(Finally) AA v London Borough of Southwark [2014] EWHC 500 (QB)

This High Court judgment is remarkable in many ways, most of them worrying. It was the result of a six day hearing, with Southwark putting Kelvin Rutledge QC up against Mr AA in person and ended with findings against Southwark that were as bad as they could possibly be (and just perhaps even worse than the available evidence would support).

Mr AA was Southwark’s secure tenant. He had been evicted on 23 April 2013, immediately after a failed stay application and while he was still at Court, and the entire contents of his flat had been removed by Southwark and apparently immediately destroyed.

The case was Mr AA’s claim for (as interpreted by the Court) “reinstatement and for substantial damages for his unlawful eviction, unlawful homelessness and for the unlawful destruction of his possessions based on the torts of conspiracy, interference with goods, negligence and misfeasance in public office, breaches of the terms of his contractual tenancy and pursuant to the Human Rights Act under article 8 of the ECHR”.

The basic (although partly contested) facts were that Mr AA had had a secure tenancy from November 1989 and of the flat at issue since 2001. In November 2006, a possession order was made, ordering possession by 27 November 2006. In February 2007, this was varied to an order that possession would be postponed and that LBS was not entitled to make an application for the date for giving up possession and the termination of the tenancy so long as AA paid the current rent and £2.90 per week towards the judgment debt. Following a further application for a date for possession and warrant in June 2007, the warrant was struck out and further order made that possession should be postponed (in the N28 form) made in September 2007. A date for possession was again ordered on 1 July 2008, and thereafter, there were stays of warrant in September 2008, April 2010 and September 2010. Mr AA’s arrears varied from c. £3000 to c. £1000 during this time.

On 22 February 2013, Southwark applied for a warrant – as an administrative issue of warrant. This was issued by Lambeth County Court on 26 February 2014 with an execution date of 23 April 2013. It is important that it was a request for an administrative issue of warrant, bear with me. At this point Mr AA’s total arrears were in the region of £2300 – though this was disputed and there appear to have been direct deductions from benefit unaccounted for (see para 89). Mr AA applied for a stay, and that was heard on 22 April 2013. It was dismissed but Mr AA sought permission to appeal and an interim stay, which was heard on 23 April. Mr AA was not successful, and immediately after the hearing, Southwark had the locks changed on the flat (with no Southwark officer being in attendance). Southwark then, very soon afterwards on about 25 April 2013, removed all of Mr AA’s belongings which were still in the flat and destroyed them.

Mr AA brought then issued various applications in various courts, from 25 April 2013 on, mostly for re-entry and/or access to his belongings. There were orders that he should have access to retrieve his belongs (which had, of course, already been destroyed, but the courts were not informed of this by Southwark). He brought the present claim in Lambeth County Court, with a first hearing in May 2013. Southwark admitted fairly quickly that it had unlawfully destroyed Mr AA’s belongings when it should not have done and that an internal investigation was underway. That was the extent of the admissions.

That is the bare history. But on examination things got… complicated.

Issue 1. What was this hearing about?
Southwark maintained that previous directions meant that this hearing was restricted to the assessment of quantum on Mr AA’s claim for his destroyed belongings. They also argued that the eviction had previously been found to be lawful and that Mr AA’s pleaded case disclosed nothing further. Unfortunately for Southwark, the Court spent some time with the previous applications, pleadings and orders from Lambeth County Court and the High Court.

Scope of AA’s pleaded case.
AA’s claim was a claim for special and general damages for a tortious conspiracy whereby officers of LBS had conspired to unlawfully evict AA and to evict him by unlawful means from his flat and had further conspired to remove unlawfullly all his possessions from his flat and to dispose of them unlawfully.

The unlawful means and unlawful ends relied on included failures to follow the LBS’s Eviction and Goods Storage or Disposal Procedures, proceeding and securing AA’s eviction for an ulterior purpose and in abuse of process, pursuing his eviction more than six years after the possession order had been obtained without first obtaining the permission of a judge to apply for a warrant of execution, covering up and failing to disclose the details of the unlawful actions and omissions that had occurred, failing to act fairly and reasonably with regard to AA’s attempts to obtain re-entry and the restoration to him of his property and pursuing its defence to his seven applications in different courts for relief from the unlawful conduct that had deprived him of his tenancy and his possessions in a dishonest and abusive manner.

