In what has turned into a continuing series, there are further updates on enforcement of possession orders via the High Court, obtaining writs and the scandalous conduct of many High Court Enforcement Officers. (Previous posts here and here)
Secretary of State for Defence v Nicholas, High Court (CH Div) (15 January 2016) (copy of Judgment).
We saw the first writ related round in this matter last year – indeed, it kickstarted a wider investigation into what was going on in High Court enforcement. In that case, the SSoD had obtained a writ, with the permission of a Master, but without mentioning a pending application for permission to the Supreme Court and, crucially, without any notice of the writ application to the occupier (CPR 83.13(8)(a) ). The writ was set aside. Permission to appeal that decision was refused. In the original court of appeal hearing in February 2015, Ms N was refused an injunction to restrain issue of a writ pending application for permission to the Supreme Court. The SSoD then applied again for a writ, this time sending copies of the application to Ms Nicholas’ solicitors by email and post.
The High Court refused to stay the application pending the Supreme Court decision on permission to appeal (which was in any event refused shortly after this judgment). Deputy Chancery Master Cousins was also satisfied that the notice provisions of CPR 83.13(8)(a) had now been met. The writ was approved.
So, further proof, as if it were needed, that a) the permission of the court is needed to issue a writ of possession against a tenant, and b) that the court must be satisfied that sufficient notice has been given to the occupiers “sufficient to enable the occupant to apply to the court for any relief to which the occupant may be entitled”, which, on these binding decisions, means notice of the application for a writ.
Meanwhile, it appears that a number of HCEOs have tried to circumvent the requirement for permission to ‘transfer up’ by the County Court under section 42 County Courts Act 1984 by instead directly applying to the High Court to take over the matter under section 41 CCA. The HECOs’ excuses were:
The HCEOs have informed the Masters that that County Court Officers are refusing to certify Form 293As, without explanation. We have also been told that when applications are made under S.42, some County Courts can take some 6-8 weeks to deal with them, and in the case of Possession Orders this means a significant loss of rental income to the Judgment Creditors. Thus it is much more efficient for Judgment Creditors/Parties with the benefit of a Possession Order, to enforce through a HCEO rather than via County Court Bailiffs, so the HCEOs have no alternative but to make applications under S41, where they can get an immediate Order and issue a Writ of Control/Possession straight away.
The HCEOs will have to find an alternative, because the Queens Bench Senior Master issued a practice note on 14 December 2015, which goes on to state:
The QB Practice Masters have been dealing with such applications, and making S41 orders. However, as the County Court file and log for the case is not available to the QB Masters, in a number of cases their orders have conflicted with orders made by Judges in the County Court. This has caused considerable problems in some cases.
Accordingly, after consultation with the Deputy Head of Civil Justice, the President of the Queen’s Bench Division, and the appropriate policy officials of the Ministry of Justice and of HM Courts & Tribunal Services, I have determined that the QB Masters will not make Orders for Transfer for Enforcement under S.41 unless on notice, and therefore all applications for transfer of County Court Orders and Judgments for Enforcement should be made either by an application under S.42 to the District Judge making the order, or, if for a Writ of Control or of Possession in a claim against Trespassers, by lodging a properly completed Form N293A at a County Court Office.
Turning to HCEOs seeking writs of possession against tenants (not trespassers), via the use of form N293A (the one which certifies it is for a writ of possession against trespassers), since this post, I received some, shall we say robust responses from HCEOs, including the Sheriffs Office and Vicks Enforcement. Both of these firms stated publicly and definitely that they used form N293A for writs against tenants and that this was perfectly fine and in accordance with ‘guidance’ (though they would never say what guidance). Vicks then blocked me on twitter.
So, I wrote to the the High Court Enforcement Officers Association, asking them to tell their members to stop this practice. They replied:
We are aware that a number of our members are issuing and enforcing Writs of Possession in the manner you describe. I can also advise that the issues arising out of the Judgment of District Judge Salmon, and specifically the use of the N293A, have been raised with Senior Master Fontaine. We have sought clarification from the Senior Master in respect of the procedure to be used by our members.
As soon as we receive a response from the Senior Master I will respond to you fully to set out the association’s position.
So, I wrote to Senior Master Fontaine (QBD) as well.
