Since our previous post on this topic, it has become apparent that there are significant and widespread issues with evictions of tenants by High Court writ, specifically by some High Court Enforcement Officer firms.
In our last post, we dealt with the issue of an application for a High Court writ being made in tenant possession cases by way of form N293A. To recap, this is the form which expressly states “This judgment or order has been sent to the High Court for enforcement by (Writ of Possession against trespassers) only”.
The significance of this form is that a writ of possession against trespassers does not require the permission of a High Court Judge, or indeed notice to the occupiers of proceedings (in the High Court) under CPR 83.13(8)(a). The High Court office issues such writs as an administrative act, without having to go before a judge. In effect, they are rubber stamped.
But this is valid as against trespassers. Not, categorically not, against tenants after a possession order. Form N293A must absolutely not be used for a writ against tenants.
However, I have seen clear evidence that at least three of the larger HCEO firms dealing with tenant evictions have used form N293A to apply for writs of possession against tenants (and/or told landlords to use that form/provided them with that form to sign) and done so routinely for years. This includes at least one (and probably more) of the HCEO firms that have taken part in television programmes, carrying out tenant evictions.
Here is an example from August 2014 from an HCEO website (full screenshots of this and other pages have been taken in case they vanish).
There are quite a few HCEO firms that state that they can obtain a writ ‘within 24 hours’ or ‘in one day’. Given the unlikelihood of obtaining permission for a writ from a High Court Judge within a day, let alone via a District Registry, one can only suspect the use of N293A in these cases too.
There is no legitimate reason for this to have happened. The position on the use of N293A has been clear for years. Here, for example is District Judge Backhouse writing in the Gazette on the topic in January 2014.
As DJ Backhouse notes, wrongly certifying to the High Court that the writ is against trespassers – by use of the N293A – may well be a contempt of court. It is certainly an abuse of process.
A writ obtained by abuse of process could probably be set aside, even after execution (and very likely where the abuse of process enabled the writ to be obtained and eviction executed without notice to the defendant tenant).
In addition (or alternatively, if setting aside the warrant would cause a concurrent tenancy in the situation of a re-let property), there would be a potential unlawful eviction claim by the tenant, against the landlord.
Where I have seen evidence of their use of form N293A for tenant evictions, I have asked HCEO firms for their response. But I have not received any reply at all.
There we are. There is a high likelihood that at least some of those tenant evictions you saw High Court Enforcement Officers carry out on TV programmes were obtained through an abuse of process, and many, many more that weren’t on TV.
So what needs to happen now?
- HCEO firms need to come clean about whether or not they have used N293A to apply for writs for tenant eviction since 5 April 2014. And whether they continue to do so.
- HCEO firms need to stop use of N293A for tenant evictions immediately, if they have been doing so, and comply with CPR 83.13(8)(a) – taking note of Nicholas v Secretary of State for Defence, High Court, Chancery Division, August 24, 2015 (link to our note)
- HMCTS should ensure that High Court offices and District Registries in particular are alert to these issues with use of N293A and the offices should check whether the County Court possession order was against tenants on receiving an N293A.
- Landlords should be aware that if they use an HCEO that gets them to use form N293A they are potentially at risk of the writ being set aside and/or a claim for unlawful eviction, against them personally, putting them at risk of having to pay significant damages and costs, as well as potentially having to let the tenant back into the property.
- Landlords should be very sceptical of any claim to obtain a writ within ‘a day’ or ’24 hours’, as this is unlikely to involve permission being given by a High Court Judge, particularly if the HCEO says it will be using a regional court or District Registry.
- Tenants and their advisors need to be aware of their rights and of the potential to set aside a writ obtained by abuse of process and/or potential unlawful eviction.
This needs to be dealt with. It appears to be a large scale and widespread abuse.
(Update 14 Jan 2016 – I wrote to the High Court Enforcement Officers Association about this issue. They confirmed that “a number of our members are issuing and enforcing Writs of Possession in the manner you describe” (via N293A) and that the HCEOA had sought guidance on the issue from Senior Master Fontaine – High Court QBD. I have also written to Senior Master Fontaine setting out the issues and concerns. Further updates as and when. I have not yet received any coherent counter argument and I suspect the ‘debunking’ article that was promised by the head of Sheriffs Office will not be forthcoming in the immediate future.)
(Update 16 January 2016.
Well, I have had a response from HCEO David Carter of Sheriffs Office here. Here is what he said.
15/01/2016 at 15:23
Reply to the comment left by “Nearly Legal” at “07/01/2016 – 11:58“:
Firstly, apologies for my delayed reply. This has been due to being struck down by the dreaded post-Christmas man flu and being out of the office for the last two days.
Anyway, cutting to the main point you raised, our opinion is that using form N293A to obtain the writ of possession is not an abuse of process.
The practice of using form N293A (the only option currently available) was adopted by HCEOs in accordance with the provisions to transfer matters from the County Court to the High Court (for enforcement) under section 42 of the County Courts Act 1984. This practice has been endorsed, without demur, by the Courts for over a decade.
We would therefore argue that the transfer of an order for possession in relation to residential eviction of tenants is legal and common.
We are also advised that in order to have the situation fully clarified, the High Court Enforcement Officers Association have already sought guidance from the Senior Master of the High Court and we understand a response is due shortly.
Personally, I firmly believe that the current methods used by The Sheriffs Office and many other HCEOs are not an abuse of process or illegal and are correct and lawful at this time.
However, we eagerly await the Senior Master’s guidance and will of course be able comment further once that is received.
In terms of HCEOs being able to offer writs ‘within a one day’ or a guaranteed 7 day eviction we wholeheartedly agree with your concerns.
We have written articles ourselves on these new and inexperienced HCEO companies that appeared to be bypassing the requirement of leave under Section 42 of the County Court Act 1984 to transfer a County Court order to the High Court for enforcement.
This in itself left landlords and the actual HCEO (who I believe wasn’t actively working within the business) open to potential cases for damages from their former tenants as these evictions would have been enforced illegally.
Kind regards, David
So, as far as I can see, this amounts to:
i) There isn’t any form to apply for a writ except an N293A. The obvious problem here is that N293A is for a writ of possession or control. It would not do for a writ of delivery or restitution, so ‘there is only one form to apply for a writ’ is clearly nonsense. And no other form? A standard N244 would do for an application, I think, not least because what is being applied or is the court’ s permission for a warrant under CR 83.13.(2).
ii) Nobody has challenged this for 10 years. Well, as the only people who could are the evicted tenants – who aren’t exactly given a clue – this is not surprising. It is particularly not surprising when use of N293A means that the applications never go in front of a Judge, because issue of a writ as against ‘trespassers’ is an administrative act by the court office. But we have seen successful High Court challenges to writs issued by way of N293A have indeed taken place. So, any respectable HCEO should at the least be pausing and considering.
iii) Transfer up via section 42 is valid. Well yes. There is no dispute that a ‘transfer up’ via an application in the county court under section 42 is a valid process. There is no issue with the MoJ guidance on that process that I know of. But this is completely separate from a subsequent application to the High Court for a writ. The guidance and s.42 say nothing about use of form N293A, let alone permitting or requiring it.
More on the guidance when we get it.)