Eviction and High Court Enforcement

A couple of recent cases have highlighted the issues involved in transferring County Court possession orders to the High Court for enforcement by High Court Enforcement Officers.

This is done by landlords, by and large, to bypass the wait for a county court bailiff appointment, but also has the effect (not unwelcomed by some landlords, including perhaps Birmingham City Council) of enabling eviction without the tenant being provided with notice of date of eviction.

But, where the possession order is against a tenant, rather than against trespassers, there are some very particular steps that have to happen.

First, once a possession order has been granted in the County Court, the claimant must apply to the County Court for an order transferring the proceedings to the High Court for the purposes of enforcement (Section 42(2) County Courts Act 1984). This can be an application without notice.

However, before any High Court enforcement (at least against tenants) a High Court writ must be issued, CPR 83.13. And the issue of such a writ requires the permission of the High Court, CPR 83.13(2).

Enter Nicholas v Secretary of State for Defence, High Court, Chancery Division, August 24, 2015 (no transcript apparently available. Arden Chambers note here). The MoD, having got a possession order after extended proceedings up to and including the Court of Appeal, obtained a High Court writ of possession without notice to Ms N and this was then enforced. The first Ms N knew was when she woke up to find the High Court Enforcers at her door, changing the locks.

Ms N applied to set aside the writ. This was successful on the basis of CPR 83.13(8)(a):

(8) Permission referred to in paragraph (2) will not be granted unless it is shown—

(a) that every person in actual possession of the whole or any part of the land (‘the occupant’) has received such notice of the proceedings as appears to the court sufficient to enable the occupant to apply to the court for any relief to which the occupant may be entitled; and

(b) (…)

So permission under CPR 83.13(2) should not have been granted.

And exactly the same issue arose in Birmingham City Council v Mondhlani County Court at Birmingham 30 October 2015 (now on Bailli as Birmingham City Council v Mondhlani [2015] EW Misc B41 (CC) (06 November 2015)). This is (the case referenced here).  Birmingham had been obtaining permission to enforce in the High Court by without notice applications to the County Court (as they can). But Birmingham then outsourced the obtaining of a writ to an external High Court Enforcement agent and their external solicitors.

These external firms then applied for a writ using form N293A and writ form 66. The N293A has at the bottom the words “This judgment or order has been sent to the High Court for enforcement by (Writ of Possession against trespassers) only”. Permission of the High Court is not required for the issue of a Writ against trespassers (CPR 83.13(3)). But of course, even after a possession order, a secure tenant (or an assured, or assured shorthold tenant) is not a trespasser. Form N293A should not have been used.

It seems that the High Court office, in reliance on the N293A, had simply been issuing Writs. This should not have happened, because permission from a Judge was required – 83.13(2) – and the judge must be satisfied that notice has been given to the occupant(s) in actual possession  – 83.13(8).

So, this is one to keep an eye open for. Enforcement of a possession order by the High Court Enforcement Officers via a writ of possession must involve notice of an application for a writ to the tenant/occupant sufficient to enable the occupant to apply to the court for relief, save only where the enforcement is against trespassers. If that did not happen, there is a very strong argument that the eviction was unlawful.

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 Shorthold tenancy, assured-tenancy, Housing law - All, Possession, secure-tenancy, Unlawful eviction and harassment and tagged , , .

26 Comments

  1. Pingback: Eviction and High Court Enforcement – Nearly Legal | Current Awareness

  2. In Mondhlani, the District Judge took a view that the application to transfer up had to be by way of an application notice. This makes sense if the court was to have evidence before it as to why the discretion should be excercised. He also took a view that the application must be served on the other side because that’s, well, natural justice.
    Birmingham had been simply asking their court officers to ask for it at the end of the initial hearing. There was no real evidence being given as to why the court should excercise its discretion having regard to part 30.

    Where the court had excercised its discretion in those circumstances, often in the tenants’ absence (anectodally, Birmingham stopped asking when there was a duty advisor present) that order transferring proceedings to the high court for enforcement purposes is appealable.

    From my experience of private landlord cases both on this side, and the other, the relief was occasionally sought in the particulars of claim. This was better than nothing. But never have I encountered a case where evidence was given as to why the court should excercise the discretion.

    The key point to take away I think from this case is that when the claimant seeks permission to transfer up to the high court for enforcement purposes- the necessity for an application on notice to the other side for the issue of the writ, taken together with how long it takes for the office to process the application and list for a hearing- it might not be very much quicker.