This extensive case is ascertained by a consideration of his claim form, statement of case, particulars and schedule of loss, the details of his applications related to this claim, particularly the interim applications heard on 1 May 2013 and 5 June 2013, the amended defence and the particulars and disclosure of the investigation conducted by Mr Matthews that were served pursuant to paragraph 7 of the amended defence and AA’s witness statements that had been served in connection with these claims

Cutting down by subsequent court orders.
This extensive pleaded agenda for the trial was not cut down by subsequent court orders. The relevant parts of these orders that LBS now contends had the effect of confining the trial to a limited agenda were merely concerned with interim applications related to one specific claim – for special damages for the loss of AA’s possessions quantified under the TIGA – whilst leaving open and for trial all other causes of action, loss and special and general damages for the loss of both his tenancy and his possessions.

Southwark’s contention that the life issues in the case were restricted to quantum on the loss of belongings was wrong, and indeed Southwark’s own pleadings addressed the broader case.

Issue 2. Was the eviction unlawful?

The key question here was whether Southwark could legitimately seek a warrant by administrative issue. CCR 26r5(1)(a) requires an application to a judge for a warrant, with witness statement tor affidavit, where there has been a period of more than six years from the date of the underlying possession order. The original possession order was in November 2006, so the February 2013 application was over 6 years later.

Southwark argued that CCR 26r5(4) meant that the relevant date was July 2008, when a further order was made fixing the date for possession, as there had been intervening orders effectively in the form of Postponed Possession orders, with no date for possession until applied for. CCR 26r5(4) provided that:

“Paragraph 1 [i.e. CCR 26r5(1)(a)] is without prejudice to any enactment, rule or direction by virtue of which a person is required to obtain the permission of the court for the issue of a warrant or to proceed to execution or otherwise to the enforcement of a judgment or order.”

Thus the subsequent variation of the original possession order, in the form of postponed possession orders with no fixed date for possession, meant that this was not a possession order under s.82 but a ‘putting off’ of the date of possession under s.85. Thus there was no possession order per se for the purposes of CCR 26r5(1)(a) until there had been an application to determine the date of possession.

This did not go well for Southwark:

CCR 26r5(1)(a) did not alter the requirement that LBS had to obtain the permission of the court before applying for the issue of a warrant in February 2013. What rule 5(4) did was to make it clear that the requirement that the permission of the court was needed before a warrant could be issued was without prejudice to the further requirement that an application had to be made to fix the date for permission. In other words, the requirement of CCR 26r5(1)(a) as applied to the facts of this case was that both applications had to be made, albeit the second had to be made nearly 5 years after the first had been made.

And the supplemental submission from Southwark that the administrative application for a warrant had had retrospective judicial approval when the stay application was dismissed was also rejected.

So, the eviction was unlawful because Southwark had not sought and obtained the Court’s permission for a warrant on a possession order over 6 years old.

Issue 3.  Disclosure

Oh dear.  This is where it all fell apart for Southwark. Sticking to their line that the only claim by AA was for loss of his possessions, and this had been admitted save for quantum, Southwark had disclosed nothing at all. This despite having stated in their Defence that “the precise circumstances of the disposal of [AA’s] belongings are currently the subject of an internal investigation and further details will be given in evidence”. This internal report had in fact been completed by 22 August 2013, but had not been disclosed. The internal ‘Matthews’ report, technically solely into the destruction of Mr AA’s belongings. concluded:

that management failings that were alleged against two income officers and one resident officer had amounted to gross misconduct and against a further income officer had amounted to misconduct and that there had been management failures by two managers in the Residential Team in failing rapidly to establish the gross misconduct of the three officers responsible for that gross misconduct.

Nor had Southwark disclosed the tenancy file, the ‘iWorld’ records (income officer, repair and related records) or ‘EDMS’ records (residential team records).

This all came apart quite drastically when Counsel for Southwark in the course of opening statements waved about some letters purportedly from housing officers to AA which had not been disclosed, were not in the trial bundle, and were indeed later found to have been faked, or art least not sent. Not the best opening.

On the second day of trial, Southwark were ordered to disclose the internal report (the Matthews report) and the tenancy file. Despite this the EDMS record was never disclosed, and the tenancy file turned out to be missing any entries at all after November 2010, despite the obvious subsequent activity.

Thus far, we have an unlawful eviction, and a destruction of Mr AA’s belongings which was both unlawful and in breach of Southwark’s own policies and procedures. Could it get worse? Why, yes it could.

Issue 4. Conspiracy, misfeasance in public office, negligence, breach of quiet enjoyment and article 8 breach.

