Post Eviction Applications To Suspend A Warrant For Possession

There are cases in which there is nothing that can be done. For instance there has been a trial at which the client was represented and a possession order was made and executed properly and there are no prospects of an appeal. Save for appealing to the landlord's better nature there is not much that can be done. If there has been a substantial change of circumstances: the arrears are clear; the violent son/partner has left/gone to prison it may be possible to consider JR if the public authority landlord won't allow reinstatement or won't even consider it.

However there are cases in which the warrant can be suspended notwithstanding the fact that the client has already been evicted.

Does The Court Have Jurisdiction?

Once the eviction has taken place the court's powers under Rent Act 1977,s.100; Housing Act 1985,s.85 and the Housing Act 1988,s.9 cease. You can't apply to suspend a warrant that has already been executed - see Leicester CC v Aldwinkle (1991) 24 H.L.R. 40, CA.

All is not lost however because the court can set aside a warrant that has been executed in the following cases:

1. The possession order on which the warrant is based is set aside: Governors of the Peabody Donation Fund v Hay ( 1987) 19 HLR 145, CA

Mr. Barrowclough submitted that once the writ of possession has been executed and possession given to the plaintiffs who have obtained an order for possession, there was nothing upon which Order 37, rule 8(3) could bite and its provisions only apply where any execution issued under a judgment or order was still executory at the time of the application to set it aside.

I cannot accept that construction of sub-rule (3). The latter seems to me to provide precisely for the situation which obtains in the instant case, namely that where a judgment or order is set aside, then, whether completed or not, any execution that has been issued on that judgment order shall cease to have effect, unless the court otherwise orders. It provides for the automatic cesser of execution on a judgment or order made by the county court if that judgment or order is set aside for any reason.

Per May LJ

The Warrant Has Been Obtained By Fraud

Fraud unravels everything. See Hammersmith v Hill (1994) 27 H.L.R.368

There has been an abuse of process or oppression in the execution of the warrant

See Leicester CC v Aldwinkle ( 1991) 24 HLR 40, CA

In my judgment it does not follow from the Fleet Mortgage Ltd case that where rules of Court do not require notice to be given to a tenant, the court can of its own motion insist on such notice where leave of the court to issue a writ of execution is not necessary. The court undoubtedly has inherent power to prevent abuse of proceedings and avoid oppression: cf. Beale v. MacGregor (1886) 2 T.L.R. 311. But in my judgment, even though Miss Aldwinckle was not expecting execution to be levied against her possessions, the use of available process does not of itself constitute abuse nor amount to oppression; and the court would be interfering unjustifiably with the existing policy of Parliament were it to introduce its own requirements as to additional conditions that have to be satisfied before execution may issue.

Per Leggatt LJ

Taking each in turn.

Setting Aside The Possession Order

If the possession order is set aside the effect is as if the order had never been made: Hay; Tower Hamlets LBC v Abadie (1990) 22 HLR 264, CA

Much will depend on when the possession order was made - the requirement of promptness is always lurking in the background as is the often cited principle that you are not entitled to a "second bite of the cherry".

There are number of different strands:

Seeking to set aside where the client failed to attend the possession hearing

Under CPR 39.3(5) the court may set aside an order made in a party’s absence if he:

a) acted promptly when he found out that the court had made an order against him;
b) had a good reason for not attending the trial;
c) had a reasonable prospect of success at trial.

All three requirements must be satisfied: Regency Rolls v Carnall [2000] EWCA Civ 379.

The initial hearing of a possession claim is not a trial for the purposes of CPR 39.3 (1) it is rather a summary process of determination and decision. However CPR 3.1(2)(m) ( under which the court may take any other step or make any other order for the purpose of managing the case and furthering the overriding objective) is wide enough to give the court power to set aside the possession order if in its discretion, it considers that the interests of justice demand it i.e. furthering the overriding objective: Forceclux v Binnie [2010] HLR 20. In that case the claim form in respect of a possession claim under Pt 55 was served at the premises in question; because the defendant was then living elsewhere, those proceedings did not immediately come to his attention, he did not attend the first hearing of the claim and, accordingly, an order for possession was made in his absence. That hearing at which the order had been made had not been a “trial” thereby permitting an application to set it aside under r.39.3 (Failure to attend the trial); nevertheless the Court of Appeal exercised its discretion to set aside the possession order under r.3.1(2)(m) (having applied the principles of r.3.9 by analogy).

