Oppression and the rent arrears protocol

Home Group Limited v Jacqueline Emery & anor, Edmonton County Court 08/08/16 (County Court decision unreported elsewhere).

This is a county court case, so not binding, but involves an interesting issue on what might amount to oppression in obtaining a possession order via the rent arrears section of the pre action protocol for possession by social landlords.

Mrs E and her husband were joint assured tenants of HomeGroup Ltd. A possession claim was brought on grounds of rent arrears, grounds 11 and 12. It appears that Mrs E’s health conditions, including heart disease, spinal problems and osteoarthritis, were a reason for a transfer to the property.

The possession proceedings had apparently been responded to and attended, across 5 hearings, solely by Mrs E’s husband. Eventually, in May 2016, a possession order was made, on arrears of £6,859.12.

Once bailiffs attended the property on 2 August, Mrs E immediately applied to set aside the possession order.

Mrs E’s case was that the attendance of the bailiffs was the first she had known about the proceedings and that and no stage pre-issue had the claimant contacted her individually.

The Defendant’s husband was characterised as a rogue figure. He had been in and out of prison for fraud, had intercepted post relevant to the client’s tenancy and Court proceedings, and unbeknown to the client had attended Court and made outlandish offers to clear the arrears. An example of this can be seen from entries in the rent account schedule where it appears a payment of £8,000 was made to the Claimant only for it be bounce within a matter of days.

The Claimant argued that the Defendants’ are joint tenants and that they had followed a valid process right up to eviction and even if the client was not aware of this, providing the necessary court papers were sent to the premises in the name of the parties the current eviction should stand.

The court has a power to stay suspend, set aside possession orders. This is extinguished when a warrant has been executed apart from evidence of the following:

1) Oppression
2) Fraud
3) The possession order itself is set aside.

Mrs E argued that oppression in this case arose because the Claimant had failed to comply with the CPR pre-action protocols for possession by social landlords – Paragraph 2.1 expressly states that where contact [with the parties] is by letter “the Landlord should write to the parties separately”. If this had been done, then Mrs E would have been aware of the arrears issue and likely the Claimant would have become aware of the control Mr E was exerting.

Mrs E also argued that the CPR 39.3.5 criteria –  when party does not attend a trial – were met, as Mrs E:

1) Acted promptly
2) Had good reason for not attending the hearing
3) Had a reasonable prospect of success

The court accepted that Mrs E had been in the dark up to the bailiffs attending and had acted promptly thereafter. Mrs E’s position on the possession claim had reasonable prospects on a commitment to pay £2000 immediately and £100 per week towards the arrears.

On the issue of oppression, the court accepted that the pre action protocol on rent arrears required contact by letter to be to each named tenant and that this had not been done, and that bringing possession proceedings on the back of this failure amounted to oppression as an unfair reliance on strict legal rights.

The warrant and possession order were set aside. A suspended possession order was substituted on terms of payment of £2000 and thereafter £100 per week towards the arrears.

No order as to costs,

Our thanks to Martin Davis of 33 Bedford Row and Sean Shanmuganathan of Tyrer Roxburgh Solicitors for the details of the decision.

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 and tagged , .

16 Comments

  1. Well done Tyrer Roxborough
    However, since the possession order was set aside I don’t think this takes oppression any further

    • “And the warrant…”

      The warrant of possession automatically gets set aside with the possession order getting set aside.

    • Of course. But this was an application at post-warrant stage. Not sure what your original point was. Why would the set aside of the PO not mean the case was taking oppression any further?

    • One does not need oppression to get a PO set aside [whether the application is made before or after eviction]. If you get the PO set aside post eviction it also automatically sets the eviction and the Warrant aside. They fall with the PO.

      on that basis since there was a successful application to set the PO aside I do not se how one can cite this as a case setting [non binding] oppression precedents

    • “The court accepted that Mrs E* had been in the dark up to the bailiffs attending and had acted promptly thereafter. Mrs E’s position on the possession claim had reasonable prospects on a commitment to pay £2000 immediately and £100 per week towards the arrears”
      * a party to the proceedings

      That in itself would have been sufficient to set aside the PO

  2. Good result.

    Incidentally do we know if the N325 Request for the issue a warrant was also incorrectly completed thus compounding the catalogue of errors ?

  3. Well done sean very creative way to approach this. It goes to show thd Landslords dont always cross their T’s and dot the i’s

  4. surely if the order was set aside on the basis of oppression (and especially failure to comply with pap) then dj should have made a costs order. but i just want to have my cake and eat it. djs need to remember that if a landlord brings a case wrongly, unless there’s an inter partes costs order a) we the taxpayers pay the costs (meagre thought they may be) through LAA and b) the ‘successful’ legally-aided party may have a pyrrhic victory by having to pay those costs out of any award of damages.

  5. This is not a case of Stay of warrant nor suspension of order, ok may be setting aside. This is a case of re-entry since the Baillif had attended.

    • John, the post is perfectly clear about what it was. Setting aside the possession order and the warrant on grounds of oppression. A suspended possession order was made instead. Nobody said it was about a stay or suspension of order.

  6. I seem to remember a case with very similar circumstances but authoritative dealing with serving a the section 8 notice to each joint tenancy separately…do you know the case? Trying to defeat a Ground 8 claim on this basis.

    • Not that I know of. Notice must name each tenant, but assuming s.196 LPA clause in tenancy, service on the property is good service. If there is no s.196 clause, then I guess would have to evidence service on each tenant.

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