Sufficient Notice

Partridge v Gupta (2017) EWHC 2110 (QB)

Those who have been readers of this blog for a while may recall our campaign about evictions by High Court Sheriffs where the writs were (wrongly) obtained as an administrative act by using form N293A. This culminated in a practice note by Senior Master Fontaine, stressing that – for tenants, if not for trespassers or mortgage possessions – any application for a writ had to comply with CPR 83.13.

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.

What does ‘sufficient notice’ mean? This appeal is on that issue. The appellant, Mr Partridge, had applied to set aside a writ of possession on the  basis of lack of sufficient notice. That was dismissed by Master Yoxall and Mr P appealed. Having previously been in person, Mr P was ably represented through the Bar Pro Bono unit (Justin Bates and Amy Just).

Mr P had had an AST. Defended proceedings following a s.21 notice had resulted in a possession order. Mr P sought permission to appeal, and then oral renewal of that application.

In the meantime

‘The Burlington Group’ (an HCEO) was instructed by the Respondent to undertake enforcement of the order and that company issued an application in Watford County Court seeking permission to transfer the case to the High Court for enforcement purposes pursuant to section 42(2) of the County Courts Act 1984. The application was said to be “so that a Writ of Possession may be issued in the High Court of Justice.” A director of the company, Mr Jonathan Chatfield, said this in the Application Notice:

“We believe that all occupants of the property are fully aware of the Order made on the 12th February 2016 but they have not cooperated to date and have ignored the Order in question. In light of this they are unlikely to vacate unless required to do so.
We are seeking this leave to enforce in the High Court as we are informed by the Creditor that they wish to mitigate their loss and accelerate the eviction process. We have provided Notice to the occupants of the intention to transfer execution to the High Court and believe that all of the occupants are aware of the proceedings in accordance with the CPR.
Having provided Notice we do not feel that the Defendant will be prejudiced by enforcing in the High Court and we will provide further Notice of Eviction if so ordered by this Court.”

The Notice to the occupants to which Mr Chatfield referred was contained two letters (sent by first-class post) in identical terms addressed respectively to “The Occupiers” and “Mr Michael Partridge and 1 other” as follows:

“We are writing to formally provide you with notice of the following:
1. Our application to Watford County Court for leave to transfer the enforcement of the Order to the High Court under Section 42 of the County Court Act 1984. This allows a High Court Enforcement Officer to obtain possession of the property rather than a County Court Bailiff, and
2. Our application in accordance with Civil Procedure Rules 83.13(8) to the Queen’s Bench Division of the High Court for permission to issue a Writ of Possession following permission from the County Court under Section 42 of the County Court Act 1984 as stated above.
We strongly recommended that you obtain independent legal advice but please do contact this office if you have any questions regarding the impending eviction.”

The s.42 application was stayed pending the outcome of permission to appeal the possession order. Once that was refused the s.42 application was granted.

Thereafter the writ was issued.

So, did this letter (or letters) amount to ‘sufficient notice’?

Mr P argued that CPR 83.13 effectively meant that an application to the High Court for  writ must be an on notice application, that being a general rule, such that CPR 83.3 (permission for writ against trespassers where possession order is over 3 months old) contained a specific exception. This further served the policy purpose that “those who are to be evicted should be given notice of the time and date of when they are to be evicted.”

However, the Hon Foskett J disagreed. Notice of application for a writ would not in itself be notice of a date of eviction. CPR 83.13 was couched in much more general and permissive terms, and if the application was intended to be on notice, the easiest course would have been to specify that.

While Rose J in Secretary of State for Defence v Nicholas [2015] EWHC 4064 (Ch) (our note) had set aside a writ at least partly on the basis that notice of the application under CPR 83.13(8)(a) had not been given, Nicholson could be distinguished from the present case as

in this case, in addition to the knowledge the Appellant gained from his active participation in all proceedings up to the conclusion of the hearing before HHJ Harris, there was at the very least an intimation of an intention to apply for permission to issue a writ of possession in the letter of 23 March 2016. Furthermore, as indicated above, the final paragraph of that letter heralded the “impending eviction” (see paragraph 15 above). In Nicholas no such warning was given.

Appeal dismissed. Sufficient notice had been given.