This is so heavily based on the disclosed evidence, most particularly the Matthews Report, that I can’t even begin to summarise it. The evidence of what occurred is set out at paras 92 to 205 of the judgment. A few selected items would be that:

the ‘Subsequent Eviction Request form’ that had to be completed internally to request an eviction had apparently been prepared by the income officer and authorised by the area manager was nowhere to be found, giving rise to a clear suspicion that it had not correctly recorded the date of the possession order as being over 6 years before.

The Income officer had delayed writing to or visiting Mr AA until a few days before the eviction date (and it appeared that a letter of 15 April 2013 had not been sent at the time.

The usual process for a residential officer to be present at the eviction was ignored or circumvented. There was no Southwark officer present at the time of the eviction.

The keys were passed straight to voids, rather than to the residential officer as was standard practice.

The residential officer sent several emails stating falsely that the property was void and the contents could be disposed of as the tenant had removed what he wanted. The residential officer had wholly failed to follow Southwark’s procedures on belonging left in evictee’s flats.

On the day of the eviction there were a number of telephone calls between income officers, and their manager that were completely unexplained in their accounts to the Matthews internal investigation, despite those calls being put to them in the course of the investigation.

There were a number of subsequent emails from officers, in response to inquiries caused by Mr AA’s efforts to gain re-entry and return of his belongings, that were false and intended to mislead. For example, from the resident officer, who knew Mr AA had not been able to access the property after attending court:

“Voids just confirm (sic) to me that they have the keys and whatever was left in the property has been disposed of. There are pictures from Voids re the state of the property i.e. the occupier took what was needed and the rest was left in a real mess.”

To this can be added various other misleading statements, or silences in response to inquiries and indeed the Matthews internal investigation.

Findings

What the Court found was evidence of concerted actions by Southwark officers. The details are set out at 266 to 278 of the judgment.  In cumulation:

When the series of stages is considered in the round and in sequence, it can be seen that there was a central purpose of the concerted action, albeit that that purpose slowly transformed itself. The concerted action lasted from 27 December 2012 until 31 May 2013. Its initial purpose was to ensure that AA was evicted and that his chances of avoiding eviction by obtaining a further stay should be reduced or eliminated. Those involved turned a blind eye to AA’s possessions and showed, at best, a wilful disregard for them and, at worst, were completely indifferent as to whether they were retained or destroyed and gave no thought to them at all. However, as soon as the eviction was completed, the concerted action turned its attention to covering up the fact that those concerned with the eviction had acted in a flagrantly unlawful manner thereby ensuring that AA lost his possessions and the opportunity of obtaining re-entry.

Had the unlawful steps leading to AA’s eviction not occurred, it is highly likely that AA would have save his tenancy and kept his possessions. Had the cover-up not occurred, AA would have gained re-entry and would have succeeded in paying off his arrears and he would have been able to retrieve his possessions from the flat or from the storage facility to which they would have been taken.

And the upshot? The conclusions run from 281 to 298 of the judgment. And for Southwark they are as bad as they could possibly have been. They have to be quoted at length.

The unlawful actions that occurred

Ulterior motive.
Mr Davis and Ms Okwara were determined to obtain AA’s eviction whether it was lawfully obtained or not. Their motive in acting as they did was demonstrated to be an “eviction at all costs” motive. There is no other explanation for Ms Okwara’s delay in attempting to notify AA of the date of the eviction, in only half-heartedly attempting to carry out a home visit, in apparently hiding the relevant documentation from the Housing File and in making no attempt to obtain the permission of a judge to apply for a warrant. Equally, there is no other explanation for the series of lies that they told Mr Matthews about the telephone calls they made during the eviction and in deliberately engineering an eviction at which neither the income nor the resident officer were present and in making no effort to identify AA’s possessions, prepare an inventory of them and then remove them safely to storage.

It has to be remembered that AA had good prospects of persuading a judge not to approve an application for permission to issue a warrant, of obtaining a postponed possession order with no fixed date or a stay or suspension of the order or of a warrant. This was because AA had virtually eliminated his arrears of rental shortfall two years before the eviction attempt was started and LBS had acquiesced in the subsequent non-payment of the shortfall arrears for two years before Ms Okwara became AA’s income officer. AA proved subsequently that he could raise the necessary funds to pay off the totality of the arrears and the extent of the arrears was unsatisfactory but not excessive. It follows that Ms Okwara would have been pessimistic in her consideration of whether there were good prospects of evicting AA straight off.

