Protocol Problems

Now that the new pre-action protocols are sort of available, and have been in force since 6 April 2015 even when they were not available, people are having a look at them. And coming up with some issues.

The new Pre-action Protocol for Possession Claims by Social Landlords, (at page 108 on in this PDF, which is all we have for now), has caused head scratching. Parts 1.1 to 1.3, on the scope and application of the Protocol read as follows:

1.1. This Protocol applies to residential possession claims by social landlords (such as local authorities, Registered Social Landlords and Housing Action Trusts) and private registered providers of social housing. Part 2 relates to claims which are based solely on claims for rent arrears. Part 3 relates to claims where the Court’s discretion to postpone possession is limited by s89(1) Housing Act 1980. The protocol does not apply to claims in respect of long leases or to claims for possession where there is no security of tenure.

1.2. Part 3 of the protocol does not apply to cases brought by social landlords solely on grounds where if the case is proved, there is a restriction on the Court’s discretion on making an order for possession and/or to which s89 Housing Act 1980 applies.

Part 2 is straightforward enough, being by and large the old rent arrears protocol. But then at Part 3, under 3,1, is this.

3.1 This part applies in cases where if a social landlord proves its case, there is a restriction on the Court’s discretion on making an order for possession and/or to which s. 89 Housing Act 1980 applies (e.g. non-secure tenancies, unlawful occupiers, succession claims, and severing of joint tenancies).

So what kinds of claim does Part 3 apply to?

1.1 seems to be straightforward about it – Part 3 covers claims where the Court’s discretion to postpone possession is limited by s.89(1) Housing Act 1980. This would cover any ‘mandatory’ possession order, including those in Schedule 2 Housing Act 1988, and indeed a claim via section 21. But it would seem to exclude ‘Notice to Quit’ cases, where there was no security of tenure, or security had been lost, as “The protocol does not apply to claims in respect of long leases or to claims for possession where there is no security of tenure”.

But then 1.2 says Part 3 does not apply where the case is brought “solely on grounds where if the case is proved, there is a restriction on the Court’s discretion on making an order for possession and/or to which s.89 Housing Act 1980 applies”.

So if a claim is brought solely on Ground 8 Housing Act 1988, (or indeed, s.21, or introductory or demoted tenancy claims) Part 3 would not apply?

But if it was a rent arrears claim brought on grounds 8, 10 and 11, Part 3 would apply, as the s.89(1) HA 1980 limit would apply if the court made a mandatory order under the ground 8 claim, but the claim is not solely on that ground?

What is more, 1.2 seems to be in direct contradiction to 3.1, which gives as examples of where Part 3 applies exactly the kind of case where the claim is brought solely on grounds that if proved would result in the s.89(1) limit on discretion applying – non-secure tenancies, unlawful occupiers, unsuccessful successions, and ‘severing of joint tenancies’ (which I take to mean NTQ by one joint tenant and possession claim against the remaining occupier).

Except that the kinds of cases listed as examples in 3.1 all seem to be cases where “there is no security of tenure” (or at least allegedly no security) and based on Notices to Quit. And 1.1 says the protocol does not apply “to claims for possession where there is no security of tenure”.

Am I missing an obvious interpretation? I did rather wonder if 1.2 actually meant to refer to Part 2, not Part 3, which would sort of make sense But then then would exclude possession claims based solely on ground 8 HA 1988 from the rent arrears pre action protocol in part 2. And it still wouldn’t solve the ‘no security of tenure’ issue between 1.1 and 3.1.

My head hurts.

About Giles Peaker

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, and still is Nearly Legal on Google +.
Posted in assured-tenancy, Housing law - All, Possession, secure-tenancy and tagged .

13 Comments

  1. I think it is meant to apply to any claim where an Art.8 defence might apply. There was an article by someone who suggested that one way of making it easier to dispose of Art.8 claims summarily is if the pre-action protocol was amended so that the court would know of the occupiers personal circumstances before a defence needed to be filed.

    The problem with the protocol is that Part 3 lacks any teeth. Even if the landlord fails to comply with it the court can’t adjourn or order costs like for Part 2.

    It has obviously been watered down like the mortgage pre-action protocol.

