The Master Wardens and Assistants of the Guild Fraternity of the Brotherhood of the Most Glorious and Undivided Trinity and St Clement in the Parish of Deptford Strond Commonly called the Corporation of the Trinity House of Deptford Strond v Dequincy Prescott
| Jurisdiction | England & Wales |
| Judge | Master Dagnall |
| Judgment Date | 11 February 2021 |
| Neutral Citation | [2021] EWHC 283 (QB) |
| Docket Number | Claim no: F04EC590 |
| Date | 11 February 2021 |
| Court | Queen's Bench Division |
[2021] EWHC 283 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Master Dagnall
Claim no: F04EC590
Ms Evie Barden (instructed by Forsters LLP) for the Claimant
The Defendants in Person
Hearing dates: 2 and 10 February 2021
Introduction
The COVID-19 pandemic has had an unprecedented effect on life and business in this country. The Government has responded in numerous ways and including by restricting the circumstances when evictions of tenants from their homes can take place. The most recent regulations to such effect are the Public Health (Coronavirus) (Protection from Eviction) (England) Regulations 2021 SI2021/15 (“the January Regulations”) which took effect from 11 January 2021 and which prohibited (“the Prohibition”) the execution of a (High Court) Writ of Possession or a (County Court) Warrant of Possession or the service of a “notice of eviction” (“Eviction Notice”) in relation to residential premises, in each case following the making of an order for possession (“the Possession Order”; and which order was made in this case on 10 January 2020) until after 21 February 2021.
The Prohibition is subject to certain exceptions including where there are substantial rent arrears (“Substantial Arrears”) being more than six months' worth in amount (“the Rent Exception”). In this case the arrears are said to be now over £70,000 and in the region of 21 months' amount; and I am, in effect, being asked by the Claimant, by an Application Notice dated 22 January 2021, to make a declaration that the court is satisfied that the Rent Exception applies. However, the main question before me is whether the Rent Exception only applies where (as the tenant Defendants contend) the Possession Order was made on grounds which wholly or partly were based on non-payment of rent or whether it can also apply (as the landlord Claimant contends) where the Order for Possession was made solely on a different basis. While the words actually used in the January Regulations support the Defendants' case, the Claimant contends that that construction is discriminatory for human rights purposes and that I should read the January Regulations in a modified way to accord with the Claimant's contentions. However, this case also involves some other points relating to the procedure for applications regarding the January Regulations.
The Tenancy and the Statutory Framework
The tenancy in this case was granted of residential premises known as 13 Merrick Square, Southwark, London, SE1 4JB (“the Property”) by the Claimant to the Defendants by a written document dated 16 November 2018 for a term certain ending on 30 November 2019 but determinable by 2 months' notice, and with a monthly rent. As the Defendants occupy the Property as “their only or principal home” the tenancy is an Assured Shorthold Tenancy under the provisions of the Housing Act 1988 (“the 1988 Act”) which governs most (not long lease) | short private sector residential tenancies. The consequence is that it can only be brought to an end by an order of the court, and on the ending of the fixed term a statutory period tenancy would (and did) arise which also could only be brought to an end by an order of the Court (for all this, see section 5 of the 1988 Act).
However, a Landlord can end an Assured Shorthold Tenancy by obtaining an order of the court on a number of different bases, including:
i) Following the service of a 2 months' notice under section 21 of the 1988 Act. Provided that the Landlord has complied with various statutory requirements (which will generally have been in the Landlord's power), the Court must then make an order for possession
ii) Following the establishment of a “Ground”, being one of the grounds for possession set out Schedule 2 to the 1988 Act. To seek such an order for possession, the Landlord must first have served a notice seeking possession (“NSP”) setting out the alleged existence of the Ground under section 8 of the 1988 Act. These Grounds are divided into “Mandatory Grounds” under Part 1 of Schedule 2 and “Discretionary Grounds” under Part 2 of Schedule 2
iii) The Mandatory Grounds include “Ground 8” being that rent of at least 2 months (or an equivalent over other periods depending on how the rent was payable; here the rent was payable monthly so this is the applicable approach) as at the dates of both the service of the NSP and the Hearing of the claim for possession. If Ground 8 is established then the Court must make an order for possession
iv) The Discretionary Grounds include “Ground 10” (non-payment of rent) and “Ground 11” (persistent non-payment of rent). However, even if the Discretionary Ground is established, the Court will only be able to make an Order for Possession if it is reasonable to do so. Moreover, unless and until the Order for Possession is executed, the Court retains a jurisdiction to stay or suspend the proceedings or any Order for Possession or its enforcement, all under section 9 of the 1988 Act.
