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.