As I understand it, a new practice note on this issue will be published shortly. I expect a public apology from the Sheriffs Office and Vicks Enforcement, amongst other HCEOs, together with a public acknowledgment that their practice in respect of using and advising the use of N293A for tenant evictions has been utterly wrong all along. But somehow I don’t imagine that this will happen before the practice note is published.
So, there will have to be at least one more post on this issue, once the practice note is issued. At least since Nicholas v SSoD last year, it has become apparent that bad practice is widespread in the HCEO field. Hopefully, it will soon be stamped out. Credit for raising the issue in difficult circumstances goes to Amy Just of Arden Chambers. Nothing we’ve done would have been possible without her work.
Bloody Well Said Giles, if I may put it that way.
Let us hope the forthcoming guidance will put an end to this disgraceful practice and tactics by all those in authority.
It should make the correct procedure very clear.
It is absolutely right that wrong practices should be corrected.
However, it was an attempt to deal with a real problem – the fact that in the County Court the time it takes to arrange a bailiffs appointment is frequently unacceptable.
In many cases tenants will not be paying rent and the hapless landlord is effectively being forced to house them free of charge.
It is wrong that landlords who have followed the proper procedure and obtained an order for possession should then be forced to wait a further two to three months before they can recover their property.
If County Courts cannot deal with swifter eviction of tenants and the Sheriffs can, some method should be found to enable them to do so.
Well yes, Tessa, but the problem I have encountered is that unscrupulous landlords have transferred up claims where they have obtained orders on s21 notices via the accelerated procedure by lying about the existence of a deposit (unprotected).
And solicitors have warranted to the court on N293As that the tenants are trespassers when they are nothing of the sort.
Of course the timescale on county court enforcement is ridiculous and we all know about tenants and solicitors gaming the system by making hopeless applications to have orders set aside timed so late that the eviction date is lost. BUT the county courts have to start
a) … you know … like actually reading accelerated procedure claim forms
b) not rubber stamping transfers to the High Court which have clearly been made not in compliance with the need for notice
It’s not that hard even though I know DJs and deputies have huge pressure from the volume of work they are required to do. It’s the sort of slapdash practice that I would rightly be slammed for as counsel.
And some solicitors need to stop fibbing to the court, which I think from memory is not something they should be doing.
BTW I act for both landlords and tenants
The dodgyness extends beyond the HCEO firms. When I rang the support team at the enforcement arm of the QBD a couple of weeks back the clerk I spoke to told me that the warrant I was questioning didnt have to go before the Master at all as they had received a “Sealed order” from the County Court, so it was merely an admin task in issuing.
Surely it cant be beyond the high court to have someone look at these applications on N29As and compare them with the county court paperwork to see if its a tenancy that is being ended.
Also to ensure that sufficient notice is given under the CPRs. I get the impression they are just rubber-stamped in much the same way as possession in accelerated proceedings where the order is issued without bothering to check if the deposit protection regulations have been complied with. A good 30% of possession orders I see should not have been granted in the first place.
I’m slightly surprised. I was under the understanding that the RCJ QBD office had instructions not to accept any N293As where the underlying possession order was not against ‘persons unknown’ (Ie trespassers). Still, hopefully the forthcoming guidance will settle this (at the RCJ and the District Registries).
Agreed on accelerated possession procedure. It wasn’t designed for the level of fact checking that is now arguably required (and going to get more complex post Deregulation Act).
The main issue here is that the whole eviction system is inefficient, complex, and slow.
Clearly, whilst some might be cutting corners in order to speed things up, others are using the system to prevent or delay evictions that are ordered by a court of law.
A deep reform is necessary so that all evictions are carried out without further notice within 7 days of the court order’s deadline.
That would serve justice better and save resources and grief for all involved.
Surely, no-one would be against a system ensuring that court orders are obeyed in a timely manner.
I would certainly agree that there are reforms to be made to simplify enforcement of possession orders. It could indeed be a simple and clear process, while keeping the necessary opportunity for tenants to exercise their rights.
But what you are actually asking for is a big increase in resourcing. Every court user (except for the multi million pound cases in the Rolls Building) knows how dramatically underfunded and ill resourced the courts are. It is exasperating for all of us, as even simple cases get lost or dragged out. I’m afraid that this is only going to get worse.
