Righting wrong writs. High Court enforcement.

This has been a bit of an epic. First, the problem of High Court Enforcement Officers using form N293A to obtain writs of possession against tenants was raised by us in November 2015, then the scale of that use became clear by January 2016, and there were updates in February. Now, the coup de grace (which, if I am entirely honest, I’ve known was coming for a while).

Senior Master Fontaine of the High Court, Queens Bench Division, has issued a practice note. The practice note is here, but what it says is:

I have received complaints that some High Court Enforcement Officers (“HCEOs”) have been using Form N293A to transfer County Court Possession Orders against tenants for enforcement to the High Court. This procedure is wrong because:

The Form is intended for enforcement of possession orders against trespassers only (as stated in the notes at the bottom of the form; and
CPR 83.13(2) requires the permission of the High Court before a High Court Writ of Possession can be issued; and
CPR 83.13(8) (a) requires sufficient notice to be given to all occupants of the premises to enable them to apply to the court for any relief to which they may be entitled.
There have also been recent decisions where the misuse of Form N293A has been identified, e.g. Birmingham City Council v Mondhlani [2015] EW Misc (CC) (6 Nov. 2015); and lack of notice required under CPR 83.13(8) e.g. Nicholas v Secretary of State for Defence [2015] EWHC 4064 (Ch) (24 August 2015) Rose J. (unrep.).

In order to ensure that this practice does not continue:

The Queen’s Bench Division Enforcement Section will not accept Form N293A for transfer to the High Court for enforcement of a possession order of the County Court other than for possession orders against trespassers. By distributing a copy of this note to Designated Civil Judges in District Registries I shall request that the same instructions be given to court staff in District Registries.

The Queen’s Bench Masters will not accept applications under Section 41 of the County Court Act 1984 for transfer of a County Court possession claim for enforcement and such applications must be made under Section 42 of the County Court Act 1984 to a judge of the hearing centre of the County Court where the possession order was made, so that judge can satisfy themselves that the appropriate notice has been given under CPR 83.13(8).

The Civil Procedure Rule Committee (“CPRC”) subcommittee on court forms has:

re-drafted Form N293A with greater emphasis on the restriction of the use of the form to requests for writs of control and writs of possession against trespassers only; and

drafted a new form of draft order (PF52) giving permission to enforce a judgment or order for giving possession of land in the County Court (other than a claim against trespassers under Part 55), which make it clear that applications for such permission must provide evidence to satisfy the judge determining such application that the requirements of Rule 83.13(8) are met.

It is anticipated that these will be available for use in April 2016.

The Senior Master
21 March 2016

Now this is, of course, exactly what we were saying the law and the Civil Procedure Rules actually meant.

The three key points:

  1. N293A is not to be used against tenants (and never was, because wrong)
  2. Application for permission for a writ must be made and requires approval by the High Court (a Judge, not the court office/District Registry).
  3. The application must include evidence that the occupiers are on sufficient notice of the application as to comply with CPR 83.13(8).

It is fair to say I got a certain amount of grief from some HCEO firms for publicly raising this issue. I am going to resist the temptation to be triumphalist. But I was publicly told by one firm that I was ‘misinformed’, and that N293A was ‘perfectly legal’ in such circumstances.

David Carter of Sheriffs Office on N293A

The Sheriffs Office – and David Carter – have seen the practice note and posted on it here. I suspect it is the closest I’ll get to an apology.

They get the odd thing wrong still. This does not concern mortgagees, for instance, against whom the court’s permission is not required.  And they do not address the need for the Court’s permission, or notice to the occupiers of an application for a writ. The new form pF92 is not a form for application for a writ, it is a form of draft order for permission for a writ. Still, they do at least admit using N293A against tenants ‘was not what it was intended for’. Well, yes it wasn’t, but then the admission is in these terms:

“Whilst this established procedure had been used for many years and was accepted by Judges and the Courts alike, it was not what form N239A was intended for.”

No, it was not an ‘established procedure’. It was just what went on until it was found out.

No, it was not ‘accepted by Judges and the Courts’ – after all, the whole point of an N293A was that it was approved as an administrative act by the court office and never actually went in front of a Judge or the Court. And, as was pretty well known, a Judge wrote in January 2014, describing the use of N293A against tenants as ‘apparent contempt of court’. Now a High Court senior master has described the practice as ‘wrong’ – not mistaken, just wrong.

My understanding is that the guidance should have been circulated to all members of the High Court Enforcement Officers Association, so any HCEO trying the N293A route from here on in is not just wrong in law, they are knowingly breaching a specific practice direction of the Queens Bench Senior Master. And the requirements on the court’s permission and notice to the occupiers of the application are clear.

By the way, the recording of Nicholas v Secretary of State for Defence, High Court, Chancery Division, August 24, 2015 (our note) has been discovered, after so many people have requested it for so long. I’ve seen a transcript and hopefully it will be on Bailii soon.

