Pritchard & Ors v Teitelbaum & Ors [2011] EWHC 1063 (Ch)
This case forms part of the aftermath of Fineland Investments Ltd v Janice Vivien Pritchard [2011] EWHC 113 (Ch) (our report here). It appears that Ms Pritchard was not going to take either the possession order granted in that case, or indeed her subsequent eviction, lying down. But she was not going to take the usual route of appeal or timely set aside application either. There may well be more on Ms Pritchard’s cases at a later date, but the significant issue in this hearing concerned the warrants of eviction obtained without application for permission of the court or notice to Ms Pritchard by Fineland.
In the earlier case, Ms P had granted a lease to Fineland on 9 August 2004, under an agreement by which Fineland were to pay the money to complete the right to buy, plus £20,000 (though the £20,000 was not actually paid at that time). Three years later Fineland were to be given the freehold title. Under the agreement, Ms P was to move out straight away. Fineland had in fact given her until 30 August 2004 to move out. Ms P didn’t move out and sought to resile from the agreement with Fineland. Fineland brought possession proceedings in 2006, eventually decided in January 2011. Ms P had not attended the trial (having made a failed application to adjourn the day before) but was present when the judgment was handed down. In their claim, Fineland had sought both possession and other relief (rectification of title and other things).
As we previously noted, Fineland were given a possession order and Ms P was refused permission to appeal. Ms P was subsequently told by solicitors for F that 14 March 2011 was the date on which she would have to give up the property.
On 9 March 2011, Ms P appeared before David Richards J apparently asking for a stay of the possession order. She was told that if she wished to make such an application it would be heard on 11 March with Fineland attending. That hearing was not pursued. Ms P did not leave on 14 March. Instead:
On that date, the solicitors for Fineland were contacted by Mr Carew-Reid. On 15th March 2011, Mr Carew-Reid sent to those solicitors the Claim Form in proceedings which were issued by the Claimants on 11th March 2011. In the details of claim set out in the Claim Form, Mr Carew-Reid claimed to be the owner of the premises pursuant to an alleged agreement of June 2004. Mrs Pritchard and her son also claimed damages and possession of the premises as a result of what they said was immoral behaviour, conspiracy to defraud and a fraudulent trick by the Defendants. The Defendants included Fineland and also an associated company of Fineland, a director of Fineland and three firms of solicitors.
Plus
On 21st March 2011, Mrs Pritchard issued an application in the 2006 proceedings. The order which she sought was that there be a directions hearing in relation to a later full hearing of an application to stay and/or to set aside the order made on 31st January 2011. That application was returnable on 7th April 2011 when directions were apparently given for a hearing on 5th May 2011.
Fineland applied for a writ of possession on 30 March 2011 and it was issued the same day. There was no application for permission to issue the writ. (Although the writ was in form No 66 – which should require permission – rather than form 66A, the Court in this case found that this was a waiveable irregularity).
The writ was enforced on 1 April 2011, with two enforcement officers and police. There was no notice served on Ms P. The events of the eviction are thoroughly disputed, with allegations on both sides as to conduct. Ms P was arrested for aggravated trespass. A number of Ms P’s belongings, as well as those of her son remained in the property.
On 7 April, Mr Carew-Reid appeared before Morgan J, without notice, to make the present application for re-entry. The application was listed for 13 April, to allow Fineland to be heard. (Mr Carew-Reid’s account was apparently somewhat selective, but Morgan J has the judgment of 31 January 2011 retrieved.)
Ms P alone attended the hearing of 13 April 2011, unrepresented.
The issues:
- Should the writ be set aside and re-entry ordered without consideration of the chances of success of Ms P’s application to set-aside the possession order apparently to be heard on 5 May.
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Was the writ of possession unlawful as obtained without application for permission by the court?
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Was the writ of possession unlawful as no notice was given to Ms P?
On 1, Morgan J held that given that the application to set aside the possession order may not be successful and setting aside the writ now would quite possibly only require a further writ to be obtained in a few weeks time, it was necessary to consider the prospects of success of the application to set aside the possession order, even though it was not for deciding at this hearing.
CPR 39.3 applied, as the hearing that Ms P had not attended was a trial, but in any event 39.3(5) should be applied by analogy even if it was not a trial (LB Hackney v Findlay).
it is strongly arguable that Mrs Pritchard did not apply promptly to set aside the order of 31st January 2011. Further, in view of the refusal of Floyd J and of the Deputy Judge to adjourn the trial, I do not think that Mrs Pritchard has put forward a good reason for not attending the trial. In addition, it is strongly arguable that she has not shown a reasonable prospect of success at the trial. I would describe Mrs Pritchard’s prospects of success in obtaining an order setting aside the order for possession as being only slight. In my judgment, those prospects are not sufficient to persuade me to restore her and her son to the premises in the meantime, while an application to set aside the order for possession is further considered.