However in the absence of some unusual and highly compelling factor the court should generally apply the requirements of CPR 39.3(5) by analogy: Hackney v Findlay [2011] HLR 15. In Findlay the tenant failed to attend the first court hearing and an order was made in his absence; that order was subsequently set aside on the ground that the court had been misled as to the amount of rent arrears and the landlord’s appeal against that setting aside was dismissed; on a second appeal to the Court of Appeal the setting aside order and the unsuccessful appeal therefrom were themselves set aside and the matter was remitted back to a district judge to resolve all outstanding issues.

If each of the hurdles in CPR 39.3.5 is crossed it would be a very exceptional case where the court did not set aside the order. It is a fundamental principle of any civilised legal system, enshrined in the common law and in Art 6 of the Convention that all parties in a case are entitled to the opportunity to have their case dealt with at a hearing: Bank of Scotland v Pereira [2011] EWCA Civ 241 [25].

If you are going to make an application to set aside pursuant to these provisions it is vital that you include a draft defence so that the court can better assess the reasonable prospect of success criteria.

Note also that there is a freestanding right to apply to set aside an order made on the papers pursuant to the accelerated possession procedure: CPR r 55.19. This is important because private landlords regularly either deliberately or inadvertently mislead the court about deposit protection.

Seeking to set aside where the client attended the possession hearing

CPR 3.1(7)

The court’s power to vary or revoke an order under CPR 3.1(7) has been the subject of a line of recent jurisprudence beginning with the oft-cited dicta of Patten J in Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen [2003] EWHC 1740 (Ch) at (7).

The Deputy Judge exercised a discretion under CPR Part 13.3. It is not open to me asa Judge exercising a parallel jurisdiction in the same division of the High Court to entertain what would in effect be an appeal from that order. If the Defendant wished to challenge whether the order made by Mr Berry was disproportionate and wrong in principle, then he should have applied for permission to appeal to the Court ofAppeal. I have been given no real reasons why this was not done. That course remains open to him even today, although he will have to persuade the Court ofAppeal of the reasons why he should have what, on any view, is a very considerable extension of time. It seems to me that the only power available to me on this application is that contained in CPR Part 3.1(7), which enables the Court to vary or revoke an order. This is not confined to purely procedural orders and there is no real guidance in the White Book as to the possible limits of the jurisdiction. Although this is not intended to be an exhaustive definition of the circumstances in which the power under CPR Part 3.1(7) is exercisable, it seems to me that, for the High Court to revisit one of its earlier orders, the Applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before him. The latter type of case would include, for example, a case of material nondisclosure on an application for an injunction. If all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done, in my judgment, in the context of an appeal. Similarly it is not, I think, open to a party to the earlier application to seek in effect to re-argue that application by relying on submissions and evidence which were available to him at the time of the earlier hearing, but which, for whatever reason, he or his legal representatives chose not to employ. It is therefore clear that I am not entitled to entertain this application on the basis of the Defendant’s first main submission, that Mr Berry’s order was in any event disproportionate and wrong in principle, although I am bound to say that I have some reservations as to whether he was right to impose a condition of this kind without in terms enquiring whether the Defendant had any realistic prospects of being able to comply with the condition.

 Since 2003, the High Court and Court of Appeal have each had cause to revisit the circumstances in which a party may invoke CPR 3.1(7) to vary or revoke an order, rather than appealing. The circumstances are narrowly confined. See:

Collier v Williams [2006] EWCA Civ 20; [2006] 1 WLR 1945 at (119-120):

