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:
- N293A is not to be used against tenants (and never was, because wrong)
- Application for permission for a writ must be made and requires approval by the High Court (a Judge, not the court office/District Registry).
- 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.
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.