St Brice v Southwark London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kennedy,LORD JUSTICE CHADWICK,LORD JUSTICE RIX |
| Judgment Date | 17 July 2001 |
| Neutral Citation | [2001] EWCA Civ 1138 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2001/0973 |
| Date | 17 July 2001 |
[2001] EWCA Civ 1138
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM H H JUDGE COX
(Lambeth County Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Kennedy
Lord Justice Chadwick and
Lord Justice Rix
Case No: B2/2001/0973
Robert Latham (instructed by Southwark Law Centre for the Appellant)
Patrick Routley (instructed by Southwark Legal Services for the Respondent)
Cecilia Ivimy (instructed by Treasury Solicitors for the Interested Party Lord Chancellor's Department)
This is a tenant's appeal from a decision of Judge Cox sitting in the Lambeth County Court who, on 30 th March 2001, dismissed the tenant's application to set aside the warrant of possession issued by the Court which had preceeded his eviction on 31 st January 2001 from residential premises owned by the London Borough of Southwark at 156 Missenden, Inville Road, Aylesbury Estate, SE 17 2HU. On the day of his eviction the tenant sought an order that he be permitted to re-enter, and it was that application that the judge refused.
The Issue
The tenant's case is that although the local authority as landlords did follow the normal procedure which they adopted in such cases, and did not apparently contravene any County Court Rule, nevertheless their procedure, and the procedures of the Court, should have been adjusted to take account of the provisions of the European Convention on Human Rights, as implemented by the Human Rights Act 1998. In particular the issue of the warrant of possession in December 2000 should have been a judicial as opposed to an administrative act, of which the tenant should have had formal notice, so that he could, if so minded, make representations as to why the warrant should not be issued.
Chronology
That being the issue it is not necessary to deal with the history of the tenancy in great detail. Suffice to say that it began in 1992, and that in 1996, when the arrears amounted to £1559.87, the landlord served notice seeking possession. In August 1997, when the arrears amounted to £3051.42, the landlord commenced proceedings for possession in the County Court. In his defence the tenant offered to pay off the arrears at £15 per week, and in October 1997 a lower rate of re-payment was agreed and the case was adjourned. However, all did not proceed as planned, so the matter was restored for hearing on 5 th June 1998, and the Court then made an order for possession, suspended on terms, the tenant's obligation being to pay in addition to his current rent £10 per week towards his outstanding liability of £3708.7Once again there were problems, and in February 1999 the landlord applied for and obtained a warrant of possession. By a letter dated 17 th February 1999 the tenant was advised by the landlord that he would be evicted on 9 th March 1999. On 24 th February 1999 the tenant applied to the Court for what he described as "a stay of the eviction", and on 2 nd March 1999 the Court adjourned his application to 4 th May 1999, ordered him to pay £11.02 per week in the meantime, and suspended the warrant until the next hearing. On 4 th May 1999 the tenant did not appear at Court. The arrears were then £4342.64, and his application was dismissed. He was not, however, evicted at that stage. On 20 th July 1999 he made a further application that the eviction be stayed. That resulted in an order of 13 th August 1999 that the warrant be suspended on payment of current rent and £17.78 off arrears of £4126.11 with costs of £175 to be added to the arrears. In September 2000 payment of housing benefit reduced the arrears by £557.64, but again the tenant failed to maintain his payments so on 20 th December 2000 the landlord, using Form N325 and without notice to the tenant, applied to the court to issue a fresh warrant of possession. The balance due was said to be £4441.78. In fact the figure should have been £4041.78. That was, as the judge accepted, simply a typographical error. The landlord's solicitor certified that the tenant had not complied with the terms of the previous order, and the warrant was issued by some member of the court staff. On 22 nd December 2000 the landlord wrote to the tenant as follows –
"URGENT – DO NOT IGNORE THIS LETTER.