The possibility of recourse to CPR r 3.1(7) remains to be considered. As we have said earlier, this rule gives a very general power to vary or revoke an order. It appears to be unfettered. But it is a wrong exercise of this power to vary or revoke an order where there has been no material change of circumstances since the earlier order was made and/or no material is brought to the attention of the second court which was not brought to the attention of the first. A party who unsuccessfully deploys all his material before a court should not be allowed to have a second bite of the cherry merely because he failed to succeed on the first occasion. We refer to paras 39 and 40 above and our approval of the observations of Patten J in Lloyds Investment (Scandinavia) Ltd v Christen Ager-Hanssen [2003] EWHC 1740 (Ch) . Mr Sharp submits that the mere fact that an application is refused without a hearing is a sufficient reason for requiring CPR r 3.1(7) to be construed as enabling a court to vary or revoke an order even where no new material is deployed by the applicant. He says that any other interpretation is inconsistent with article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms , as scheduled to the Human Rights Act 1998 . We disagree. The existence of the right of appeal adequately protects an applicant's article 6 rights. Moreover, if an applicant reasonably considers that an oral hearing is necessary to explain the point properly, the court will usually accommodate a request for a hearing. At para 38 above, we warn of the dangers of making an application for the grant of an extension of time for the service of a claim form without a hearing.

 In short, therefore, the jurisdiction to vary or revoke an order under CPR r 3.1(7) should not normally be exercised unless the applicant is able to place material before the court, whether in the form of evidence or argument, which was not placed before the court on the earlier occasion.

See also:

Latimer Management Consultants Ltd v Ellingham Investments Ltd [2006] EWHC 3662 (Ch); [2007] 1 WLR 2569

Edwards v Golding [2007] EWCA Civ 416; [2007] TLR May 22 at (23-24)

Business Environment Bow Lane Ltd v Deanwater Estates Ltd [2009] EWHC 2014 (Ch); [2009] Costs LR 672

In Roult v North West Strategic Health Authority [2009] EWCA Civ 444; [2010] 1 WLR 487 the claimant, having been starved of oxygen at birth as a result of medical negligence, was severely disabled and would never be able to look after himself. In an action brought when he was approaching adulthood the claimant claimed damages against the defendant health authority, which conceded liability. A settlement was agreed between the parties, damages being assessed on the basis that the claimant would live in a local authority group home with other disabled adults. The order approving the settlement provided that the future costs of care would be quantified later because the costs of the group home were uncertain. The claimant moved into a group home but after a short time was removed from it by his parents who thought it unsuitable. The claimant subsequently served a revised schedule of his future care costs, calculated on the basis that he would live in privately obtained accommodation with privately engaged carers. The defendant referred back to the judge the issue whether his order precluded the claimant from pursuing the revised claim. The judge held that the care costs associated with the claimant residing in an individual care home did not fall within the matters which had been reserved for future consideration, and that there was no power to reopen the order approving the settlement.

The Court of Appeal held that the court's power under CPR r 3.1(7) was not confined to purely procedural or case management orders and might extend to non-procedural but continuing orders which called for revocation or variation as they continued, although the discretion it conferred would normally be exercised only where either the judge who had made the order had been misled by erroneous information or a subsequent event had destroyed the basis on which the order had been made; but that rule 3.1(7) did not apply to a final order disposing of a case, whether in whole or in part, since the interests of justice, and of litigants generally, required that a final order remain such unless proper grounds for appeal existed; that, notwithstanding that there remained issues which needed managing towards future disposal, the order approving the settlement was a final disposal of the other issues between the parties; that even if the order had fallen within the scope of rule 3.1(7) the conditions for the exercise of the discretion were in any event not fulfilled because, since it was inevitable that the predictions on which a settlement of a claim for future loss was based might later turn out to be erroneous, the abandonment of the plan that the claimant reside in a group home was not a supervening event which destroyed the basis of the order approving the settlement; and that, accordingly, the judge had not had power under rule 3.1(7) to vary his order.

In other words it's very difficult to set aside a final order - such as a possession order made following a trial!

But see Kojima v HSBC Bank plc [2011] EWHC 611 (Ch); [2011] 3 All ER 359 at (33-35) where the possibility of reopening a final order appeared still to be open although in undefined circumstances:

 Leaving aside default judgments, with their self-contained regime for setting aside, I consider that a line has to be drawn between orders for which revocation may be sought under Part 3.1(7) upon the alternative grounds first identified in Lloyds v. Ager-Hanssen and approved in Collier v. Williams on the one hand, and final orders, to which the public interest in finality applies, on the other. I consider that orders made by way of judgment on admissions fall clearly within the second of those categories. Once a party has admitted a claim, and judgment has been given against him on that claim, the other party is in principle entitled to assume that, barring any appeal, there is an end to the matter.