  3. Pingback: Landlord Law Blog Roundup from 9 November - The Landlord Law Blog

  4. Pingback: New nightmares for landlords using High Court Sheriffs to evict tenants - The Landlord Law Blog

  5. Hello Giles, are you able to advise what notice the Court would deem ‘sufficient’ under 81.13(8)(a) please?

    • I don’t know of any cases on it. But clearly has to be adequate “to enable the occupant to apply to the court for any relief to which the occupant may be entitled”.

  6. Pingback: Current Awareness from the Inner Temple Library - Daily Digest

  7. Hello Giles

    I have tried to apply Nicholas in a PRS (AST) case. As an Adviser, I tried to get the matter heard in the County Court. However, the main problem is that the application has to be made to the High Court and there is the issue of funding. Solicitors are not to take on such cases and are unwilling to apply for legal aid as would the application may not pass the `sufficient benefit test ‘. If there are not well-published test cases, the issue of families being thrown out on the street without warning will continue.

    Thanks

    • Thank you so much for your comments, Giles. Yes, an outright illegal eviction would have been nice. However, my argument would have been in my case, that it was unlawful eviction as notice was not served on any of the tenants, under 83.13(8)(a):
      “that every person in actual possession of the whole or any part of the land (‘the occupant’) has received such notice of the proceedings as appears to the court sufficient to enable the occupant to apply to the court for any relief to which the occupant may be entitled”. However, since the case was not heard in the County Court, and as we could not find any Solicitor to take it on due to funding issues, it is not known what the outcome would have been.
      Thanks for answering to the comment.

  8. If the procedure is not followed and the eviction deemed unlawful, could the HCEO himself be on the hook?

    s.1 of the PFEA 1977 says that the offence is committed by “any person unlawfully depriving the residential occupier of any premises of his occupation”.

  9. Pingback: Lime Legal

  10. Pingback: How And When To Use High Court Enforcement | GRL Landlord Association

  11. BCC v MR C AND MRS S MONDHLANI [2015] EW Misc B41 (CC)
    39. If I grant permission to bring a counterclaim it does not stop Birmingham City Council continuing to seek to enforce their possession order and money judgment. No issue of set off arises in circumstances such as these, as a set off has to be pleaded in a defence to a claim for rent arrears. This is of course no longer possible, there having been judgment in favour of Birmingham City Council (see CPR 16.6 and the discussion paragraphs 11 to 16 of His Honour Judge Grant’s judgment in Mitchell).

    is the DJ correct re the setoff requiring it to be in a defence.?

    This might be the case if the disrepair related to LL breaches prior to the PO. .

    If the breaches used by the tenant relate to the period post the PO surely it would not?

    The argument would be that either the order has not been breached by reason of damages lawfully deducted from the rent at common law if liquidated and in equity either if liquidated or if unliquidated. alternatively that they had breached the order by a lesser amount on account of the same, alternatively had not breached at certain times for those reasons and had paid towards remedying the breeches at other .

    Equity intervened with common law proceedings after judgment as well as B4 judgment, .

    What do people think?

  12. So is the Channel 5 ‘Can’t pay, we’ll take it away’ series misleading. They show numerous families who are being evicted by a High Court Writ and expressly state that the tenant did not receive any notice?? Why are they continuing to show this on public TV?

    • There is no requirement to give notice of the date of eviction, just that a high court writ is to be applied for.

      However, the firm of HCEOs in that series do appear to have been using form N293A in tenant cases, for the reasons set out above that is wrong and I’d say an abuse of process. Which would mean the televised evictions of tenants were founded on an abuse of process, if true, and arguably unlawful.

  13. Pingback: If it Sounds Too Good to be True – Enforcing Possession Orders | Coventry View

  14. Hi Giles,

    Thank you so much for writing about this… I have a blog myself where I write about some legal topics in Portuguese for the Portuguese speaking community living in England. I just recently wrote a post about the process of eviction for private tenants with an assured shorthold tenancy, and what steps the landlord should take in order to make the eviction, in such cases, legal. Then I had someone commenting about HCEO and how they didn’t have to give notice etc… After looking around, and reading several articles, yours made so much sense and really helped me a lot! So thank you again… I am definitely following your blog from now on.

  15. Brilliant post. Always thought preventing high court bailiffs was impossible in law. This gives me hope. Still, it’s a bit tricky, when you’re being locked out of your home, to get a court to deal with you claim against what is technically (based on your post) an illegal eviction. Thanks for posting about this.

  16. Pingback: Are we facing an evictions crisis? | Shelter blog

Leave a Reply (We can't offer advice on individual issues)

This site uses Akismet to reduce spam. Learn how your comment data is processed.