How… How did THAT happen? corner

Another in our occasional series of cases that cause you to splutter into your coffee.

Kirby v Salvation Army Hostel Association (2018) QBD 12/10/2018 (Unreported. Lawtel note of extempore judgment)

As far as we can tell, Mr K had been occupying a room in a Salvation Army hostel. However, he had not paid any room fees and there were arrears of some £13,000. The SA served a notice to quit. So far, so straightforward…

Mr K then went to the High Court (wrong court) on an ex parte injunction (or – and this is not clear – it might have been a McKenzie friend doing this, without Mr K present). Somehow Mr K obtained an injunction restraining SA from evicting him until the return date or further order. (How? What on earth was judge told about the circumstances and the court’s available powers?)

Nonetheless (and we don’t have any detail on the circumstances) SA evicted him. (Don’t do this! Even if you consider that an injunction was wrongly obtained, do not ignore it!)

Mr K (or possibly his McKenzie friend) went back to the High Court for an order for re-entry and obtained one. Again, it appears, ex parte. SA then re-admitted him.

Mr K then served particulars of claim, alleging that the arrears were a result of the SA’s failure to complete a housing benefit application, breach of Protection from Eviction Act 1977 and Protection from Harassment Act 1997.

This judgment was the result of the return date hearing on the injunction, with Mr K (or rather his McKenzie friend) seeking a continuation of the injunction, on the basis that SA’s threat of eviction amounted to ongoing harassment.

This time SA were present and represented. Mr K was not present, but his McKenzie friend was. The result was somewhat inevitable.

First, this was the third hearing at which Mr K had not been present, but the McKenzie was. The court would not lightly permit a McKenzie to represent a litigant, particularly where, as here, the court could not be sure what was authorised by the litigant. Representation was allowed at this hearing on the limited issue of the continuation of the injunction as that had originally been argued by Mr K. This was an exceptional situation and it was unlikely to court would agree to hear the McKenzie in the future.

It was admitted by the McKenzie at this hearing that Mr K occupied the hostel room under a licence which was excluded from the Protection from Eviction Act.

SA are a charity housing the homeless. There was a limit to they could permit, given their funding and obligations. It was Mr K’s responsibility to apply for housing benefit, not SA’s. If an occupant did not pay the licence fees, SA’s only realistic option was to terminate the licence.

It was clear that the court that granted the injunction had been misled as to its powers where the occupant had an excluded licence. The court had also made the injunction on the basis that the wrong that was to be prevented was Mr K’s eviction.

There was no basis for granting the injunction and it was set aside.

The harassment ground could not stand. The court was not persuaded that service of a notice to quit and consequent eviction could amount to harassment in these circumstances. (As an aside, we know that repeated claims for possession based on the same error are capable of being harassment, but that is a different scenario).

The High Court was not the right venue as neither the complexity nor value thresholds were met. This should have been a county court matter and it is likely that a county court’s experience in such matters would have meant that the initial injunction application would not have been granted as the limits of the court’s powers would have been recognised.

Application to continue the injunction refused.

Comment

By my reckoning, that means that Mr K’s claim against SA for harassment, breach of PEA and for failure to complete a housing benefit application rumbles on, though surely not for long.

But as for the rest… OK, a court faced with an ex-parte application by a LiP (and I can only presume, less than complete facts and legal argument) may err in granting an interim injunction. That said, I suspect that it is right that a County Court DJ or CJ would be less likely to make such an error, if they’ve been put through doing the possession lists. But..

Why did SA not obey the initial injunction? (Assuming it was actually served, of course). An urgent application to set it aside, sure. But you don’t ignore a High Court injunction order, no matter how wrong.

Why was the re-entry application not given a degree more scrutiny? Particularly as it was against a homeless charity.

Why was this McKenzie permitted to ‘represent’ Mr K in his absence on three occasions? Obviously, urgent and ex parte hearings are under time pressure and so on, but with no claimant present?!

And lastly, on Mr K’s HB application, one might think that SA could have assisted with it to a degree (and maybe they did, as facts are slim picking here), but it was Mr K’s application. £13,000 of arrears does not suggest that SA acted precipitately.

And finally, as an aside. Mr Allen’s claim against Southwark for harassment by possession claim, linked above, did eventually fail – cock up, not conspiracy.

 

 

 

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, Licences and occupiers, Possession.

3 Comments

  1. To fill a few of the gaps:
    1. It seems that Mr K may have accompanied the McKenzie Friend on the w/o notice application(s). A transcript is awaited to see what the judge was told;
    2. The MF is Mr Joe Sykes (http://www.joesykesadvocate.com) of http://www.fleetstreetadvocates.com, a disbarred barrister;
    3. SAHA denies ignoring and/or breaching the injunction;
    4. SAHA’s evidence was that it had made efforts on numerous occasions to assist Mr K in making a valid claim for HB to no avail.
    5. Why the MF was permitted to represent Mr K on (at least) three occasions in Mr K’s absence is a good question. However faced with a claimant said to be vulnerable and too ill to attend the Court is in an invidious position. It doesn’t help that on each of the three occasions the claim was listed before a different High Court judge (all different from the judge who originally granted the w/o notice applications). All the more reason to commence the proceedings in the correct court in the first place.
    6. Nicklin J indicated that he proposed to consider making a civil restraint order against Mr K and the MF following a further hearing.

  2. Pingback: Landlord Law Blog Roundup from 8th Octoberr

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

This site uses Akismet to reduce spam. Learn how your comment data is processed.