 It is unnecessary for me to conclude whether exceptional circumstances may nonetheless justify the revocation of variation of a final order within that second category, still less to prescribe in advance what those circumstances might be. It does not appear that Roult v. North West Strategic Health Authority was cited to Peter Smith J in ITS v. Noble Trustees . It is unnecessary for me to decide whether the truly exceptional circumstances in that case were sufficient, as Peter Smith J thought that they were, potentially to justify a wholly exceptional application of Part 3.1(7) to what he acknowledged was a final order. In the event, for other reasons, he did not make the variation sought.

 More recently, in Tibbles v SIG plc (trading as Asphaltic Roofing Supplies) [2012] 1 W.L.R. 2591 the Court of Appeal drew all this jurisprudence together in considering the breadth of the power under CPR r. 3.1(7) set out at [39] summarising the principles to be drawn from the case law as follows:

(a) CPR 3.1(7) was broad and unfettered, but considerations of finality, the undesirability of two bits at the cherry and undermining the appeal process all pointed towards curtailment of the power.

(b) Whilst there could be no absolute rule on this, CPR 3.1(7) was normally appropriate only in cases involving a material change in circumstances or a misstatement of the facts underpinning the original decision.

(c) The previous caselaw on CPR 3.1(7) (and the judgment) should not be read as if they were a statute with exhaustive definitions.

(d) Context was everything and all cases would turn on their facts.

(e) Having said that, it was unlikely that merely thinking of a new argument would be a good reason to use the power.

(f) Manifest mistake might, however, be one example of a situation where the power should be used.

(g) It would normally take something “out of the ordinary” to lead to variation or revocation, especially in the absence of a change of circumstances.

However, Rix LJ further observed:

 Thus it may well be that there is room within CPR r 3.1(7) for a prompt recourse back to a court to deal with a matter which ought to have been dealt with in an order but which in genuine error was overlooked (by parties and the court) and which the purposes behind the overriding objective, above all the interests of justice and the efficient management of litigation, would favour giving proper consideration to on the materials already before the court. This would not be a second consideration of something which had already been considered once (as would typically arise in a change of circumstances situation), but would be giving consideration to something for the first time. On that basis, the power within the rule would not be invoked in order to give a party a second bite of the cherry, or to avoid the need for an appeal, but to deal with something which, once the question is raised, is more or less obvious, on the materials already before the court.

I emphasise however the word “prompt” which I have used above. The court would be unlikely to be prepared to assist an applicant once much time had gone by. With the passing of time is likely to come prejudice for a respondent who is entitled to go forward in reliance on the order that the court has made. Promptness in application is inherent in many of the rules of court: for instance in applying for an appeal, or in seeking relief against sanctions (see CPR r 3.9(1)(b) ). Indeed, the checklist within CPR r 3.9(1) must be of general relevance, mutatis mutandis, as factors going to the exercise of any discretion to vary or revoke an order.

A recent example of misleading the court (although not apparently couched in terms of CPR 3.1(7)) in a possession claim was St Hilaire v Katzenberg - Central London County Court , 25 June 2015. St Hilaire was an assured tenant. The landlord sought to increase the rent by serving a notice pursuant to HA 1988,s.13 and then sought to pursue possession proceedings based on rent arrears. At the possession hearing the claim for possession was dismissed on the basis that the s.13 procedure did not apply to the tenancy agreement (Contour Homes Ltd v Rowen [2007] EWCA Civ 842). The decision was not appealed and the landlord instead issued fresh proceedings. The matter went before a different judge who made an order for possession under HA 1988 Sch 2 Ground 8. The tenant appealed. The landlord applied to the High Court for a writ of possession and the tenant was evicted. At the appeal the Recorder found that the possession claim was an abuse of process. Although the tenant's defence had not addressed the question of res judicata it had been incumbent on the landlord and her representatives to inform the court that there had been a previous possession claim on the same basis.

 

Set aside based on lack of capacity

Another basis for setting aside a possession order and indeed the warrant whether the tenant attended the possession hearing or not is that he/she did not have capacity at the time that the order was made. This will often be necessary if you want to run an Equality Act defence /counterclaim.

