Generic selectors
Exact matches only
Search in title
Search in content
Filter by Categories
Allocation
ASB
Assured Shorthold tenancy
assured-tenancy
Benefits and care
Deposits
Disrepair
Homeless
Housing Conditions
Housing law - All
Introductory and Demoted tenancies
Leasehold and shared ownership
Licences and occupiers
Mortgage possession
Nuisance
Possession
Regulation and planning
right-to-buy
secure-tenancy
Succession
Trusts and Estoppel
Unlawful eviction and harassment
12/09/2021

Injunction for re-entry and balance of convenience.

Mahandru v Nielson (2021) EWHC 2297 (QB)

An appeal of a County Court decision to refuse an interim injunction for re-entry in a claim for illegal eviction.

The claimant, Mr Mahandru hd been living in a property owned by Dr Nielson since December 2020. On 4 April 2021, Mr M was admitted to hospital with mental health issues. When he tried to return to the property on 11 May 2021, he found the locks had been changed and Dr N was living in the property. Mr M brought a claim for unlawful eviction and made an application for an interim injunction for re-entry. In the meantime, Mr M stayed in a hotel.

The Recorder had sight of a defence, filed and served shortly before the interim injunction hearing, which asserted that the ‘resident landlord’ exception to the tenancy being an assured shorthold tenancy applied.

The Recorder refused the application, finding that:

There was a serious issue to be tried, as there was an arguable (though not certain) case that this was an assured shorthold tenancy.

It was not a case in which damages would be an adequate remedy for either party, if the injunction was wrongly granted, or for the claimant if it was not granted.

The question then was the ‘balance of convenience’. On this “the claimant was prevented from residing in the property in respect of which his case is that he has an assured shorthold tenancy. Having been locked out, he was residing in a hotel and, clearly, the position was made more difficult for him in view of his mental health difficulties evidenced by the medical evidence before her”. But Dr N’s evidence was that the property was her only home and that she had nowhere else to reside. This was accepted by the Judge, who held that on balance, Dr N should not be put out of her home.

Mr M appealed to the High Court. Apparently, the appeal was heard two days before the trial of the unlawful eviction claim.

Mr M argued variously:

The defence had been served late, was a substantial document and there had not been time to consider it. This was dismissed. The defence had been served very shortly before the hearing, but Mr M had also filed last minute evidence. There had been an opportunity to consider the defence, but it was the nature of interim injunction hearings that material would be filed at a late stage. No application for an adjournment had been made by Mr M. There was no procedural irregularity in the hearing proceeding.

The second and third grounds of appeal were

“The Recorder failed to have regard to paragraphs 5 and 6 of Lord Diplock’s guidance in American Cyanamid v Ethicon (1975) AC 396. The Recorder had identified this as a case that was finely balanced and in which neither party would be adequately compensated in damages should an injunction turn out to have been wrongly granted. She did not identify any respect in which defendant might be more at risk of suffering uncompensatable disadvantage than the claimant. Notwithstanding this, and in breach of Lord Diplock’s guidance, she failed to consider the relative strength of each party’s case.

and

“The Recorder failed to have regard to paragraph 4 of Lord Diplock’s guidance in American Cyanamid, since although the Recorder stated in her judgment that the case was a finely balanced one, she failed to mention or consider restoring the status quo ante.”

The High Court notes that guideline 4 in American Cyanamid is “(4) Where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo.”  This was what the District Judge had apparently had regard to. The status quo was that Dr N was living in the property. In order to make out that it was the status quo ante that should apply, the risk of injustice to the claimant would have to be the greater, or “one party, by conduct that reflects little credit on them, has ‘stolen a march’ on the other” (White Book Vol 2 para 15.4).

The Judge had considered this, finding:

“It seems to me that whilst one can foresee a situation where the claimant can argue that there has been some manipulation on the part of the defendant, I do not consider that there is sufficient evidence for me to make that determination at this juncture. I am asked to infer from the way in which the defendant has gone about the text messaging that she somehow has manipulated the situation or changed her mind at a later juncture. I am afraid that whilst that argument is not without merit in that I can see it being arguable, I do not consider that I can reach a conclusion that the defendant has somehow manipulated the situation with regards to this property to suit her own ends.”