Foskett J then proceeds to set out what might amount to sufficient notice under CPR83.13 in various situations (at 63-67)

  1. The test for deciding whether permission to issue a writ of possession should be granted following an order for possession, whether there is one occupant or more than one occupant of the relevant premises, is whether “every person in actual possession of the whole or any part of the land … 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.”
  2. The “notice of the proceedings” referred to does not necessarily require either the service of the formal notice of application for permission or even a more informal intimation by letter or other communication that the application will be heard on a particular day or at a particular time. Either would be sufficient, but neither is required by the rule provided that the notice is sufficient to enable the occupant(s) to apply for relief.
  3. Where there is a sole occupant who is the subject of the possession order and he/she has full knowledge of the possession proceedings, a reminder of the terms of the court order and a request that possession is given up under the order is, generally speaking, sufficient notice within the rule. This is consistent with the practice referred to repeatedly in the White Book that where “the defendant is the only person in possession of the premises the claimant must give the defendant notice of the judgment or order, and call upon that person to give up possession under the judgment or order” (see paragraphs 32 and 35 above). If there was any doubt about whether this is sufficient, it could be resolved by saying in the same communication that permission to apply for a writ of possession will be sought from the court in due course if possession is not delivered up and that eviction will follow.
  4. Where the sole defendant has played no part in the possession proceedings, a letter or other suitable form of communication containing all the above information should ensure that sufficient notice within the rule has been given.
  5. Where there are occupants other than the defendant to the possession proceedings known to occupy the property, then a letter addressed to them (if known by name) or to “the occupants” (if the names are not known) in similar terms to that referred to in paragraph 15 above is required, it being necessary to include reference to the intention to apply for permission to issue a writ of possession if possession is not delivered up by the date prescribed in the order and that eviction will follow.

Comment

This is, perhaps, a very loose interpretation of ‘sufficient notice to enable the occupant to apply for relief’, not least because the view at 65 would mean that the occupant might be wholly unaware that an application to the High Court was to be made, presenting serious practical problems for any application for relief.

However, the judgment does at least provide some guidance for what Masters should be looking for as evidence of sufficient notice on any writ application.

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 Housing law - All, Possession and tagged , .

18 Comments

  1. Thank God for some common sense. You housing lawyers seem to view this type of fiasco as just an entertaining (and often lucrative) academic argument. Does it never once occur to you in your gold-leafed ivory towers that people like this Partridge bloke that you applaud for playing your game so skilfully are actually causing immense financial harm to their unfortunate landlord who just wants to be treated fairly? They are also making life much more difficult difficult for the vast majority of decent tenants who don’t try to screw their landlords by exploiting legal loopholes.

    I suppose so long as you lot can cash in on the legal aid that’s handed out so generously in housing cases the concept of actual justice is purely an abstraction.

  2. Charles hugely overstates his case and as Giles says is wrong. Not only did no tenant’s lawyer make money on this case, to say that lawyers now generally make lots of cash on legal aid is just plain nonsense – witness the complete absence of legal aid providers for housing cases in Shropshire as but one small example. But his point that some lawyers pursue housing cases against landlords in ways that are doubtful is worth more careful consideration.
    Witness the saga several years ago of RSLs/RPs getting caught out over rent increases under section 13 Housing 1988 with the dates of tenancies and the issue of application for permission to enforce a suspended possession order on rent grounds now the subject of consultation. In both cases the social landlords, the subject of detailed regulation to protect their tenants, have had to endure increased costs of administration and loss of rent to the benefit of those tenants who don’t pay without any genuine increased protection for tenants or other general benefit. The academic reasons that gave rise to those issues were correct but the overall benefit of them is questionable.
    Landlords, whether in the social sector or outside it, do have some justifiable reason to think that some organistations pursue their tenants’ rights agenda without regard to their genuine and reasonable interests. In the case of lawyers it is rarely for financial gain, but sometimes it is with a blinkered version of the law that ignores its general purpose and concentrates on academic rigour.

    • There are several things confused here.

      First, the role of lawyer for a tenant is to act in the tenant’s best interests. It is not to decide whether a particular point is ‘fair’ or not, only whether it is arguable and has prospects of success. It is the court that gets to decide, not the tenant’s lawyers and certainly not the landlord.

      Second, the s.13 cases were not ‘doubtful’. They were entirely right. HAs had been bodging their rent increases. There is a legal process to follow and they hadn’t been doing so. This is not ‘an academic point’. You don’t get brownie points for making an honest mistake. I am somewhat surprised to see you arguing that basically it is OK if HAs didn’t fulfill their legal obligations because they meant well.

  3. “Wasn’t this pro bono?”

    Not for the landlord.
    I doubt the judge, court clerks etc were doing it out of the goodness of their hearts either.

    • It was an appeal – it was the landlord’s decision whether or not to participate. Didn’t have to.

      I am at a loss as to what your point is. People do their jobs and get paid for it. So?

