15/09/2019

Injunctions, evictions and unrepresented parties

Brown v Tyndale (2019) QBD (Robert Francis QC) 25/07/2019 (unreported, but note of extempore judgment on lawtel)

The kind of thing that happens when neither party is represented…

In December 2018, Mr Brown had obtained an ex parte injunction against Mr Tyndale, the landlord, on the basis that the landlord had attempted to lock him out of the property and remove his possessions. There was a dispute as to whether occupation was under an assured shorthold tenancy or not. On the return date, the landlord attended, and the injunction was vacated. (The tenant asserted that this decision had been appealed, but there was no evidence of this.)

The tenant then obtained  renewal of the injunction on an ex parte basis, with a commitment to file and serve on the landlord and application for the return date.

It appears that matters were then delayed due to discussions between the parties. The landlord then applied to set aside the injunction order, on the basis that the landlord wished to issue possession proceedings.

The tenant sought an adjournment to get legal advice. This was refused as he had had at least a weeks notice of hearing.

The landlord (in person) argued that the injunction prevented him from issuing possession proceedings.

The High Court held that the issue of the nature of the tenant’s occupation and tenure could not be decided on this hearing, given the lack of evidence. But the injunction did not prevent the landlord bringing possession proceedings.

Removing the injunction would suggest that the landlord was entitled to immediate possession, but on the other hand, the injunction did not mean that the tenant was entitled to remain in the premises.

The existing injunction was varied to make clear that it did not prevent the issue of possession proceedings by the landlord, and that the tenant would pay £800 per month while in occupation (without prejudice to any counterclaim).

The case was transferred to the County Court.

Comment

Oh brilliant. Two unrepresented parties wasting the High Court’s time, when this should always have been a county court matter, and with representation would have been dealt with in a couple of weeks.

There will be much more of this. The High Court should be more proactive in transferring matters to the county court, for starters.

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.

6 Comments

  1. Ben Reeve-Lewis

    I agree with your points there Giles but you seem to suggest that sourcing representation is easy when it is anything but. Despite the recently published official list of housing specialist legal aid solicitors, which looks quite healthy in terms of numbers, whenever we call trying to get someone for injunctions for illegally evicted clients, which is several times a month, nobody has capacity and as you know, with illegal evictions, speed is of the essence. in three and half years, working with over 350 families in six London boroughs we managed to get a solicitor involved in less than ten cases.

    Reply
  2. Ben Reeve-Lewis

    Wholly agree but the problem with represented parties is getting the representation.

    Last week govt issued the latest list of housing specialist legal aid solicitors and although the excel spreadsheet is impressively populated it isnt the same as being able to find a solicitor with capacity to take on. My crew have need of an injunction several times every month and the ring around always gets me the same answer “Sorry Ben we’re snowed” and injunctions in cases of illegal eviction need to be done fast if re-entry is the aim.

    Most times self representation is the only choice people have

    Reply
    • Giles Peaker

      That was the context of my point. It is only going to get worse.

      Reply
  3. McKenzie friend

    I completely understand that you can’t offer advice on individual issues…but I’m going to try my luck anyway! I helped somebody who was illegally evicted by a lock change 4 days ago to make an emergency application to court for an injunction to get a new set of keys (as a McKenzie friend). The landlord had ignored all requests to reinstate the tenant. After getting an appt slot with the judge I emailed the landlord a copy of the N16A and 2 witness statements and informed them of the hearing time and court location – approx 2-3 hours notice. The claimant is street homeless. When we arrived at the court the landlord had apparently sent the court an email, which wasn’t shown to us. We were told that because of warning the landlord of the application it couldn’t be treated as an emergency as it was now technically “on notice”. We were also told an emergency application ought to be submitted within 24 hours of the unlawful eviction otherwise it must be made “on notice” so we would be refused for both reasons. We were told to deposit the documents in the “drop box” and that when it was considered as part of the “box work” the judge should “abridge” the notice times. Thankfully the applicant has an appt with her Legal aid solicitor tomorrow as that was the first available time she could get, hopefully he can put things right. I’m distraught that I ruined the chances of this application being considered by trying to warn the other side about it, I always thought that was the right, fair and decent thing to do. Is there any guidance about an application needing to be made within 24 hours? and why is it so detrimental to try and warn another party of an “ex-parte” application? Any general advice would be appreciated because finding a Legal Aid lawyer in 24 hours is mission impossible and if this happens again I’d like to do a better job- thanks

    Reply
    • Giles Peaker

      I fear the District Judge (or the court office) has gone off piste. You are indeed supposed to try to notify the other side of an urgent injunction ‘informally’ – CPR Practice Direction 25A 4.3(3). (Which also applies to applications mad before issue of a claim form – CPR PD 25A 4.4(1). )

      Court admin does seem to be getting injunctions wrong these days.

      Reply
  4. McKenzie friend

    Thanks for clearing that up, I did try arguing with court staff that an email of unsealed documents to the defendant surely couldn’t count as “formal service” to make this “on notice” I was then asked to hand one copy of the N16A with witness statements over. Court staff came back and read from notes on a pad of paper “the judge says…” so it did have the overview of a judge. I had a battle just to get the appointment over the phone, court staff then insisted that the rudimentary N1 claim form needed to be provided in triplicate and that a separate fee remission form was needed for that, which we sat handwriting. The 2 sheets of proof of her Universal Credit was not acceptable by staff to support 2 applications, we would either need to pay £10 for the court to copy this or go to a shop nearby at 30p so my colleague went off to get a copy. We’d tried arguing that the applicant had no money to do this, the last of her money was spent on a locksmith the previous Friday to try and gain entry that way (in the witness statements). When 3 of everything was in place plus 2 fee remission forms with income proof we were still being told any application for re-entry must be made within 24 hours. My colleague pointed out that no solicitor would touch the case without her UC proof so how was she expected to come to the court on her own in that time frame when all her income proof was locked inside the property, court staff said “but we do have the ability to accept a fee remission form without income proof in exceptional circumstances”, how ironic! We begged and pleaded that this was an emergency because she was homeless and her belongings were at risk and it was then that the judge must’ve agreed to look over it. Fortunately a night shelter space was found for last night. In case anybody is wondering this is Bromley county court where her application is sitting in a box instead of in front of a judge

    Reply

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