The Judge had considered the merits of the case and also the extent of disadvantage to both parties. The DJ was right to find that while the claim was reasonably arguable, evidence was at an early stage, so merits didn’t outweigh the prudent position of maintaining the status quo. And on disadvantage:

As regards the extent of disadvantage, the claimant had defaulted on his rent, so the real possibility that damages would not be an adequate remedy for the defendant was clear. More importantly, as the Recorder found, the defendant did not have another address where she could live. So, for that reason too damages were not an adequate remedy for her. The claimant was not street homeless. The medical evidence showed that he had been offered temporary accommodation on discharge (although he had not taken up that offer) and at the time of the hearing, he was living in a hotel. The Recorder was not wrong in her assessment of the balance of convenience.

Finally, Mr M argued that:

In deciding to exercise her discretion in favour of the defendant, the only factor cited by the judge as a reason for finding that the balance of convenience swung in her favour were ‘extraneous circumstances’. It is understood that this referenced various allegations levelled at the claimant by the defendant relating to his recently failed marriage. The judge erred in having regard to these allegations, since they were extraneous and irrelevant to the issues in dispute between the parties.”

This was a misreading of the judgment and the Recorder’s approach.

The essential point was that on the defendant’s case, the intention had been that both the defendant and the claimant would together occupy the property. The extraneous circumstances and, indeed, the litigation itself were only relevant insofar as they demonstrated – as was not disputed – that if the claimant were to be readmitted to the property, the effect of that would be that the defendant could no longer live there. Realistically, there was no question of both parties living together in the property and so the Recorder had to approach the application on the understanding that refusing the injunction prevented the claimant living in the property, while granting the injunction would have had the effect of evicting the defendant from the property. It was in that way that the Recorder referred to the extraneous issues and for no other purpose. In my judgment, she was not wrong in that and she did not take into account any irrelevant matters.

Appeal dismissed, but given that the trial hearing was in two days, no injunction would have been granted even had the appeal succeeded, as an interim injunction would not be appropriate at this stage.

Out of curiosity, does anyone know the outcome of the trial?

 

 

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.

10 Comments

  1. John

    It’s not immediately obvious from the extracts shown here, but [Edited by NL, as we don’t speculate or come up with entirely hypothetical accounts of ‘what likely happened’ on potentially ongoing matters]

    Reply
    • Giles Peaker

      Yes, a simple cock up by the defendant’s solicitors in not filing and serving a schedule.

      Reply
  2. philip mcleish

    At the trial the judge decided – against a mountain of evidence to the contrary – that the tenancy was not an AST. She nevertheless accepted Mr M’s fallback position, which was that even if he was supposed to be sharing the property with her (it was undisputed that she had not in fact been in the property until she changed the locks while he was in hospital), he was still entitled to have his occupation terminated properly by notice to quit (which had not been done). Accordingly he had been unlawfully evicted and was entitled to damages and costs, but she declined to order him back into the property.

    I think the appeal judge’s distinction between ‘status quo’ vs ‘status quo ante’, and apparent privileging of the former is baffling in the context of injunctions for unlawful eviction: if the default position is to leave whatever facts on the ground the landlord has managed to put in place it drains that bit of the American Cyanamid test of its valuable rule of law function. It’s the judicial equivalent of the police officer who, surveying the the tenant standing with possessions scattered on the pavement and locked out of his home, shrugs, ‘sorry it’s a civil matter’.

    Reply
    • Giles Peaker

      Thank you for that. Would be interested to write it up if there is a note of judgment…

      Re-entry injunctions have always been a uphill battle on anything but the clearest of cases. But on finely balanced cases, one would expect the ‘balance of greater injustice’ to usually go the tenant’s way without pretty strong evidence from the landlord of the impact on them (and ‘LL’s only home’ would, I think, have to be pretty much the only plausible balance).

      Reply
  3. Ben Reeve-Lewis

    Back when LASPO came in I remember Andrew Arden writing a piece on whether in such instances a landlord forcing out a lawful tenant to occupy themselves could be considered a squatter under s144 of LASPO

    Offence of squatting in a residential building
    (1)A person commits an offence if—
    (a)the person is in a residential building as a trespasser having entered it as a trespasser,
    (b)the person knows or ought to know that he or she is a trespasser, and
    (c)the person is living in the building or intends to live there for any period.

    Reply
  4. Jonathan Boyle

    Presumably, Mr M could still make an Equality Act claim in the County Court for discrimination arising from disability. As it is possible the injury to feelings would not be covered in the unlawful eviction damages.

    Reply
    • Giles Peaker

      Would depend entirely on the facts. Eviction would have to be related to the disability.

      Reply
  5. Duncan Macpherson

    Am I right that the judge below was a Recorder and not a District Judge? When I used to do these cases, a District Judge lacked jurisdiction to make an injunction for reentry.

    Reply
    • Giles Peaker

      You are right – hurried writing. I’ll correct

      Reply

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.