      Charles appeared to believe that the appellant was on legal aid. And that legal aid makes people rich. He was completely mistaken in both. (He also missed the point that Mr P was evicted quite some time ago and re-entry was not possible, or indeed sought by Mr P).

  4. The s.21 notice period, plus the court proceedings, plus the delay usually granted in the possession order give tenants more than 3 months notice as it stands.

    The process is simply dysfunctional and this is being exploited. Bailiffs should be at the property within a month of a s.21 notice period’s expiry.

    • This is to miss the whole point of CPR 83.13.

      If you want a more efficient court process (and I certainly do), then we shall have to pay more tax for it.

    • “This is to miss the whole point of CPR 83.13.”

      The point is that landlords should not even need to go the HCEO route.

      I am not convinced everyone wants a faster eviction process…

  5. “If you want a more efficient court process (and I certainly do), then we shall have to pay more tax for it”

    Alternatively, instead of just throwing even more money at the problem, a simple change to make s.21 possessions truly accelerated where there are substantial rent arrears (which there nearly always are).

    Hey presto! 90% less possession cases clogging up the system, cheaper rents for the majority.

    • You can’t include rent arrears in a s.21. The simple reason your brilliant idea wouldn’t work is that rent arrears have to be proved, and are vulnerable to a defence and counterclaim. So would be considerably slower.

      The trouble being that landlords can’t be relied upon to be accurate about arrears (or indeed, truthful about them)…

  6. Let us also not forget that landlords are running a business and susceptible to profit and loss the same as any other business. Making money is never risk free.

    • “landlords are running a business and susceptible to profit and loss the same as any other business.”

      I’ll have to remember that one next time I’m turning down desperate tenants that are less than 100% perfect and traceable. (6 this week already).

      “Making money is never risk free.”

      A large reason landlords charge decent tenants increasingly ‘soaring’ rents to pay for the unfit system.

    • Sorting out the court system will mean more in taxes, of course. And the problems with the courts affect everybody. Casting it as a particular burden on landlords is not accurate. But no-one who uses the courts will disagree that they are creaking…

  7. Giraffe – it’s a business. The issue regarding lack of housing is because successive governments from Thatcher onwards have failed to have a coherent and effective housing policy, and still don’t. Rents are high because like any business it is supply and demand. Anybody who becomes a landlord should know the law regarding tenancies and how to apply it. Many don’t and in my opinion are foolhardy in entering a marketplace and running a business for which they have limited knowledge, they run into problems and cut corners. I suggest you have a contingency fund for when you have a problem tenant or tenants and need to issue proceedings. It comes out of profit. The legal process is not particularly complex to learn and apply, nor is it expensive if you act for yourself. However, rents here are upwards of 1000 per month, but I suppose if in the north, the fees may be disproportionate on low rents of 450.

  8. With regard to a S21, no fault possession and the case report comment how is it possible that the respondant is not aware of the possession proceedings if nothing else but that the court would have notified them at the address of filing and claim which would be the legal address for service. On this basis the appeal is a sham and abuse of S83.13

    Furher this ruling appears to apply to notice of enforcment by bailiffs or the hight court sheriff who currently before enforcement give the tenants notice before physical access upon which they apply for a stay to appeal and thereby prolong their posession of the property without rent and with damages. For clarity the tenants and their legal representitives have have had months of notice and knowledge of prceedings and been invited by the courts to make respondant representation for any relief available under the law.

    It was previously commented that lawyers are there to best represent their clients. Does ths however over ride there first duty to the Law and Rule of law secondly does it over ride their professional duty and SRA code of practise to properly advise there clients in the law of the possable success of outcome and not the ability to circumvent by procedure.

    • It is entirely possible for people not to be aware of proceedings – if away, for example. But in any event, you miss the point of the appeal, which was precisely that the meaning of s.83.13 was unclear and, on previous High Court decisions, appeared to mean notice of the application for a writ. The appeal was neither sham nor an abuse and it is rather silly to say so.

      This ruling is concerned with s.83.13 which is specifically concerned with applications for a High Court writ of possession. High Court Sheriffs do not give notice before eviction. That was partly the point of the appeal. Even where someone is aware of the county court possession proceedings, it is entirely possible for them to be unaware that a writ has been applied for and an eviction date imminent.

      I have no idea what you are going on about with applying for a stay for appeal. Any appeal of the possession order has to be filed within the usual 28 days of the order. And a defence can’t be mounted on appeal if not made at first instance.

      I can’t make any sense of your last paragraph whatsoever. Of course any lawyer will be advising their client on prospects of success. But if the opponent has messed up procedurally, that is a perfectly valid issue to take up.

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