Much credit is due to Amy Just of Arden Chambers for raising and persisting with this issue. But I’m also claiming it as a victory for NL, both in publicising it and taking it up with the senior master.

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, Housing law - All, Possession and tagged , .

24 Comments

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  2. Well done Giles – you have been vindicated!

    But it is bad news for landlords who often have to wait many months to recover possession of their property from non-paying tenants. Meaning that they are effectively housing them for free.

    This is an injustice which should be addressed.

  3. Congrats also to Ranjit Bains who picked up the issue at CLP and acted for Mr Mondhlani – and to James Stark, Alex Offer and Joseph Markus from Garden Court North who each represented him at various hearings before DJ Salmon.

    • Mr Bains is a truly brilliant legal mind and is a terrific person, to boot. I anticipate we’ll hear a lot more about him in the future.

  4. Actually it was accepted by the judges and county courts. Not only was I advised by the courts to use one, but when I didn’t after reading about this, my recent application to transfer the County Court Possession Order against the tenant for enforcement to the High Court was rejected by the County Court JUDGE because I did NOT use an N293A!! This was specifically stated. The use of the N293A was far more established than the system would care to admit.

    Tessa is right, we now need to urgently resolve the issue of eviction taking months through the county courts.

    • Why was a county court judge ruling on your application for a writ? An application to transfer under s.42, yes, that is the province of a county court Judge, but not the application for a writ. That is a matter for the High Court and District Registries.

      And yes, agreed that the process needs dealing with.

    • It was a District Judge sitting at the County Court. The Judgement of Order states “It is ordered that the application is refused for the following reasons:

      1) an N293A is required
      2) the information as to the waiting time is for a bailiffs appointment inaccurate: Claimant should apply for a bailiffs appointment in the usual way.

      I have to say I was extremely annoyed…

      One – the judge should know better than to say an N293A is required when I have made an application to transfer under SECTION 42 as clearly stated

      Two – the information I quoted regarding the waiting time for a bailiff appointment was given to me by the courts

      And though this is unrelated, the judge made the decision in less than 2 weeks, but the judgement was sent to me 3 weeks later, a whole 5 weeks after I made the application (defeating the purpose of using High Court Enforcement). I couldn’t help but feel the whole thing was a farce against a landlord.

    • Oh, well at least on 1) the DJ was just flat out wrong, both on the requirement and on their ability to make such an order. 2) ? Well… DJs, what can you say? ;-)

  5. Given that the crux of the matter is that there should be judicial authority
    in the oversight as a pose to rubber stamping – would this have any natural justice or fair trial implications to those enforcements that have already been done and dusted, where for example, but for the rubber stamping, judicial authority would have been denied?.

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  7. Now that this ‘scandal’ has been settled, hopefully energies will focus on the actual scandal:

    The possession enforcement procedure is too long with too much red tape.

    As I wrote many times before, possession orders should be enforced without further notice within days of the ordered date.

    • He’s right. Two months notice plus the month or so taken to get a court order and the two weeks after that (you’re looking at at least 3-4 months) is more than enough time for a tenant to leave and find alternative accommodation (with the help of Council if need be). Why do we need to waste further months and hundreds if not thousands of pounds in lost rent and potential damages and applying for bailiffs when the court has already ordered the tenant to leave by a fixed date. Other countries do not require this as it is unecessary. It’s things like this that make our legal system lose credibility.

    • We have these rules because, sadly, landlords cannot be trusted. Yes, I’m sure you’re one of the excellent ones who would never do anything wrong, but the overwhelming evidence of the 20th century is that landlords need to be controlled. It didn’t used to be this way; prior to the mid 1960s, landlords had something close to the freedom you suggest. But they abused it. Repeatedly. Hence Parliament stopped them.

      Now, I entirely agree that there should be a properly funded court system, including prompt enforcement of decisions. But that requires money and I don’t see landlords (or, indeed, any other class of court user) advocating higher taxes or fees.

    • Mutatis mutandis what happens to the landlords who ignore orders from court to carry out repairs, pay damages, allow re-entry after an unlawful eviction, deliver up tenants’ possessions? Straight to Marshalsea?

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  9. What is notable also about this longstanding abuse of process is the fact that it really only was discovered when two public sector landlords jumped on the bandwagon . The practice of using an N293A was not the only abuse but applying for transfer at possession hearings without notice and without any consideration being given by district judges to CPR part 30 or the circumstances if the case was also plainly wrong as was the practice adopted of applying for a writ in another district registry from that where the possession order was made . All these we discovered in Mondhlani and a string of other cases brought by Birmingham.

  10. Congratulations. This is an impressive achievement, and I hope you and all involved get the thanks you deserve for ending what seems an abuse of process used by those with resources against those lacking them. Very valuable work that will make a difference to many people’s lives.

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  12. Great work Giles.

    In respect of some posts on here re. rent arrears – it’s is a separate issue and should be dealt with as a debt recovery not lumped in with eviction as an excuse to evict tenants quickly using the high court to bypass humane legal process.

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