  2. This is the quote from the relevant article:

    “Whatever the answers to these questions may be, county courts are going to have to consider defences in possession claims against occupants without security of tenure, based not only on traditional Wednesbury grounds but also on allegations that decisions to evict made by local authorities and RSLs26 were unreasonable, having regard to the aims which they were pursuing. That is clear, both from Doherty and Collins. As H.H. Judge Gilbart said in Collins, while a judge “must eschew simply substituting his own judgment for that of a local authority, [the court] must grapple with whether it had material before it, and whether the decision was reasonable”.27

    If this is done in an unregulated way, it potentially raises a nightmare scenario for local authorities and RSLs, courts and occupants. It may be that, as the ECtHR said in McCann, it will “be only in very exceptional cases that occupiers would succeed in raising an arguable case which would require a court to examine the issue”, but hardpressed local authorities and RSLs do not have the resources, either financial or legal, to engage routinely in such litigation. Such cases would play havoc with possession lists in county courts. Given the decreasing numbers of solicitors with housing *J.H.L. 47 contracts, occupants are going to find it hard to get legal representation to run such defences.

    Good local authorities and RSLs already consider both the proportionality of any decision to evict and the personal circumstances of occupants before deciding to bring possession claims. Where proper, fair consideration is given, as in Dixon, it is highly unlikely that any public law defence, whether based on Wednesbury unreasonableness, a wider Doherty unreasonableness, or even (having regard to McCann, Stanková and Ćosić ) art.8 disproportionality, would succeed.

    What is needed is not only that all local authority landlords and RSLs give early consideration to such issues, but also that occupants can raise such matters prior to issue of proceedings and that courts can see in a simple and straight-forward way what the position is. This could be achieved, without primary legislation, by adding a second part to (and renaming) the existing Pre-Action Protocol on Possession Claims to provide that before issuing any possession claim:

    • public bodies should write to occupants explaining why they currently intend to seek possession and requiring the occupants within a specified time (say 14 days) to notify the landlord in writing of any personal circumstances or other matters which they wish to be taken into account. In many cases such a letter could accompany any notice to quit and so would not necessarily delay the issue of proceedings;

    • public bodies should consider any representations received, and, if they decide to proceed with a claim for possession, give brief written reasons for doing so; and

    • claimants should attach a copy of their initial letter, any response from the occupant and the reasons for proceeding with the eviction to the claim form.

    Local authorities and RSLs may complain that such a protocol would increase their workload, but arguably such a procedure would reduce it in the long run and be preferable to an unregulated freefor-all in the county court. It would also, when combined with the ability to raise such matters as a defence in the county court, mean that “the requisite procedural safeguards” required by Strasbourg were in place. Further, provided that courts exercised their powers sufficiently widely, it is arguable that the ECtHR would, in the future, find that the English and Welsh procedure complied with art.8.

    This proposal was discussed at the Civil Justice Council Housing and Land Committee on February 11, 2009. The Committee unanimously agreed the proposal and referred it to the Civil Justice Council committee which is reviewing all Pre-Action Protocols for further consideration.”

    Article 8 – la lutta continua?; Nic Madge.; J.H.L. 2009, 12(3), 43-47

  3. Agreed GP – it does appear to be a mess. The Pre-Action Protocol at 1.1 states it does not apply to those tenancies without security of tenure and then, as you have mentioned, Part 3 seems to imply that where a claim is brought on mandatory grounds, that part of the protocol does apply. The complication seems to be that the revised protocol provides examples of where it does and does not apply. However, the examples cited are in direct contradiction of one another.

    As the earlier posts have stated, Part 3 appears to have been included to make it easier for the Courts to establish the personal circumstances of a Defendant.

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  6. Did you ever get to the bottom of this contradiction? I haven’t, which is a bit worrying. There is such an obvious contradiction between Para.1.2 and Para.3.1? The only difference between these two completely incompatible sentences seems to my poor brain to be the word “solely” in the earlier para, which seems neither here nor there. My own conclusion, which I imagine will carry little weight in any court, is that the word “not” – or perhaps the entire paragraph – shouldn’t be there at all. Does anyone else agree. My own head-scratching is compounded by the White Book 2016 mislabelling the Protocol, and continuing to do so on Westlaw. That was well worth the £500+ annual subscription then, Sweet & Max.

  7. Does anyone know of any example where a court has sought to apply the protocol in a possession case against someone who has been left in occupation (eg. a failed successor).

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