Brooker Wilson v Sandi St Paul
| Jurisdiction | England & Wales |
| Judge | Coe,JUDGE |
| Judgment Date | 13 October 2017 |
| Neutral Citation | [2017] EWHC 3510 (QB) |
| Court | Queen's Bench Division |
| Date | 13 October 2017 |
| Docket Number | Case No: IHQ17/0452 |
[2017] EWHC 3510 (QB)
IN THE ROYAL COURTS OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London
WC2A 2LL
HER HONOUR JUDGE Coe QC
(Sitting as a Judge of the High Court)
Case No: IHQ17/0452
Mr S Sinnett (instructed by Beauchamps) appeared on behalf of the First Defendant/Applicant
Mr T Walker (instructed by Riaa Barker Gillette (UK) LLP) appeared on behalf of the Claimants/Respondents
(As Approved)
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BACKGROUND/HISTORY
Mary Wilson died intestate in 2008. Her sisters who are the claimants in this case became the administrators of her estate. Mary Wilson owned a property, Flat 10C Hyde Park Mansions Cabbell Street London where she had lived for some years with her partner, Sandi St Paul who is the first defendant in these proceedings. The claimants sought to realise the property for the estate and the first defendant claimed a beneficial interest. These proceedings resolved following mediation and by consent and an agreement put into effect by Tomlin order made on 9 October 2012. That order is at page 15 in the claimants' bundle (I will refer to the documents by reference to the pagination in the claimants' bundle save where I indicate otherwise). The order provides that the defendant has a 50% beneficial interest in the equity in Flat 10C and the schedule set out the agreement between the parties to the effect that the first defendant was to buy out the claimants' interest in the property by 3 October 2013 failing which she would deliver vacant possession of the property to the claimants by 10 October 2013. The rest of the order provided for the details of the marketing, conveyancing, payment and indemnities et cetera to realise this agreement.
By 14 November 2013 the first defendant had neither raised the funds to buy the claimants out nor delivered up vacant possession and so pursuant to the claimants' application on 16 June 2014 District Judge Avent made a possession order and transferred the matter to the High Court for execution (p18). The first defendant's application to set that order aside was unsuccessful and with the assistance of High Court enforcement officers the claimants recovered possession of the property in January 2015. The first defendant re-entered the premises and the claimants brought proceedings in trespass. An order for possession was made by District Judge Lightman on 17 March 2016 (p19). The first defendant was refused permission to appeal that order and a renewed application for permission was also refused whereupon the claimants sought to enforce the order for possession.
Following a request by email from the first defendant's representative, Vivian Hobbs, to agree a stay until the end of August in order to allow the first defendant to vacate 10C in an orderly manner, solicitors for the claimants agreed that the first defendant could have until 31 August 2017. The first defendant did not vacate by that date and on 4 September 2017 a writ of possession was granted and High Court enforcement officers were instructed to execute the possession order. It was executed on eighth September and the first defendant (together with others) was evicted from the property.
By application notice dated 11 September 2017 the first defendant applied to set aside the warrant for possession “on grounds of abuse of process, mistake, misleading of the court and breach of the law”. The grounds to that application set out firstly that the writ was made in error enforcing against the wrong property where it includes another property, namely flat 10H as well as 10C. Secondly it is contended that in breach of the law the tenants of 10C were provided with no notice of the writ. Thirdly it is alleged that the claimants' solicitor Mr Mohammed Khanzada swore a false statement in support of the writ claiming not to have heard from the defendant and finally that no application to transfer proceedings to the High Court appeared to have been made in respect of the writ and any such order had not been served on the defendant or her tenants.
For clarification, I should mention at this stage that the first defendant owns flat 10H which is on the floor above flat 10C. The claimants have no interest in it.
That urgent ex parte application came before Master Thornett on 11th September (the same date as the application) and his order is at page 4 in the bundle. The master noted that following execution of the writ the defendant's application should have been for re-entry. He was satisfied that the first defendant was currently “substantially hindered” in the proper and full presentation of the application because her papers and essential personal possessions were still at Flat 10C. He therefore ordered that the first defendant be afforded access to the flat to collect her personal possessions (The claimants complied with that Order and the first defendant (and others) was allowed access by the bailiffs on 13 th September for that purpose). He ordered permission to treat the first defendant's application as including an application for re-entry and adjourned it generally with permission to restore upon application by the defendant supported by full witness statement and on notice.
This is the application which I heard on fifth October.
FIRST DEFENDANT'S CASE
As per paragraph 1 of the skeleton argument “it is the first defendant's case that the claimants failed to give her and the other defendants notice of the application seeking permission to issue a writ of possession pursuant to CPR 83.13 (two) and (eight) and accordingly the writ of possession should be set aside and the first defendant allowed to re-enter 10C.”
“Further it is the first defendant's case that the writ of possession was invalid on its face as it misdescribed the property over [which] possession was sought”.
The first defendant relies upon the fact that no copy of the actual N244 notice was attached to the letters of first August which, given it was dated September 2017 could not have been attached in any event.
Paragraph 6 of Mr Khanzada's statement (page 29) is materially inaccurate in that as evidenced by the attendance note at page 51 it was a trainee solicitor who served the purported notices and not Mr Khanzada.
Further paragraph 6 says there has been no communication and paragraph 7 refers to some but not all of the email communications with the first defendant which does not give an accurate picture of the fact that the first defendant was ready to complete on the purchase of 10C.
The first defendant says that at the highest the claimants gave notice that they intended to make an application but not the application itself.
It is of course her primary argument that CPR 83.13 eight requires notice of theapplication to be given to each and every person.
At the heart of this case therefore is the interpretation of CPR 83.13 (8). The relevant parts of CPR 83.13 (enforcement in the High Court of the judgement or order for possession of land) provides that
“(1) a judgement order for the giving of possession of land may be enforced in the High Court by… (a) a writ of possession (2) a writ of possession to enforce a judgement order for giving of possession of any land… Will not be issued without the permission of the court… (4) an application for permission under paragraph (3) [which relates to possession claims against trespassers] may be made without notice being served on any other party unless the court orders otherwise… (8) Permission referred to in paragraph (2) will not be granted unless it is shown (a) 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…”
A witness statement from Mr Khanzada dated 1 September 2017 (pages 28 and 29) was filed in support of the claimants' application (p26 and 27). At paragraph 6 of the witness statement Mr Khanzada said that he had complied with CPR 83.13 (eight) “by providing the defendants and the occupiers notice of the intention to apply to the Queen's bench division of the High Court for permission to issue a writ of possession”. He went on to say, “but had not heard from them at all”. At paragraph 7 however, he states “the first defendant who is in occupation proposed a temporary stay of enforcement of the writ of possession on 3 August 2017 and this was accepted. He annexed copies of the relevant emails and “a series of further emails” which were sent on ninth and 10th of August and final terms set out an email 14th of August.
He also annexed copies of the prescribed...
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