Giles,
Once a court has made an order for possession, the only rights a tenant have, or should have, is that the eviction be only carried out by authorised people and not earlier than the order’s deadline (any appeal can be lodged by that date as there is usually a 2 week deadline).
There is therefore absolutely no need for further delay or notice.
What I propose does not require any increase in court resourcing. In fact savings could be achieved.
Even if a warrant of execution is required, since we are in 2016 this can largely be automated and done online.
Authorised professionals like bailiffs or HCEOs could then immediately carry the eviction out.
If there is a lack of such professionals, higher fees, should attract more. Such fees would automatically be the tenant’s liability in full since they would be in breach of the court order.
On the other hand, local authorities should have the obligation to re-house (as the case may be) no later than the court order deadline’s expiry. That way the court order is obeyed, the tenant is spared the cost and stress of the eviction, and bailiffs’ time is saved.
Rights do not end at a possession order, and it is easy to find perfectly valid examples of situations in which a possession order can be challenged, eg where the tenant was unable to attend hearing for a good reason and has a defence, or where the tenant was not served with the claim & has a defence (which happens). Deadline for an appeal is 21 days, but for a set aside application, it is to have acted promptly upon knowledge of the situation. Tenancy continues to eviction, and with it tenants’ rights. Any change to that is a major statutory change, not a tweaking of enforcement.
Apart from your ’14 days for any appeal’, which is a matter of law not administration, I don’t see what the difference to now is? Warrant applications can be made immediately on the date of possession set out in the order already. Electronic filing of applications should be possible – it should be possible to file applications electronically generally – but that is, to put it mildly, some way off (and yes, it is a resource issue to build those systems!).
You appear to want a two track system for landlords, depending on how much they are willing to pay, which is odd. Again, the warrant fees are already recoverable from the tenant, so no change there (though how far that is practically possible is another matter)
The resourcing issue is not so much the processing of warrant applications, but the availability of bailiffs.
There is a review of enforcement going on, as part of a wider review of the courts system. It may well be that there is a streamlining of the process of transfer to High Court enforcement. But the requirement that the occupiers (where not a trespasser case) are on notice of the transfer is likely to remain, because if (for any of the good reasons already mentioned), the tenant needs to apply for a stay, pending application to set aside, they need to know what proceedings (and court) to do it in.
Most tenants will not be owed a housing duty by the local authority. But I agree that the policy of waiting for eviction is damaging to both tenants and landlords.
@Giles,
Everything is impossible to those who do want change.
E.g. electronic applications should already exist and would save courts resources.
I do not advocate a 2-track system.
I proposes a single track system, possibly with higher fees if lack of professionals is an issue. I also think that there should be a single pool, i.e. that it should be possible to immediately instruct either bailiffs or HCEOs.
Streamlining the transfer to the High Court is not solving the issue. There should be no need to transfer anything and the point of contact can and should remain the County Court.
Once the order’s deadline has passed, eviction should take place immediately and without further notice.
The issue is that many people have a vested or political interest in creating red tape and in making eviction difficult.
I think there is a certain amount of truth here. ALL enforcement procedures IMO are unnecessarily bureaucratic and rooted in the 19th century.
There should be an easy way to instruct the HCEO. Provided notice is given to the occupiers I don’t see where there should be any problem here and it would relieve the pressure on the bailiffs service.
I saw a comment on Property Industry Eye this morning to a post on un unlawful eviction case where the landlord received a fine of some £1,370 plus costs (total in the region of £4,000+) saying that in view of the losses that landlords suffer in lost rent due to delays in getting evictions, it could be considered a worthwhile investment. http://www.propertyindustryeye.com/letting-agent-that-unlawfully-evicted-tenant-told-to-pay-bill-of-over-4000/
We need to bear in mind that if the court process is seen as too unfair on landlords there will be a big temptation for them to take the law into their own hands. Which is undesirable.
Agreed on all counts.
I didn’t say it was impossible. Just that there were resource implications that you were ignoring!
I would also be delighted to see enforcement streamlined. I don’t think there is much in the way of vested or political interests in creating red tape or making eviction difficult per se. But when you have a process which has ‘developed’ over the years by way of small changes or additions to older rules, the whole thing ends up cumbersome.
