18/04/2020

Notice of applying for permission for a writ

Hertfordshire County Council v Davies (2020) EWHC 838 (QB)

An application on the issue of notice under CPR 83.13(8) on permission to issue a High Court writ.

Mr Davies was a school caretaker. He and his family lived in a bungalow which was tied to his employment. That employment ended in 2015. After a substantial history of proceedings, Mr Davies was evicted by High Court enforcement officers on 3 February 2020. The writ underlying that eviction was the target of this application to set aside the order giving permission to issue the writ of possession, to set aside the writ of possession and to reinstate the Mr Davies and his household into the bungalow.

A brief history. Hertfordshire CC had brought possession proceedings in 2015. A possession order, with possession in 28 days was made in 2017. Mr Da applied for permission to appeal to the Court of Appeal. Mr D’s solicitors asked Hertfordshire what their position was on enforcement of the possession order. Herts replied that as the 28 days had not expired there were no current enforcement proceedings. The Court of Appeal subsequently granted permission to appeal, and Mr D’s solicitors again asked Herts what their position on enforcement was in view of permission and the expiry of the 28 day period. Herts did not reply.

On 29 September 217, before the determination of the appeal, Hertfordshire applied for permission to issue a writ of possession. This was without notice to Mr D, and no copy of the application was sent to Mr D. The application did not mention the outstanding appeal.

Permission was given on the same day.

The order, in standard form, includes the words “AND UPON THE COURT BEING SATISFIED that it is shown that every person in actual occupation of the whole or any part of the said land (“the occupant”) had 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”. The order was not subsequently served on the defendant.

Th Court of Appeal dismissed Mr D’s appeal in March 2018 (our note here). The Court of Appeal refused permission to appeal to the Supreme Court and refused to stay enforcement of the possession order pending application to the Supreme Court.

Herts told Mr D that enforcement would not be put on hold pending any application to the Supreme Court. Nonetheless, Herts did not take steps to enforce. Mr D applied for permission to appeal to the Supreme Court and this was refused in June 2019. Some correspondence between Herts and Mr D’s solicitors followed, with Herts requesting a departure date. In July 209 Herts said “the council is minded to initiate eviction proceedings without further notice”. In January 2020, Herts obtained a writ and this was executed in February 2020.

Mr D’s argument on the application was:

when the application for permission to issue was made in September 2017, the claimant did not inform the court (i) that it had not served a copy of the application on the defendant or the other occupants of the bungalow, his family, (ii) that the defendant had an appeal pending in the Court of Appeal and for which permission had been granted and (iii) they had told the defendant’s solicitor that no enforcement action was being taken and had not updated them since. On that basis, it is argued that the permission to issue the writ and consequently the writ should be set aside and the defendant allowed re-entry.

On (iii) the High Court found this was factually incorrect. The only relevant communication from Herts was that it would not enforce within the 28 day period of the possession order. Nothing was said about future enforcement action.

On (ii) it was certainly the case that the High Court should have been told by Hertfordshire of the outstanding appeal on the application for permission for a writ. However, it was far from clear that this would have resulted in permission being refused if the appeal had been raised. Permission might have been given conditional upon the appeal being concluded.

I have been taken to Ahmed v Mahmood [2013] EWHC 3176 where a failure to inform the Master of an appeal led to the writ being set aside. In that case at the time of the decision to set aside the writ of possession, the appeal was still live. In this case there is no ongoing appeal; that leads in my view to different considerations. The mischief intended to be avoided is enforcement during an appeal which is later successful. That did not occur. I am therefore not persuaded that the permission or writ should be set aside on that ground.

On (i), following Gupta v Partridge (2017) EWHC 2110 (QB) (our note) and Brooker & Wilson v Sandi St Paul (2017) EWHC 3510, there was no requirement that the application for permission be served on the occupants of the property. What is required by CPR 83.13(8) is evidence that “every person in actual possession of the whole or any part of the land (“the occupant”) 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.”

In this case, Mr D was aware of the possession order and that it might be enforced in September 2017. However, that by itself was not sufficient. Some warning or request that possession be given up was required, after the fact of the possession order.

That is consistent with the analysis of Foskett J in Gupta v Partridge, that “where there is a sole occupant who is the subject matter of the possession order and she had full knowledge of the possession proceedings, a reminder of the effect of the court order and a request that possession is given up is generally speaking sufficient notice”.

Therefore prior to the application for permission, adequate notice had not been given either to the defendant or to his family.

Hertfordshire argued that the July 2019 letter was such notice, but that post-dated the application for permission. If the application for permission had been made after the July 2019 letter, it would have been adequate notice and the correct procedure followed.

However, Mr D had had ample time after the July 2019 letter to apply for a stay. The parties would have ended up in the same place had the correct procedure been used. And finally, on the arguments for a stay of enforcement.

The defendant argues that an application for a stay of enforcement could be made based on the claimant’s public sector equality duty and therefore there could have been and indeed could now be a stay of enforcement if they were allowed to re-enter. Ms Fox’s witness statement dated 10 February 2020 notes that the defendant is disabled under the Equality Act, his youngest child suffers severe anxiety and is undergoing counselling and in seeking to execute the possession order the claimant has not complied with its public sector equality duty. In her second witness statement dated 24 February 2020, she states that since the eviction the claimant’s wife has been suffering severe anxiety and has been referred to MIND. It is not in dispute that the defendant has no private law right to stay in the bungalow and has in fact been staying there rent free for 4 ½ years.

I do not accept that there is an arguable case that any enforcement should be stayed based on the claimant’s public sector equality duties, even taking into account the low threshold required. The local housing authority has a duty to house the defendant and his family adequately. The statement that the defendant’s wife has suffered anxiety subsequent to the eviction and that the youngest child has severe anxiety do not in my view raise a credible argument, that even if the claimant has failed to consider relevant matters, it would have made a difference to an application for a stay.

The Defendant remains disabled as he was at the date of the possession order. Even if his wife and youngest child’s illnesses to amount to a relevant disability, the claimant would inevitably have decided to enforce as they did. The claimant decided to pursue enforcement in a case where the private right to reside in the property ceased 4 ½ years earlier, a possession order was made around 2 ½ years earlier. 6 months was left between the notice of an intent to enforce and actual enforcement. The defendant and his family were able at any time since June 2015 to apply to the local housing authority to house them. Any application for a stay under the PSED would be bound to fail.

Application refused.

Comment

The position on High Court writs and on evictions under writ remains generally unsatisfactorily uncertain after Gupta v Partridge and as here. In particular, there is the lack of any requirement for notice of the date of eviction, but also the uncertainty as to what kind of notice is sufficient for the purposes of CPR 83.13(8) – what would amount to a ‘warning or request that possession would be given up’?

There apparently has been a review of enforcement procedures underway for some time, with suggestions that this may result in a unified High Court and County Court procedural approach to evictions. That would be a good opportunity to sort out uncertainties and clarity on notice required.

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.

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