Hertfordshire County Council v Bryn Davies
| Jurisdiction | England & Wales |
| Judge | Master Sullivan |
| Judgment Date | 09 April 2020 |
| Neutral Citation | [2020] EWHC 838 (QB) |
| Court | Queen's Bench Division |
| Date | 09 April 2020 |
| Docket Number | Case No: QB-2016-004371 |
[2020] EWHC 838 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Master Sullivan
Case No: QB-2016-004371
Mr Andrew Lane (instructed by Hertfordshire County Council Legal Services) for the Claimant/Respondent
Mr Toby Vanhegan (instructed by Arkrights Solicitors) for the Defendant/Applicant
Hearing dates: 23 March 2020
Judgment Approved by the court for handing down
The claimant County Council employed the defendant as a resident caretaker at a school. He and his family lived in a bungalow tied to the employment. On 12 June 2015 his employment was terminated. The employment contract specified that the right to live in the bungalow would end on termination of employment.
After a long procedural history, the defendant and his family were evicted from the bungalow on 3 February 2020 by High Court Enforcement officers. The defendant now applies to set aside the order giving permission to issue the writ of possession, to set aside the writ of possession and to reinstate the defendant and his household into the bungalow.
Following the defendant's dismissal in June 2015, the claimant commenced possession proceedings in September 2015. A possession order was granted by Elisabeth Laing J on 21 June 2017. Possession was to be given 28 days from the date of the order. In coming to her decision Laing J heard evidence from the defendant, his wife and two of their four children.
Laing J refused permission to appeal and an application for a stay was also refused.
On 11 July 2017, the defendant applied for permission to appeal to the Court of Appeal. On 14 July 2017 the defendant's solicitor wrote to the claimant notifying them that they had made the application and requesting that the claimant confirm their instructions as to enforcement.
On 18 July 2017 the claimant replied stating that they had told the appeals office that, as the 28 days for possession had not yet elapsed, there were currently no enforcement proceedings being undertaken by the claimant.
Permission to appeal was granted by the Court of Appeal on 16 August 2017.
On 18 August 2017 the defendant's solicitors notified the claimant of the permission to appeal and asking the claimant to confirm their instructions in respect of enforcement now the 28 days had expired. There was no response to that letter.
On 29 September 2017, before the appeal was determined, the claimant made an application for permission to issue a writ of possession and control without notice to the defendant. That application did not mention that there was an outstanding appeal. No copy of the application was sent to the defendant or his family.
Master Eastman gave permission to issue a combined writ of possession and control on 29 September 2017. 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.
The Court of Appeal heard argument on 29 November 2017.
By a decision dated 6 March 2018 followed by an order dated 12 March 2018, the Court of Appeal dismissed the appeal, refused permission to appeal to the Supreme Court, and ordered that “the application for a stay on enforcement of the possession order pending any determination of any application for permission to appeal in the Supreme Court is refused.”
The decision of the Court of Appeal concerned whether the defendant could raise the claimant's public law duties as a defence to the possession order and if so whether there was any such defence. The Court of Appeal found that the defendant could raise public law defences although he had no private law right, but that there was no evidence that at the stage of deciding to give a notice to quit there were any matters relating to his own disability or his children which would have made any difference to the outcome of the possession proceedings.
On 26 April 2018 the claimant notified the defendant's solicitor that it would not agree to a stay of execution pending any application to the Supreme Court and would be seeking to enforce the possession order.
The defendant then indicated it was seeking funding to make an application for permission to appeal to the Supreme Court and the claimant agreed to defer seeking possession pending that process. The application for permission was made in December 2018. The Supreme Court refused permission to appeal on 27 June 2019.
On 27 June 2019 the claimant wrote to the defendant asking to discuss the defendant's plans to vacate the bungalow as “it would be good to avoid the need for enforcement action”.
On 1 July 2019 the claimant agreed to wait until 19 July for the defendant to reply but that they would want possession as soon as possible. It was also noted that it expected the defendant would vacate somewhere towards the end of July 2019.
During July 2019 the defendant's solicitor asked if the clamant would be willing to rent or sell the bungalow to the defendant. The claimant refused.
On 30 July 2019 the claimant wrote to the defendant's solicitor summarising the correspondence since the Supreme Court rejected the appeal and stating “On 19 th July the Council repeated its request for your client to give a voluntary departure date, and reiterated the importance of having vacant possession before the coming term. No reply has been received from you since 19 th July. In the light of the above, the Council is minded to initiate eviction proceedings without further notice.”
On 14 January 2020 a writ was issued in standard terms by the High Court. This involved no further judicial decision, but was an administrative function following the permission to issue in 2017.
On 3 February 2020 the High Court enforcement officer attended the bungalow to enforce possession. An urgent application was made that day on behalf of the defendant to “make an order suspended/setting aside the writ of possession issues and if already executed to seek an order reinstating the defendant to the property”. The evidence in support noted that no notice of the application for the writ was given nor was any notice that the writ was due to be executed that day. Reference was made to CPR 83.13(8)(a) and that no notice of the eviction was given so there was no opportunity to make an application to seek to stay or suspend the writ. The application noted that the defendant was disabled. The court was asked to stay the writ pursuant to CPR 83.7 to enable the defendant to make a full application to stay/set aside the writ.
The defendant's application was heard by Cavanagh J that day with no attendance by the claimant. The application was dismissed.
The defendant and his family approached the local housing authority (which is not the claimant) for the first time on 3 rd February 2020 for alternative accommodation as they were homeless.
The defendant and his family have since been housed by the local authority in a variety of properties; they have been housed in hotel rooms, studio flats and have had one night where the local authority was unable to house them.
Application for permission to issue a writ of possession.
Once a possession order is made in the High Court, if the defendant does not vacate the property a claimant may make an application to issue a writ of possession. The writ of possession enables the High Court Enforcement officers to enforce possession.
Permission to issue the writ must be requested and that is done by way of application to a Master under CPR 83.13 which provides (as relevant):
(1) A judgment or order for the giving of possession of land may be enforced in the High Court by one or more of the following means—
(a) writ of possession;
…
(2) Subject to paragraphs (3), (5) and (6), a writ of possession to enforce a judgment or order for the giving of possession of any land, or to enforce a notice under section 33D of the Immigration Act 2014, will not be issued without the permission of the court.
…. (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; and
…
There is a standard form of order for possession as set out above. The application for permission to issue is ordinarily made on a without notice basis (although a copy of the application notice is commonly sent to defendants prior to the application being made).
Once permission is granted,...
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