliance department a year or so ago about their fanciful application of statistics in relation to the housing waiting list in one of their ‘bash a claimant’ programmes. They wriggled a bit but still repeated the programme, unaltered.
      I have sent an email to Channel 5 linking to this blogpost but, based on past experience, I don’t think they will be bothered unless a shit storm of negative publicity comes out of it.
      Perhaps a mainstream journo at the Guardian could be persuaded to look at it?

  16. Giles and Ben

    Happy New Year to you both but you are really talking a load of tosh when you say this is widespread and causes practical mayhem for LA homeless departments….

    …wait till April this year when the overall benefit cap reduces by £500 per calendar month in all areas outside of London. Then you will see what ‘widespread’ and ‘homeless unit mayhem’ really means!!

    PRS landlords in the North will be evicting tenants (and their whippets) in massively increased numbers as reduced benefit cap in simple terms now only affects private tenants with 4 or more children in the north yet in April affects and will see eviction of families with two or more children on housing benefit.

    As usual you explain the finer legal details well yet the use of ‘widespread’ has to be noted as the benefit cap reductions ‘oop North’ will hit over 30 times as many households as it does now and in just over 12 weeks time. It is that increase which is the issue and the use of the wrong form and tapping of nose will become more than a mere scandal and, Ben, that increase will see homeless units up here have a mindblowing mayhem than they have ever seen before.

    For example, Liverpool has just 148 benefit capped cases and manageable by DHP in the main yet from April it will have at least 3000 cases of eviction because of it and 75% or so of them will be in the PRS with landlords presumably using these nod and a wink bailiff procedures.

    The scale of that increase and presumably increased use of unlawful evictions is there for all to see and that will happen across the North West in which just 3 of 39 LAs have housing stock to compound and further increase homelessness unit mayhem.

    London, which only gets a £250 pcm overall benefit cap reduction will have no such similar increase as it is already at a tipping point and may only see a doubling of affected benefit capped cases compared with the typical 30-fold increase in the North West.

    The scale of this scandal is about to explode in other words…

    • Oh Joe, what marvellous whataboutery – it is possible to talk about other issues without mentioning the benefit cap every single time!

  17. Giles, I am fully understanding what you are saying regarding the use of N293A. However, is it still possible to request the transfer during the possession hearing stating S42 CCA. If the judge agrees and states on the order HCEO can enforce the order, this is okay I assume?

    • That is the first step which has to be done anyway. Then have to apply for a High Court writ, which requires the permission of a high court judge and notice to the tenant.

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  21. For the sake of anyone’s sanity, having spent an hour on the phone to the High Court today trying to avert aHigh Court eviction and dealing with their life sapping multpile choice call centre I am pleased to announce that anyone wanting to get hold of the right team needs this number 0207 947 7772. This is the enforcment team of the Queens Bench Division.

    I suffered so you dont have to

  22. I’m still waiting for the “debunking” promised by David Carter.

    I looked into this process in-depth last year for the Housing Association whom I now work for, and – FWIW – I agree with Giles’ assessment of where the law stands 100%.

  23. I’d be interested to know what your opinions are on the position of tenants when the HCEO’s are enforcing an order against a mortgagor. Permission is also not required in mortgage cases (so not limited to trespassers), but the tenants (authorised or unauthorised as against the lender) won’t receive the same notice they would if enforced through the County Court…

    • If the tenants are authorised as against the lender, I can’t see why the lender would be enforcing (or obtaining) a PO. Unauthorised tenants – yes, no notice. Such tenants would hopefully have applied for their two month stay at an earlier stage.

  24. Thank you all. This is an interesting discussion. Have any of you had a chance to consider Form PF86A?

  25. I had a discussion with an HCEO just yesterday who uses the PF86A and it does seem a valid route to getting a writ against tenants but the matter of the sufficient notice required by CPR 83.13 is still not adressed.

    It occurred to me that if you were a compliant HCEO giving sufficient notice operating in a field where you were competing against non compliant firms offering 24 – 48 hour evictions you probably wouldnt get the work

    • The PF86A is the request you use when you’ve got permission; and you have to produce both the order for possession and permission to issue the writ when filing the request (CPR83.9(5)(a)(i) & (ii)). The notice requirement is considered by the Master on the application for permission.

    • Thanks for that. Not sure it is wholly right. I have only seem PF68A referred to elsewhere in respect of an application for a writ from a High Court judgment. But, on a possession claim against tenants, would still be pre permission under CPR 83.13(2). So it might be the right form, but would (a) still need the court’s permission under CPR 83.13(9)(5)(ii) and 83.13(5), and (b) would need evidence of compliance with 83.13(8)(a).

  26. What I found interesting is that I am looking to go down the HCEO route and I called the court helpline today for advice on 2 occasions and they both said I need to complete an N244 form followed by an N293a form! I told them that it states it’s for trespassers only and they said their guidance notes state that an N293a form is needed. So clearly even the court system is confused?

    • Which court was that? Though it doesn’t wholly surprise me. Court admin not usually up on the fine detail of procedure. But if they have guidance notes, those need revising!

  27. I called 0300 123 5577 which is the telephone number on the court papers issued by Watford County Court, however when I called it I had the impression it covers a wide range of regions, not just Watford (e.g it mentioned Birmingham in the menu). If you google the telephone number others courts including Warwick, Coventry & Croydon use the same number. So rather worryingly, the advice they gave me is probably being given on a wide scale…

    • Ah, County Court advice line. OK, they won’t know anything much about High Court procedure. And for most money claims, etc. N293A would be right, which is probably where their script comes in.

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  29. Just a thought – wouldn’t it be quite difficult to bring a subsequent unlawful eviction claim even where the writ is set aside. I’m thinking in this context of Hillgate House Ltd v Expert Clothing Service and Sales Ltd [1987] 1 EGLR 65 and Brent London Borough Council v Botu (2000) 33 HLR 151, CA where a person is acting pursuant to a court order they are not acting unlawfully even though the order may later be set aside. Has anyone come across a case where a high court writ was set aside and then successful unlawful possession proceedings were pursued? If so, I would be grateful for the reference. Fascinating stuff!

    • No cases that I know of.

      It has been suggested, probably rightly, that breach of the covenant of quiet enjoyment or derogation from grant would be a better cause of action (as per Botu).

      That said, in both Hillagate and Botu there was no question that possession (and in Botu the warrant) was properly obtained, albeit set aside later. A writ obtained through an abuse of process – and potentially a knowing abuse of process and contempt – may be a different issue. However, my leaning towards unlawful eviction was particularly in cases where there had been a re-let such that re-entry was impossible.

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