Thus both Section 21 and Ground 8 give the Court no choice but to make an Order for Possession. In addition, and unlike Discretionary Grounds cases, section 89 of the Housing Act 1980 (“the 1980 Act”) provides, in effect, that in a Section 21 or a Ground 8 (or other Mandatory Ground) case, the Order for Possession must provide for possession to be given by the Tenant within no more than 14 days (or 6 weeks if exceptional hardship is shown) whereas in Discretionary Ground cases there is much more of an open discretion as to time (although still to be exercised on a principled basis).
One consequence of the compulsory operation of both Section 21 and Ground 8 is that, except perhaps where such contravenes other provisions of law, the Landlord's motivation for bringing the claim is irrelevant and the Order for Possession will stand irrespective of what happens in the future. In particular, if the claim was brought because of rent arrears, even if the Tenant discharges all of the outstanding rent, interest and costs, the Landlord can simply still enforce the Order for Possession as a matter of right. This is not the case in relation to Discretionary Grounds which gives rise to questions of reasonableness and where payment off of arrears may have great weight in persuading the Court either that it is not reasonable to make an Order or to set aside or suspend an Order following its having been made but not yet having been executed.
Once an Order for Possession has been obtained in relation to an Assured Shorthold Tenancy with the time for delivery up of possession having expired, it is enforced in the County Court by the obtaining of a Warrant of Possession directed to county court Bailiffs and in the High Court by the obtaining of a Writ of Possession directed to High Court Enforcement Officers; in each case to carry out its execution by an eviction of the Tenant. Since reforms in 2020:
i) This is done by without notice application under Civil Procedure Rules (“CPR”) 83.26 (Warrant) or 83.13 (Writ), and where judicial permission is not ordinarily required
ii) However, under CPR83.8A and unless a court has otherwise ordered, the Landlord must deliver a Notice of Eviction at least 14 days prior to the Eviction to the relevant premises, thus giving the occupiers a chance to apply to the court (should they have a relevant right) or make appropriate arrangements to vacate.
If the Landlord has an Order for Possession in the County Court, then the Landlord may apply to the County Court to transfer the Order to the High Court for the purposes of enforcement (by way of a Writ of Possession) under section 42 of the County Courts Act 1984 (“the 1984 Act”). I deal with that statutory provision further below.
The Order for Possession and Pre-COVID Steps
In this case it appears from the documents, and is (relatively) common-ground that:
i) The Defendants fell into substantial (more than 2 months) arrears of rent in 2019
ii) The Claimant on or about 16 August 2019 served:
a) A Section 21 Notice expiring in about October 2019, and
b) A NSP under section 8 of the 1988 Act relying on arrears of rent (then 5 months) and threatening proceedings under Grounds 8, 10 and 11
iii) No payments of rent (arrears or accruing) were made. On 25 November 2019, the Claimant issued a County Court Claim and Particulars of Claim Form (“the Claim Form”) in accordance with CPR55 which sought both possession and a money judgment for arrears. However, the only basis given for the claim for possession was the Section 21 Notice, and the NSP and the various Grounds were not then referred to in the Claim Form
iv) The Claimant issued an Application to amend the Claim Form (“the Application to Amend”) on 6 January 2020, seeking also to be able to rely on Grounds 8, 10 and 11
v) The Claim was then hearing by Deputy District Judge Rea (“the DDJ”) on 10 January 2020. The DDJ:
a) Made no order on the Application to Amend; it seems because, the DDJ having stated that Section 21 was satisfied and the Defendants not seeking to oppose that, Counsel for the Claimant (presumably on the basis that there was no point as the Claimant was going to obtain possession under Section 21) did not seek to pursue the Application to Amend
b) Held that Section 21 was applicable and had been complied with and made an Order for Possession to be given by 24 January 2020 and which was expressed to be on that basis “This Order has been made on mandatory grounds, Section 21, AST…”
c) Held that rent arrears existed and gave...
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