The test of litigation capacity is found in the case of Masterman- Lister v Brutton [2002] EWCA Civ 1889; [2003] 1 WLR 1511 (recently approved in Dunhill v Burgin [20134] UKSC18).The test is whether or not a party to legal proceedings is capable of understanding with the assistance of such proper explanation from legal advisors and experts in other disciplines as the case requires, the issue on which her consent or decision is likely to be necessary in the course of the proceedings. She needs to be able to understand the relevant issues and be able to give instructions thereon. See in more detail the test of mental capacity set out in Mental Capacity Act 2005, ss2 and 3.

In Masterman the Court of Appeal also confirmed that where there are potential issues of capacity these should be investigated at the first opportunity.

CPR 21 provides protection for litigants who are protected parties.

CPR 21.2 (1) states that a protected party must have a litigation friend to conduct proceedings on her behalf.

CPR 21.3(3) states that if during proceedings a party lacks capacity to continue to conduct proceedings no party may take any further step in the proceedings without the permission of the court until the protected party has a litigation friend – This illustrates the potential fluidity of the situation as regards capacity.

Further under CPR 21.3 (4) any step taken before a protected party has a litigation friend has no effect unless the court orders otherwise. In other words any orders made at a time when a protected party did not have a litigation friend are liable to be set aside.

It is right that depending on the facts of the case the court can regularise the position retrospectively:

Providing everyone has acted in good faith and there has been no manifest disadvantage to the party subsequently found to have been a patient at the relevant time I cannot envisage any court refusing to regularise the position. To do otherwise would be unjust and contrary to the overriding objective of the Civil Procedure Rules, but in any given case the ultimate decision must depend on the particular facts. In the context of litigation, rules as to capacity are designed to ensure that plaintiffs and defendants who would otherwise be at a disadvantage are properly protected, and in some cases that parties to litigation are not pestered by other parties who should be to some extent restrained. However, finality in litigation is also important, and the rules as to capacity are not designed to provide a vehicle for reopening litigation which, having apparently been properly conducted (whatever the wisdom of the individual decisions in relation to it), has for long been understood to be at an end.

Masterman at [31].

As a representative of a vulnerable, disabled tenant who is facing eviction or who has already been evicted you can usually satisfy the test of manifest disadvantage. If the position is regularised the landlord would be able to render an extremely vulnerable person at risk of losing their home at a time when he/she was not protected by the rules. Had he/she been so protected with a litigation friend such as the OS it is likely that defences would have been run on his/her behalf in relation to the Equality Act.

A recent successful example of an application to set aside based on capacity was Poplar HARCA v White:

The Defendant was a single man in his late twenties with a diagnosis of Depressive Disorder with Psychotic Symptoms. He has been known to secondary mental health services since 2008 when he presented via Psychiatric Liaison A&E Royal London Hospital following a suicide attempt. He had symptoms of severe depression and schizophrenia and borderline psychosis. In 2009 he again attempted suicide. At this stage he was diagnosed with a Paranoid Hallucinatory Illness when he was smoking cannabis and drinking excessively.

In or around May 2010 the Defendant fell into rent arrears. The Claimants, Poplar Harca had some difficulty engaging with him. They made several visits to the premises and left cards. The Defendant failed to give access for the Claimant to carry out a gas inspection on 15th December 2010 which was indicative of his failure to properly manage his affairs.

In January 2011 the Defendant suffered a marked deterioration in health and had a complete breakdown. He was not opening mail or leaving the premises. He was referred back to Mile End Hospital. Meanwhile the Claimants brought an injunction claim based on the Defendant’s failure to give access and also brought a possession claim based on rent arrears. The Defendant’s housing benefit had ceased due to his failure to correspond. The Defendant did not attend the possession hearing and an outright order was granted on 8th March 2011. The Defendant’s sister, discovered the possession order and contacted the Claimants. She told them that she had been to the Defendant’s flat which was messy. She told them that she was worried about his mental health issues. On meeting the Claimants she told them that her brother had mental health problems and had been discharged at the end of the previous year by the Mental Health team as they felt he was improving. She was concerned that this was not the case and thought his condition had deteriorated again and had referred him back for further assessment. The Defendant’s sister was asked to get a medical report.

The Claimants telephoned the Defendant’s sister and told her that he was going to be evicted on 17th May 2011.The Claimants were sent a letter written by the Defendant's GP on 4th May 2011 stating inter alia that the Defendant suffered from mental health issues and in the recent months he had been deteriorating” hence the inattention to his personal life…any assistance that could give him would be greatly appreciated”.