It follows that both Mr Davis and Ms Okwara had an ulterior motive in seeking AA’s eviction. They had limited prospects of evicting him lawfully and they therefore appear to have embarked on an eviction with the intention of evicting AA even though this could not be done lawfully.

Non-compliance with the EP – eviction.
LBS’s EP was the expression by a public body of the policy it wished to adopt with regard to the way its evictions were carried out. AA and all other tenants had a legitimate expectation that that policy would be complied with. Any significant departure from that policy by LBS would therefore be unlawful. The many departures, particularly the absence of both AA’s income and resident officers, gave rise to a significantly unlawful eviction.

Failure to obtain a judge’s consent to an application for a warrant.
The judgment has already determined that the eviction was unlawful and an abuse of process in being undertaken pursuant to a warrant which had not been proceeded by a successful application to a judge for permission to issue it. The relevant possession order was more than six years old when the warrant was applied for and, as has already been demonstrated, a court is usually unwilling to authorise a warrant in such circumstances. The eviction was also an abuse of process.

Abuse of process in the eviction proceedings.
In addition to the abuse of process arising from the way that the warrant was issued without the prior permission of a judge, LBS also conducted its defence to AA’s applications in the district judge’s court on 22 April 2013 and the circuit judge’s court on 23 April 2013. Ms Okwara was conducting a DIY eviction on behalf of LBS and she had rights of audience for that purpose. That required her to assist the court, to provide the court with accurate and full information about the tenancy, the tenant and the breaches founding the application for possession and to make a full note of the judge’s reasons for his decision. In fact, she provided no detail or documents, failed to inform the judge about the strengths of AA’s case for a stay, was not prepared to enter into any dialogue with him about the arrears and had failed to comply with the EP. In short, the conduct of the proceedings associated with the application for a warrant was an abuse of process.

Unlawful eviction.
The eviction was unlawful in a number of different respects. The warrant was issued without first obtaining the permission of a judge. The eviction policy of LBS was infringed in a number of significant respects. The bailiff did not surrender possession to LBS but to a carpenter employed by an independent contractor who had no authority to sign the warrant. Finally, the tenant’s application to stay or suspend the warrant was defended in an abusive and unfair manner.

Interference with right to quiet enjoyment.
The eviction and the way that it was carried out gave rise to breaches of the tenancy agreement by LBS. These breaches gave rise to a gross interference with AA’s right to quiet enjoyment.

Non-compliance with EP – possessions.
The non-compliance with the EP with respect to AA’s possessions coupled with the removal and destruction of those possessions was unlawful.

Breaches of duty as income and resident officers.
The income and resident officers owed duties of fair dealing, candour and non-discriminatory conduct to LBS. In breach of those duties, Mr Davis, Ms Okwara and Ms Ashley failed to reveal to LBS that the eviction had been carried out in breach of the EP, that AA’s possessions were at risk of being destroyed and that their conduct had been unfair, lacking in candour and actually or potentially discriminatory.

Abuse of process – subsequent proceedings.
The five applications made by AA after he had been evicted were defended with similar abusive practices as the earlier proceedings had been. In particular, Ms Okwara and Ms Ashley played no part in them and failed to bring to the attention of the court or LBS’s legal representatives the details of their unlawful conduct. Subsequently, LBS attempted to conduct the proceedings as if all claims save for a limited Torts (Interference with Goods) claim had been excised from the proceedings when no such limitation had been imposed. This conduct flowed from the coercive and collusive conduct of LBS officers and was also an abuse of process.

Breaches of article 8.
LBS’s unlawful conduct in seeking and obtaining possession of the flat and in removing and destroying AA’s possessions was unlawful and failed to show due respect to AA’s private life. It was therefore unlawful.

(5) Conclusion – Conspiracy
It follows that the various officers of LBS conspired to evict AA by unlawful means, to seize and destroy his possessions by unlawful means and to cause him harm and loss by evicting him and dispossessing him of his possessions.

(6) Other causes of action

Misfeasance in public office.
Mr Davis, Ms Okwara and Ms Ashley exercised their powers as public officers in relation to a local authority secure tenancy for an improper motive. They each acted with the intention of harming AA be evicting him when there were no reasonable grounds for evicting him and by arranging for his possessions to be seized and destroyed unlawfully. Each is, in consequence liable for misfeasance in public office and LBS is vicariously liable for the commission of that tort.

Negligence.
LBS is, in respect of the destruction of AA’s possessions liable in negligence to AA. It was unreasonable and a breach of the duty of care owed to AA in respect of his possessions to allow them to be destroyed and to fail to act to prevent that occurring although it was known to its servants that the possessions were at risk of being destroyed yet nothing was done to prevent that occurring.

