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22/02/2018

‘Can’t Pay..’ will have to pay.

Ali and Aslam v Channel 5 Broadcast Ltd (2018) EWHC 298 (Ch)

I won’t go into detail – do read the judgment for the oddest mashup of housing law, media law and privacy law we have encountered (so far) – but suffice it to say that a husband and wife evicted by High Court Sheriffs and filmed as this happened (and without any consent) by a production company for Channel 5’s morally abysmal ‘Can’t Pay, We’ll Take It Away’, won a claim for misuse of private information and were awarded £20,000 damages and costs.

From deciding paragraphs:

Overall, I accept that the Programme did contribute to a debate of general interest, but I consider that the inclusion of the Claimants’ private information in the Programme went beyond what was justified for that purpose. As discussed above, the Programme made no reference to Mr Ali’s political activities. It was concerned with the Claimants’ position as private individuals. The focus of the Programme was not upon the matters of public interest, but upon the drama of the conflict between Omar Ahmed and the Claimants. Moreover, that conflict had been encouraged by Mr Bohill to make “good television” and other aspects of Mr Bohill’s contribution were also intended by him to make “good television”.

>As noted in paragraphs 58 and 140 above, a particular feature of Mr Brinkworth’s public interest justification was the desire to show how landlords could expedite enforcement by moving the process from the County Court to the High Court, and the effect of this. I agree that this is a matter of public interest. However, the Programme contained no information about the legal processes involved beyond the statements that the landlord had gone to the County Court eight months before and had now escalated the case to the High Court to get the tenants evicted (paragraph 132 above). The circumstances of the Claimants’ eviction reveal what in my view is a matter of considerable public interest and concern, namely the fact that the Claimants were given no notice of the eviction and were taken wholly by surprise. (Moreover, for the reasons explained above, they were then faced with having to go to the Council to seek emergency accommodation for themselves and their children.) Yet this important aspect of the story is not mentioned in the Programme, although a very attentive viewer might deduce it.

The HCEOs (Mr Bohill, above and Direct Collection Bailiffs Ltd) come in for particular stick for their participation in the programme and actions, with regard to the clear HCEA code of conduct regarding confidentiality.

One section caught my eye regarding assertions by the producer of CPWTIA, Mr Brinkworth (at 140).

Has CPWTIA led to a change in practice?

Mr Brinkworth suggested in re-examination that the practice in relation to the requirement to give notice to tenants of an application to the High Court for a writ of possession to enforce a County Court order for possession had changed since April 2015 and that publicity given to the harshness of the then current practice by CPWTIA had contributed to public awareness of the problem. Counsel for Channel 5 attempted to substantiate this suggestion by referring to two Practice Notices issued by the Senior Master of the Queen’s Bench Division dated 14 December 2015 and 21 March 2016 (reproduced in Civil Procedure 2017, volume 1, at 2378-9). As counsel for the Claimants pointed out, however, the Practice Notices do not show that there has been any relevant change in practice: they are mainly concerned with inappropriate use of section 41 of the County Courts Act 1984 by HCEOs. Although the second Notice also refers to the question of notice under rule 83.13(8)(a), that has to be read in the light of the subsequent decision in Gupta.

This is some chutzpah. We know that a number of people raised issues with Channel 5 on the potential illegality of the evictions shown on CPWTIA, based on the issue of HCEOs obtaining writs using form N293A (for trespassers only, dealt with administratively, not by a judge). These were completely ignored. And, as one of the people involved in the discussions that lead to the Practice Note of 21 March 2016, I can safely say that CPWTIA had precisely zero involvement. The instigators were housing lawyers – Amy Just, James Stark amongst others.

The history of the N293A affair is in these posts (in reverse order), including the somewhat unfortunate coda of Partridge v Gupta (2017) EWHC 2110 (QB).

However, hopefully, this judgment might be a nail in the coffin of such exploitative, non-consensual programmes that invade people’s private space at moments of distress and confusion in the name of a spurious public interest.

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.

5 Comments

  1. Jerry Flynn

    Just a message of appreciation. ‘Morally abysmal’ sums up the whole genre of these dreadful programmes well.

    Reply
  2. John Goodwin

    Well said Giles.

    Reply
  3. Steve Clarke

    Hurrah! for the victims of this dreadful exploration. Well said Mr Peaker.

    Reply
  4. Chris Daniel

    Don’t know a lot about the programme, its data sensitivities or otherwise, But, – I struggle to find sympathy for a tenant that owes a Landlord ( or anyone else for that matter ) £20k !

    Reply
    • Giles Peaker

      Chris, that was the damages awarded to the tenants against Channel 5. But thank you for your close attention before jumping to conclusions. Arrears were apparently about £8K.

      Reply

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