On 12/5/11 the Claimant voluntarily withdrew the warrant of possession. Unfortunately the Defendant’s housing benefit ceased again and arrears again accrued. On 20th September 2011 Mile End hospital contacted the Claimants to say that the Defendant was under their care. The Defendant’s sister had not received messages about the Defendant’s housing benefit and had gone to the premises and found letters in the Defendant’s cupboard.

In March 2012 the Defendant’s sister discovered a notice of eviction dated for 16th March 2012. She contacted the Claimants to ask what was going on. She was told that matters had gone too far, that a warrant had been issued and it could only be stopped if three quarters of the rent was paid in a lump sum. She contacted solicitors as she was unable to pay this sum. An application was made to suspend the warrant and for a determination of the Defendant’s capacity. On 13th March 2012 the Defendant’s solicitors wrote to the Claimants expressing concern that a warrant had been sought notwithstanding the fact that the Claimants knew about the Defendant’s condition. The Claimants were asked to withdraw the warrant.

On 12th April 2012 the Defendant’s solicitors wrote to the Claimants to ask them to take urgent steps to ensure that advice and support was provided in accordance with their Support and Inclusion Strategy. They also asked to be contacted if any further legal proceedings were planned.

In November 2012 the Defendant stopped taking his medication. He suffered a deterioration in health and was unable to attend appointments with the DWP as a result his benefit claim was sanctioned. The Claimants tried to contact the Defendant’s sister without success in December 2012 and they were told by the housing benefit department that the Defendant had not provided a form.

On 9th September 2013 and 23rd September 2013 the Claimants tried to visit the premises with a Family Intervention Officer but could not get access. Thereafter the Claimants again instructed the bailiff to evict the Defendant from his home.

On 26th November 2013 the Defendant started taking medication again which improved his condition. On 3rd December 2013 he went to see his housing officer at her Office. She told him he was going to be evicted on 6th December 2013. The Defendant’s solicitors had not been notified despite their request in their letter of 12th April 2012. The Defendant told his housing officer about his mental health problems and the problems he had been having in managing his affairs and that he had not been opening letters. The Defendant was advised to make an urgent application to court. This was made on 5th December 2013.

On 6th December 2013 the Defendant’s solicitors wrote to the Claimants to express concern about the eviction warrant and the fact that the Claimants had not contacted them.

The Defendant's solicitors obtained a report from a consultant psychiatrist who decided inter alia:

  • That the Defendant’s rent arrears were connected to his illness.
  • That the Defendant did not have capacity to manage his own affairs – he was registering and retaining some information but was unable to manage the situation because of the severity of his depressive symptoms and psychotic symptoms.
  • That the Defendant had a similar presentation in 2011 and was likely to have lacked capacity in 2011 when the original possession order was made.
  • That it was clear that the Defendant was suffering from a disability namely depressive psychosis a lifetime diagnosis.

Upon further questioning by the Claimants the psychiatrist found inter alia:

  • That the Defendant’s failure to pay rent was closely connected with the consequences of depressive illness which also prevented him from claiming benefits.
  • That there was much that the landlord could do to assist the Defendant in paying the rent for example by having a community worker as a link between the landlord and the patient- the Defendant’s sister had thus far been providing the link.

On 16th January 2014 the Defendant’s solicitor wrote to the Claimants asking them to withdraw the proceedings in light of the psychiatrist's report. The Claimants’ solicitors refused in a letter dated 28th April 2014.

In a letter dated 2nd July 2014 to the Claimants’ solicitors the Defendant’s solicitors asked what steps the Claimants would be taking to assist disabled tenants such as the Defendant to ensure that they were not discriminated against. The Claimants were reminded that they had been asked to refer the Defendant to the adult social services department of the local authority. No substantive response was received.

On 21st January 2015 District Judge North heard the Defendant’s application to set aside the possession order. On 4th February 2014 he gave judgment in favour of the Defendant setting aside the possession order and giving directions for trial. He accepted the psychiatrist's evidence that the Defendant did not have capacity at the time the possession order was made. The trial was listed to be heard on the 2nd and 3rd July 2015.