Breach of the covenant of quiet enjoyment.
LBS is liable in contract for acting in a way that has significantly breached AA’s entitlement to quiet enjoyment of his tenancy.

Article 8 of the HRA.
LBS has breached AA’s entitlement to respect for his private life.

TIGA.
The unlawful seizing and subsequent unlawful destruction of AA’s possessions was both negligent, a conversion of those goods and amounted to tortious conduct. It therefore gives rise to an entitlement to recover the loss that thereby resulted pursuant to the TIGA.

The matter was listed for a further quantum hearing, but Southwark settled with Mr AA in the interim.

Comment

This is a devastating, awful judgment. The behaviour of Southwark’s officers was appalling. The circumventing of policy and procedure appears to have been unconstrained and not picked up at all by Southwark until Mr AA pushed his case, or indeed at all.

As I’ll come on to, there is much else of concern besides. But before I go into that, I need to register a worry about the judgment.

The High Court makes very definite and very serious findings against some named Southwark officers. Those officers were not brought as witnesses by Southwark (perhaps unsurprisingly given the Matthew Report and apparently ongoing disciplinary actions). But this means that the Court makes findings on the actions and intentions of these individuals without them having the ability to give evidence and be cross-examined, or otherwise respond to the accusations. While the Matthews Report was before the court (though not us! If anyone has a copy…) this apparently only deals with the events leading up to and around the disposal of Mr AA’s belongings.

While the evidence recorded in the judgment seems strong on the after the event coverup, and on a conspiracy around the destruction of Mr AA’s belongings, and also on procedural failings deliberately entered  into, or at the very least unquestioned by anyone involved, around the actual eviction, I am less convinced that the evidence set out in the judgment supports a finding of conspiracy to evict (unlawfully). The evidence on that, mostly around the failure to apply for permission, could potentially well be cock up rather than conspiracy. However, the mysterious absence of documentary evidence from the tenancy file on that did not help.

Qualms about the full extent of the judgment aside, what can be taken from this?

First, I suppose, is that the usual response to a tenant saying ‘my housing officer is out to get me’ from the tenant’s advisor – being ‘they treat everyone this badly, it isn’t a conspiracy’ – may actually have to be considered on each case. Because just perhaps it is a conspiracy. (I’ll stick with my view that usually it isn’t, it is rather just a standard level of rude incompetence, but that cannot be a default response any longer).

Second, housing officers’ documentary evidence needs to be up front and provided in full in possession and eviction proceedings. If it isn’t, that needs to be challenged – maybe an adjournment for disclosure. And exactly what that disclosure should extend to is clearly an issue. From Southwark’s limited disclosure in this case, just asking for ‘the tenancy file’ is not enough.

Third. The County Courts need to be alive to the issue of the date of possession order, and court admin staff should be appropriately trained. Administrative issue of warrants is only an administrative matter if the underlying possession order was made inside a 6 year period.

Fourth. Disclosure, again. Once this matter had got into the hands of Southwark Legal, it appears that they were stonewalled by their clients on relevant documents and information. It also appears that they failed to disclose material which was  to hand and relevant and even, in the case of the Matthews report, referenced in their pleadings.

Even after the High Court judge had weighed in and demanded disclosure during the trial, the disclosure was at best partial, with EDMS records not disclosed.  I’m sorry to have to say that the obvious conclusion is that the extent of Southwark’s disclosure in any given matter has now to be doubtful, because this case demonstrated an inability to adhere to the basic rules of disclosure.

It is no answer for Southwark to say this case was against a litigant in person, or that they decided a document that they had referenced in pleadings turned out to be sensitive, or that they had misjudged the extent of the claim against them.

Fifth. Disclosure again. Documents are ‘missing’. As with the ‘missing’ tenancy file after November 2010 here. Disclosure requires a full statement of relevant documents that were under the party’s control but no longer are, and the reason why they are no longer available . ‘Missing’ by itself is not an answer and should not be taken as such. 3 years of missing tenancy file invites conclusions, as in this case.

And there is another lesson, perhaps a humbling one for those of us who act for tenants. Mr AA appears to have been content to act for himself, though had representation in one of his possession hearings. But what would we have heard if he had called as new client enquiry? What case would we have assumed? Unlawful eviction, perhaps. Destruction of belongings certainly. But beyond that?  I think it is doubtful, though that may just be my confession.