Ivan Kaye v Amanda Lees
| Jurisdiction | England & Wales |
| Judge | Mr David Lock |
| Judgment Date | 31 March 2023 |
| Neutral Citation | [2023] EWHC 758 (KB) |
| Docket Number | Case No: QB 2022 02296 |
| Court | King's Bench Division |
[2023] EWHC 758 (KB)
Mr David Lock KC,
(sitting as a Deputy Judge of the High Court)
Case No: QB 2022 02296
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Simon Braun of Perrin Myddelton for the Applicant
No appearance for the Respondent
Hearing date: 27 March 2023
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date for hand-down is deemed to be on 31 March 2023.
Mr David Lock KC, sitting as a Deputy Judge of the High Court:
This is an application by Mr Ivan Kaye (“ Mr Kaye”) to extend the period of an injunction granted by HHJ Dight CBE, sitting as a Judge of the High Court, on 27 January 2023 to restrain the Defendant, Ms Amanda Lees (“ Ms Lees”) from making an application to a debt advisor for a mental health moratorium under the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020 (“ the Regulations”) unless, in effect, she has obtained prior approval from a Judge of the High Court. I have come to the conclusion that I should refuse to extent the injunction for the reasons set out below.
The facts
This matter has a long and unfortunate history which is summarised in a series of decisions of the County Court and the High Court. In order to set the present application in context it is necessary to explain something of the history of the litigation. There are three prior high Court judgments namely Lees v Kaye [2022] EWHC 1151 (QB) (a judgment of HHJ Dight CBE sitting as a Judge of the High Court), Kaye v Lees [2022] EWHC 3326 (KB) (a judgment of Swift J) and Lees v Kaye [2022] EWHC 1151 (QB) (a second judgment of HHJ Dight CBE). The order I am asked to extend was made by HHJ Dight in January 2023 as part of the order following [2022] EWHC 1151 (QB).
This litigation started when Mr Kaye sued Ms Lees in the county court in nuisance and under section 3 of the Protection from Harassment Act 1997. Ms Lees counterclaimed for damages for nuisance and/or harassment. Those claims arose from the parties' respective residence in flats at 8 Leysfield Road London, W12. Mr Kaye was the leaseholder of the first floor flat; Ms Lees, the leaseholder of the ground floor flat (“ the Flat”). On 30 July 2018 HHJ Roberts, sitting at Central London County Court, found in favour of Mr Kaye and dismissed the counterclaim made by Ms Lees. In a further judgment handed down on 18 January 2019, Judge Roberts awarded Mr Kaye £96,963.00 in damages, and ordered Miss Lees to pay £50,000 on account of costs. Both sums were to be paid by 1 February 2019.
The damages and costs were not paid by Ms Lees and remain owing at the date of this judgment. The First Respondent applied for and was granted an order for sale of Ms Lees' leasehold interest in the Flat in order to enforce the damages and costs order. Mr Kaye then brought separate proceedings for possession of the Flat in in the Willesden County Court.
Ms Lees made her first application under the Regulations, namely for a Breathing Space Moratorium (“ BSM”), on 30 June 2021. That application was made shortly before a possession order was due to enforced. That application was granted by a debt advisor and so a moratorium came into existence for a period of 60 days from 1 July 2021 to 29 August 2021: see Regulation 26(2). A further writ of possession was ordered and due to be executed on 27 October 2021. That writ was not executed because an Approved Mental Health Professional (“ AMHP”) confirmed Ms Lees' eligibility for a Mental Health Crisis Moratorium (“ MHCM”) on 26 October 2021 and the Applicant applied for and was granted a MHCM by a debt advisor. That moratorium was effective until 25 December 2021. As a result of the MHCM, the High Court Enforcement Officers declined to execute the Writ of Possession in October 2021.
By an application notice dated 22 November 2021 issued in the county court at Central London, purportedly in the Charging Orders Claim notwithstanding the fact that transfer of the order made in that claim had been transferred to the High Court, Mr Kaye sought permission to take enforcement action despite the existence of a moratorium. The application came before His Hon Judge Luba QC on paper and he dealt with the matter without a hearing. He struck out the application by his order made on 21 December 2021 but drawn on 6 January 2022 and gave detailed reasons for his decision, which included the following:
“ 6) The solicitors for the Claimant believe that the moratorium was wrongly imposed. They contend that the debt is not a qualifying debt because it is a “non-eligible debt” for the purposes of regulation 5(4)(i) which include “any debt which consists of a liability to pay damages for negligence, nuisance or breach of a statutory, contractual or other duty, or to pay damages by virtue of Part 1 of the Consumer Protection Act 1987…, being in either case damages in respect of any death of or personal injury (including any disease or other impairment of physical or mental condition) to any person.”