At trial it was argued that the Claimants had failed to follow their own Support and Inclusion Strategy despite repeated letters from the Defendant’s solicitors that they should do so. In particular they had failed to refer the Defendant’s case to the vulnerability panel and had in effect treated the Defendant like any other rent arrears case. There was a pattern of the Defendant becoming well then failing to take his medication and deteriorating again. During periods of deterioration in his health the Claimants had difficulty making contact with the Defendant and the Defendant failed to engage with housing benefit and his arrears increased. The Claimants knew about the Defendant’s disability because they were informed about it by his sister in March 2011 who was concerned for his welfare.

At the date of the trial the Defendants housing benefit had stopped and his arrears were over £5000. District Judge Dixon dismissed the possession claim and ordered the Claimant to pay damages for discrimination of £4500 and the Defendant’s costs. He was particularly critical of the Claimants’ failure to follow their own policy in the Defendant’s case.

Submissions on damages were based on Vento v Chief Constable for West Yorkshire [2002] EWCA Civ 1871. In that case the Court of Appeal identified three broad bands for compensation for injured feelings as follows:

(i) The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000. (ii) The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band, (iii) Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings

The bands have since been uprated to take account of inflation, to £18,000-£30,000, £6,000-£18,000, and up to £6,000 respectively (see Da’Bell v National Society for the Prevention of Cruelty to Children [2010] I.R.L.R. 19).

In the White case it was submitted that although the case lay within the lower band it was a case of persistent and repeated default. The Defendant’s sister and his solicitors had repeatedly sought to persuade the Claimant that this was not an appropriate case to seek eviction. It was patently clear that the Defendant’s rent arrears were closely connected with fluctuations in his health. The Defendant was exactly the sort of person that should be protected under the Act. It is not appropriate for the Claimant to adopt a course identical to that of its other tenants without disabilities. The Defendant had faced the prospect of eviction for years. It was difficult to estimate the stress that he will have been caused due to the uncertainty particularly in times when he was already very unwell.

 Oppression

“… oppression may be very difficult if not impossible to define, but it is not difficult to recognise. It is the insistence by a public authority on its strict rights in circumstances which make that insistence manifestly unfair. The categories of oppression are not closed because no-one can envisage all the sets of circumstances which could make the execution of a warrant for possession oppressive.”

 Southwark L.B.C. v. Sarfo (1999) 32 H.L.R. 602, CA, at 609, per Roch L.J.

This is an interesting area of judge made law. It is often a high hurdle to surmount to show that there has truly been oppression in the execution of the warrant. Much depends on the particular facts and circumstances of the case. Evidence gathering at an early stage is therefore vital. The cases in which the facts are as clear as you want them are few and far between. e.g the housing officer promises not to evict and then goes ahead and evicts. Most social landlords are aware of the requirements to inform the tenant of their rights to seek a suspension of warrant.

Remember that the categories of oppression are not closed Camden v Akanni (1997) 29 H.L.R. 845 - so there is always an opportunity to find a new angle. However there must be someone to blame. Somebody must have acted in a way which is open to criticism Jephson Homes Housing Association v Moisejevs (2001) 33 HLR 54- it is not enough that its unfair that your client has been evicted!

 I would therefore reject Mr Knafler's first and main argument and hold that a possession warrant obtained and executed without fault on anyone's part cannot properly be set aside as oppressive within the Aldwinckle principle. I am not, I confess, entirely clear what Nourse L.J. meant when he said in Lemeh that oppression ought to include “any state of affairs which is oppressive to the tenant”. Either, however, he was meaning no more than that the giving of unintentionally misleading information by the court office, even if not “oppressive conduct” on anyone's part, is nevertheless “oppressive to the tenant” within the Aldwinckle principle (with which I would entirely agree), or the two sentences relied upon were obiter and, in so far as they may suggest that a tenant can be oppressively evicted without any fault on anyone's part, to my mind wrong. I accept, of course, that “the categories of oppression are not closed”, but in my judgment there cannot be oppression without the unfair use of court procedures; and something more than the mere use of the eviction process—some action on someone's part which is open to criticism—will be required before the court's procedures can be said to have been unfairly used.

