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Unlawful eviction and harassment

A bit too unrestrained

Emery v Wandsworth LBC (2013) QBD 14 November 2013 [not reported elsewhere, note on Westlaw]

This was an application by Ms E for permission to apply to discharge a Civil Restraint Order made against her in the High Court. Ms E had made an urgent application in person to the High Court for a stay of eviction. This had been granted by a High Court judge who was unaware (and not told by Ms E) that she had a CRO against her in the County Court, and ongoing County Court proceedings on the eviction. In fact, the County Court case was due to have a hearing on the same day as Ms E’s application to the High Court. The District Judge was unaware of Ms E’s application to the High Court or the High Court’s order, and refused a stay of eviction.

When the High Court found out the true position, a CRO was made covering the High Court (as the County Court CRO could not prevent an application to the High Court).

Ms E applied for permission to seek to discharge that High Court CRO. She argued
(1) she had been forced to go to the High Court in order to seek relief as she had been denied relief in the county court;
(2) she had told her counsel in the county court that she had obtained a High Court order but had not been permitted to address the judge on that point;
(3) the High Court judge had not been entitled to extend the CRO

This was less than successful.
On (1) Ms E had made several statements that were false, but even assuming, with the benefit of the doubt, that she had no alternative but to go the High Court, it was wholly unacceptable that she had done so while the matter was being considered by the County Court, where Ms E had actually instructed solicitors and counsel. The High Court order hadn’t come to light until after the District Judge had refused her stay application.

On (2), it was simply inconceivable that if Ms E had indeed informed her solicitor or counsel in the County Court of the High Court order that they would not have informed the District Judge. In fact, the transcript of the County Court hearing showed that Ms E had been told not to address the court, because she had counsel to make submissions on her instructions.

On (3) the submission that the High Court could not extend the CRO was misconceived. The County Court CRO did not extend to the High Court and it was necessary for a High Court judge to so extend it. The purpose of a CRO was to prevent ill founded applications, but to allow well founded ones to proceed. It was therefore to the benefit of both the local authority landlord and Ms E herself. The High Court judge had taken a balanced and proportionate approach.

Finally, it was clear that Ms E had a history of making ill founded applications, both in the present proceedings and previous ones.

While it was possible for a party subject to a CRO to apply to discharge it on the basis that there was a material change in circumstances, the dispute was behind them and evidence that there was no risk that they would continue to make vexatious applications, the history of this case since the High Court’s CRO, and the volume of material it had generated, suggested that there was no such evidence in Ms E’s case. As an example, there was her attempt to apply for permission to judicially review a refusal of temporary accommodation.

Permission to challenge the CRO refused.

Comment

Oh, so, so many questions. Starting with why did the High Court entertain what appears to have been an ex parte application for stay of eviction? And ending with but what was wrong with a JR of refusal to provide temporary accommodation? It can be the only route to challenge such a decision.

And then, the question that will be forever unanswered, what did she tell her solicitors?!

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.

1 Comment

  1. Arfan

    i’ve unfortunately had a client or two that have lodged application into court without telling me and I find out when we get a hearing date come in through the post for an application hearing we dont need / were trying to avoid until we had more evidence.

    Thankfully they haven’t tanked a case for me yet but I can possibly see what may have happened above…

    Reply

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