7) It is unclear how the solicitors contend that this debt in this case is within the italicised words.
8) Faced with the unsuccessful review, the Claimant had two choices: (1) dispute the review result and apply to the Court for cancellation of the moratorium (regulation 19); or (2) accept that the moratorium had been correctly applied but seek permission to take certain steps notwithstanding it (regulation 7).
…
10) It is equally unclear why, as enforcement is in the High Court, application has been made to the county court. The High Court has appropriate jurisdiction in these matters and since the matter of enforcement is with the High Court and in the hands of the HCEOs the application ought properly to have been made to that Court: see Axnoller Events Ltd v Brake (mental health crisis moratorium) [2021] EWHC 2308 (Ch).”
Mr Kaye's solicitors then waited for the MHCM to expire on 25 December 2021 and obtained a fresh appointment for execution of the Writ of Possession. On 5 January 2022 the Applicant was told that it had been diarised for execution on 13 January 2022.
On 12 January 2022 Mr John McGovern, an AMHP, certified that the Applicant was receiving mental health crisis treatment and she was granted a further MHCM. However, notwithstanding the existence of a current MHCM, possession of the Flat was taken on 13 January 2022 pursuant to a writ of possession issued in the High Court. Thus, Ms Lees was required to leave the Flat despite the existence of a current MHCM.
Mr Kaye's solicitors then moved to an exchange of contracts to sell the Flat and completion of the sale of the Lease of the Flat to Ms Chelsea Dixon, for £505,000 took place on 10 March 2022. The mortgage held by Ms Lees over the Lease was discharged by the mortgagor, Santander, and the balance of the proceeds of sale were passed to Mr Kaye's solicitors.
On 12 February the MHCM expired but a further moratorium was granted on 15 February.
After being evicted from the Flat, by an application notice dated 24 February 2022, Ms Lees sought a declaration that execution of the Writ of Possession was null and void and sought an order from the court that she could return to live at the Flat despite not having paid any monies to Mr Kaye. Her application was made under regulation 7(12) of the Regulations alleging that a MHCM was in place to protect her at the time of execution of the writ and that she therefore ought not to have been evicted. That application came before HHJ Dight CBE on 30 March 2022, with a written judgment being handed down on 13 May 2022. In summary, the Judge granted Ms Lees' application and declared that the sale to Ms Dixon was null and void. The Judge allowed Ms Lees to re-occupy the Flat.
The MHCM granted on 15 February 2022 lapsed on 6 November 2022. On 7 November 2022 a further application for a MHCM was made by Ms Lees and it was granted by the debt advisor on 8 November 2022. Prior to these events, Mr Kaye's solicitors had applied for permission to challenge the January 2022 MHCM outside the statutory timetable in Regulation 19. That application came before Mr Justice Swift in December 2022 who decided that the court had no power to act outside of the statutory scheme and thus could not extend time to permit a challenge to the January 2022 MHCM. The Judge also declared that Mr Kaye should be subrogated to the rights held by Santander under the mortgage which had been discharged as part of the purported sale but refused an application by Mr Kaye to permit enforcement despite the existence of the MHCM.
Mr Kaye's solicitors invited the debt advisor to conduct a review of the MHCM under Regulation 17 on the basis that Mr Kaye was unduly prejudiced by the current MHCM. In his email response dated 15 November 2022 Mr Casson, the debt advisor, said that having undertaken a review the conclusion had been reached that the current MHCM should continue because, as a debt advice provider he was not in a position to challenge the assertion by the AMHP who had confirmed that Ms Lees was receiving treatment for a mental health crisis and therefore eligible for a mental health crisis moratorium and because his organisation was not in a position properly to undertake the envisaged balancing exercise to determine whether Mr Kaye had been unfairly prejudiced. Mr Casson did not disclose with his review decision any of the material on which the AMHP formed their view that Ms Lees was being treated for a mental health crisis.
Mr Kaye, through his solicitors, then applied under Regulation 17 to set aside the November 2022 moratorium. On this occasion he was within...
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