Per Simon Brown LJ ( The case contains a useful summary of the caselaw)

Because the categories of oppression are not closed the caselaw is merely illustrative of the breadth of arguments that have been run. It is nonetheless useful to reflect on those well known cases.

Barking & Dagenham v Saint (1999) 31 HLR 620 CA: Claimant obtains a suspended possession order. The Defendant is then remanded in custody. He tells the HB department he is inside. They send a form to renew his HB to his home!. HB ceased and the Claimant evicts him. The Court of Appeal set aside the warrant on the basis of oppression. The Claimant had been relying on their own wrong. They knew he was not aware of the impending eviction and could not apply to suspend the warrant.

Southwark v Sarfo (1999) 32 HLR 602: tenant made an application for HB. Her housing officer sent her a copy of a report that said "stop court proceedings please". Her HB was delayed and the warrant was executed. Court of Appeal set aside the warrant on the basis of oppression. Tenant was entitled to conclude from the report that no further steps would be taken until her HB was sorted. Also authority had failed to comply with their own policies on rent arrears.

Lambeth v Hughes (2001) 33 HLR 33 CA - failure to indicate the possibility of relief under HA 1985,s.85(2) in either the notice of eviction or through advice obtained from housing officer was oppressive. Also failure by a bailiff to warn the tenant of the eviction in enough time for her to act on it was itself oppressive.

Hammersmith LBC v Lemeh [2001] 33 HLR 23,CA tenant received a warrant of possession and went to the court office to seek a stay. The court staff told him that there was no outstanding warrant . This was wrong. He was evicted. The Court of Appeal held that oppressive conduct is not confined to the conduct of the landlord but could include any state of affairs which were oppressive to the tenant ( but see Moisejevs above).

Jephson Homes HA v Moisejevs (2001) 33 HLR 54: tenants paid off the arrears but did not apply to the court to suspend the warrant. The warrant was executed. In the Court of Appeal the tenants argued that an end result which was unfair to the tenant was sufficient to establish oppression. The Court of Appeal rejected this argument - see above.

Circle 33 v Ellis [2006]HLR 7 - no oppression as the housing association had done all that could reasonably have been expected of it: had made inquiries of the local authority as to the Defendant's entitlement to HB; had given the Defendant as opportunity to assist in resolving the problem at a pre-eviction meeting he didn't attend and had complied with the relevant HC guidance. In any event the failure to comply with a regulatory circular , even one incorporated into the tenancy agreement could not amount to oppression unless it had some causative effect on the tenant, whether misleading or obstructing the exercise of his rights prior to the eviction.

For a recent example see: London and Quadran HA v Watson Central London County Court,31 October 2014 ( LAG May 2015). Mr Watson was an assured tenant. He had arrears of over £4k. A suspended possession order was made. Following problems with HB he breached the order. A warrant was issued. While he was in the process of seeking to suspend the warrant it was executed. He had received no notice of the eviction. The DJ rejected his application for re-entry stating that there was no right to be notified of the eviction and this could not amount to oppression. HHJ Saggerson allowed the appeal. The DJ was wrong not to consider the various circumstances in which oppression could arise and prejudice the tenant. These included the lack of service of a notice. Although he was correct that there were no rules- based requirement to serve a notice, the DJ's approach was flawed because he did not take into account the importance of the N54 notice of eviction.

So in summary to pursue an oppression application:

  • Look closely at the evidence.
  • Identify the act or omission that can be criticised.
  • Identify how the said act or omission has prejudiced the evicted party.
  • Prepare a detailed witness statement to accompany the re-entry application.

Abuse of process

For detail under this category in particular in relation to applications for warrants after 6 years see Sarah's paper.

See also Nicholas v Secretary of State for Defence, Chancery Division, 24 August 2015, where the application for permission to enforce the writ in the High Court did not mention that the Supreme Court had granted an extension of time to lodge an application for permission to appeal. The High Court held that the omission of that information was important because it was something that should have been considered when deciding whether to grant permission. Further there had been an abuse of process by failing to give notice of the application for permission contrary to CPR 83.13.

See also the recent NearlyLegal campaign against the use of form N293A to apply for writs of possession against tenants . The form is supposed to be used for trespassers and does not require the permission of a High Court Judge, or indeed notice to the occupiers of proceedings (in the High Court) under CPR 83.13(8)(a).

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