I strongly suspect the reason it has not been tackled is time and money. Time for any new process to be devised and money to implement it. And there are some major changes (for instance the effective privatisation of the county court bailiffs and a large change in their powers) which are not insignificant. The change in powers would take legislation, for example.
So – again – I don’t think you have taken account of the complexity and resources involved in making what appear to you to be simple changes.
That said, I strongly disagree on the ‘without notice’ part. There is no need to drop that as it would not add any significant delay and there are good reasons for the notice requirements.
A court of law has ordered the tenant to leave by a certain date.
Giving further notice (already have had notice through the court order) that this will be enforced and eviction carried out is un-necessary and a waste of time and resources.
The only thing it achieves, as we see now, is that it weakens the court order because tenants (and local authorities if re-housing is contemplated) know that this is not the final notice or deadline and that they can stay put until they receive actual notice of the eviction from bailiffs.
I do think that this exemplifies un-necessary complexities and red tape.
Of course they are political aspects as well. Obviously some people are against evictions, full stop.
As said, everything is impossible to those against change.
The tenancy continues to eviction – so said the House of Lords. Requires primary legislation to change (and it won’t be changed, because the alternative is to invite self-help with baseball bats).
There are very good reasons why notice of eviction is standard. And it does not necessarily cause delay. You continue to confuse the administrative and the legal. As the tenant remains the tenant, they are entitled to remain. The ‘wait till eviction’ approach of local authorities is a distinct, separate issue (and one that quicker eviction wouldn’t change).
In the current climate, I would have thought inviting wholesale legislative reform of the possession process might be a little risky too. Who knows what further conditions might be put on section 21…
I don’t think we are actually disagreeing much, I would also be happy to see reform and simplification of enforcement, just that you are unwilling to consider that the changes you want may be more complex to achieve (and therefore expensive) than you are willing to admit.
Yes, the tenancy continues until eviction. I haven’t suggested otherwise and am not confusing anything.
I think this thread proves my point about resistance to change.
Oh Romain, stop being such a prima donna. I’ve been largely agreeing with you!
Tell you what, how about we ask Osborne to ring fence the additional taxes from the changes to mortgage interest tax relief for investment in reforming enforcement processes. ;-)
The problem in practice that I am encountering at the moment is on trying get confirmation of whether or not the HCEO have used the N293A to obtain the warrant or the PF86A. Onw would be an abuse of process while the other one isnt. How can you fill in the N244 to get the warrant set aside when you dont know the reason for asking?
I asked an HCEO for a copy of the form they used and he laughed like Brian Blessed…..unsurprisingly but whatever form is used there is still the thorny issue of CPR 83.13 and I think the High Court themselves seem guilty of that one
Then go on breach of CPR 83.13(8)(a) – failure to notify occupiers – and demand that they produce the High Court judge’s permission for the writ in the application proceedings? If they can’t, also breach of 83.13(2).
@Tessa. “Rooted in the 19th Century”….indeed. The Writ of ‘Fieri Facias’ as some High Court warrants are called became a slang term for a bailiff in the 19th Century due to their red faces caused by perpetual drunkeness https://en.wikipedia.org/wiki/Fieri_facias
Not that I’m casting aspertions you understand………….
Can I just say, another problem for advisers was encountered by me today.
Briefest background: homeless family fetches up saying evicted by landlord with High Court writ but evidence points to the notion that he had permission to transfer up from county court but no writ in evidence, so probably illegal eviction.
I called High Court, Queens Bench Enforcement Division for clarification. They said e-mail request for info in but you get an instant bounce back message saying they will deal with your request for information within 5 – 10 working days. Too late to do anything about remedying the immediate situation.
Is there a conspiracy here????
I’ve heard that a tenant who was evicted without notice under CPR 83.13(8)(a) appealed, successfully, to the Court of Appeal. I can’t find that judgment. Does anyone know of that cases’s details?
Not Court of Appeal. It was High Court. Nicholas v SSoD. See http://nearlylegal.co.uk/2015/11/eviction-and-high-court-enforcement/
I know about Nicholas v SSoD but I had heard there was a Court of Appeal case as well – presumably in the past year if not less.
Not that I know of. (And I probably would know.)