Re: EVICTION FROM 156 Missenden ON 31 st January 2001. Amount of Debt 4058.38
You have not kept to the terms of the Possession Order made against you for non payment of rent. We have applied to the Lambeth County Court to evict you from the property and the eviction will take place on 31 st January 2001. You should start looking for alternative accommodation NOW so that you will not be homeless when you are evicted.
In line with the Council's policy you may be found to be intentionally homeless due to your failure to pay rent. Under the Provisions of the Housing Act 1996 the Council will be under no obligation to rehouse you.
ACT NOW – YOU SHOULD EITHER : -
1) Pay the outstanding debt including Court Costs.
2) Seek independent legal advice from a Solicitor, Citizens Advice Bureau or an Advice Centre.
3) Make an application to Lambeth County Court. A Judge will decide whether the eviction will proceed. Please note that your application will be opposed by the Council."
On 29 th December 2000 the Lambeth County Court wrote to the tenant in similar vein. That letter headed "Eviction Notice" begins -
"As you have failed to give possession of the premises to the Claimant, or made payments as directed by the Court, the above warrant has been issued and should be enforced forthwith."
Details are then given of the time of eviction, and the letter continues -
" Please Note: Applications to suspend this warrant should be made no less than two days prior to the date of eviction …. It may be helpful for you to contact your local Homeless Persons Unit and/or seek professional advice, before the above date producing this notice."
It seems that the tenant did then seek advice, and on 10 th January 2001 he was referred to Southwark Law Centre. A housing adviser, Mr Lemosa, saw him on 17 th January 2001, but he had no documents. The adviser tried to get the tenant to produce relevant documents, but on two out of three occasions he simply failed to attend, and so nothing of any moment had been achieved before the eviction took place on 31 st January, after which the tenant made the application to re-enter which was considered by the judge. It is clear from Mr Lemosa's statement of 4 th February 2001 that the tenant had problems, and on 5 th March 2001 he was interviewed by Dr Bindman who considered it possible that in 1999 the tenant was suffering from depression which persisted up to the end of January 2001. It is not suggested that the landlords were aware of that.
Law and Procedure
The relevant law is helpfully and accurately set out in paragraphs 5 to 8 of the judgment of Judge Cox in the court below. Where, as here, there is a secure tenancy, that tenancy cannot be brought to an end by the landlord without an order of the court (see section 82(1) of the Housing Act 1985). The landlord must first serve a notice seeking possession, as was done in this case on 16 th October 1996. He must then commence proceedings in the prescribed form, which enables the tenant to know precisely what is alleged against him. If the matter goes to a hearing, as happened in this case on 5 th June 1998, and arrears are proved, the judge must decide if it is reasonable to make an order for possession, and if so, whether in the circumstances the order should take effect immediately, or be suspended on terms. If, as in this case, the order for possession is suspended on terms, and the tenant does not comply with the terms, the tenancy comes to an end by operation of law, and the former tenant becomes a "tolerated trespasser". The landlord then has to apply to the court to issue a warrant of possession. The County Court Rules, unlike the Rules of the Supreme Court, do not require notice of that application to be given to the tenant. The warrant is issued by an officer of the court, and an appointment is made with the bailiffs for its execution. Although the Rules do not require that the tenant be advised of the arrangements for execution such notice is in practice given, at any rate by the landlord involved in this case and by the County Court with which we are concerned. That is important because section 85(2) of the Act provides that on the making of an order for possession –
"or at any time before the execution of the order, the court may-
(a) stay or suspend the execution of the order, or
(b) postpone the date of possession, for such period or periods as the court thinks fit"
As the wording makes clear, the courts power of intervention under section 85(2) does not begin or end with the issue of the warrant, but it does end with execution. Thereafter the court has limited powers to set aside the execution on grounds of abuse of process or oppression, but those issues are not raised in this case.
The Human Rights Argument
Mr Latham submits that the procedure followed in this case was defective because it failed to give sufficient weight to the provisions of Article 8 of the Convention which, so far as relevant, provides -
"1. Everyone has the right to respect for his private and family life, his home …
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of … the economic well-being of the country …. or for the protection of the rights and freedoms of others."
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