On 2, the permission issue, Fineland had taken the view that their application for a writ fell under RSC order 113 r 7, which gives the exception to the usual rule that permission is required under RSC order 45 r 3.
Order 113 r 7 refers to ‘an order for possession in a possession claim against trespassers under Part 55’. CPR 55.1(b) describes that as “a claim for the recovery of land which the claimant alleges is occupied only by a person or persons who entered or remained on the land without the consent of a person entitled to possession of that land but does not include a claim against a tenant or sub-tenant whether that tenancy has been terminated or not”.
Morgan J found that Fineland’s claim fell under 55.1(b), as Ms P remained as a trespasser after 30 August 2004, the date that Fineland’s limited licence to her after 9 August 2004 expired, albeit that she had not entered without consent.
However, CPR 55.2(1)(a)(iii) refers to a possession claim brought by a “licensor (or former licensor)”, while CPR 55.2(1)(b), refers to “a possession claim against trespassers”. Fineland’s claim could also fall under 55.2(1)(a)(iii), so did this exclude also falling under 55.2(1)(b)?
Morgan J held that these provisions were not mutually exclusive and that the claim could fall under both:
Paragraph (a)(iii) refers to the person bringing the claim: paragraph (b) refers to the person against whom the claim is brought. A single claim can come within both provisions. As I have explained, this case would seem to fall also within the definition of “a possession claim against trespassers”.
Did the fact that the original 2006 claim for possession also included other heads of relief sought prevent it from being a claim against trespassers? While it was not always straightforward to apply the provisions of CPR 55 which referred to a claim against trespassers to the detail of the 2006 claim, paragraph 1.7 of PD55A refers to Part 55 applying to proceedings which include a claim to possession but also includes other claims, and this would apply to the 2006 claim such the claim for possession itself was a claim against trespassers even if the other heads fell outside the CPR 55 provisions.
In any event, it would be against the policy purposes of Order 113 r 7 to restrict it to claims for possession simplicter.
Obiter, it would in any event have been possible to seek permission under Order 45 r 3 by way of an ex-parte application. Fleet Ltd v Lower Maisonette [1972] 1 WLR 765, apparently to the contrary, being best taken as a restricted case falling under order 46 r 2(1)(d).
Held that the writ of possession was properly issued even though permission was not sought.
On 3, the lack of notice to Ms P:
there is simply no requirement in any High Court rule or in the forms for the writ of possession that notice needs to be given to the persons against whom the order for possession will be executed.
So the writ was properly issued and executed. The writ was enforceable against Mr Carter (Ms P’s son) who had no rights against Fineland. There was no evidence that Mr Carew-Reid was in possession of the property before 1 April 2011
Further, in so far as Mr Carew-Reid relies upon the contract which he says he made with Mrs Pritchard in June 2004, that contract is not binding on the leasehold interest held by Fineland as the contract was not at any relevant time protected by registration at the Land Registry. Fineland’s entitlement to possession is pursuant to its title as lessee of the premises. Further, although I need not decide anything on this point, the genuineness of the alleged contract of June 2004 calls out for investigation.
Any alleged unlawful actions in the course of enforcement – and these were hotly disputed – would not affect the validity of Fineland’s recovery of possession, ‘with or without a valid writ of possession’.
Fineland had agreed to Ms P and the others, under suitable arrangements, having access to retreive their belongings.
All that remained was a costs order against Ms P for the hearing of 13 April in respect of the third and fourth Defendants, being Fineland’s previous and current solicitors. “In addition to joining these Defendants to the application of 7th April 2011, the Claimants also gave notice that they required a number of individual solicitors from the Third and Fourth Defendants to attend the hearing on 13th April 2011 so that they could be cross-examined. The result was that the Third and Fourth Defendants separately instructed counsel to represent them at the hearing.”
As the application for re-entry only concerned Fineland, this was wrong and the application to cross-examine individual solicitors wholly misconceived. The third and fourth Defendants given permission to apply for indemnity costs at a later point, depending on what happened in the subsequent proceedings in relation to the allegations against them – presumably being the claim for “immoral behaviour, conspiracy to defraud and a fraudulent trick” mentioned above.
I somehow suspect this is not the last time we will encounter this litigation…