England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LAMBETH COUNTY COURT
(His Honour Judge Welchman)

		Royal Courts of Justice Strand London WC2
		8th May 2000

1. LORD JUSTICE WALLER: This is an appeal from the decision of his Honour Judge Welshman given in the Lambeth County Court on 1st November 1999. It raises again in this court the question whether execution of a warrant should be set aside by reason of "oppression" in its execution, the alleged acts giving rise to the alleged oppression being those of the Council and certain acts of the Court Office.
2. The background is as follows. I take this largely from the skeleton argument of Mr. Luba. The appellant, Mr. Hughes, was on 5th December 1994 granted the tenancy of certain domestic residential premises known as 9, Bligh House, Bentons Lane Estate, London SE27. His landlords were the respondents to the appeal, the London Borough of Lambeth. He enjoyed a secure tenancy of that two bedroomed property within the protection of Part 4 of the Housing Act 1985.
3. By 1998 Mr. Hughes was in significant arrears of rent. On 8th June 1998 the amount outstanding in the rent account was £1,938.95, of which £880.45 was a debt relating to a previous tenancy. On 10th June 1998 Mr Hughes signed a written agreement with the London Borough of Lambeth to clear that arrear by instalments of £4.21 per week, commencing on Monday, 15th June 1998. That agreement was not complied with. In the result, on 20th July 1998 the London Borough of Lambeth started proceedings for possession. At that date the Council's rent account, according to Mr. Luba's chronology, indicated that the sum outstanding was £2,173.69. We do not have that final rent account in our papers but it matters not. Mr. Hughes did attend court on the return date. However, on that date, 8th September 1998, it was inevitable that a possession order would be made as Mr Hughes had allowed the arrears to escalate further to the sum of £2,599.22. The order for possession was suspended on terms that Mr. Hughes pay the current rent, plus £9.21 per week. Mr. Hughes did not, however, keep those terms. In the result, by virtue of section 28(2) of the Housing Act 1985 his tenancy thereupon terminated. The London Borough of Lambeth were thereupon entitled to apply for issue of a bailiffs' warrant but they did not do so immediately. In the result, Mr. Hughes remained as what is called a tolerated trespasser. The application for the warrant was ultimately made to the Court Office on 20th September 1998, by which time the arrears were £2,799.22. That application is a document that was supplied to us during the currency of the hearing by the Council because the court file has been lost.
4. Shortly after the 20th September 1998, the Council became aware that a date for execution had been fixed, that date being 28th October 1999, that being set out in a letter dated 28th September 1999 to which I am going to turn in a moment.
5. It is important to stress at this juncture the provisions of section 85(2) of the Housing Act 1985. That provision provides that:

"On the making of an order for possession of such a dwelling-house on any of those grounds, 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."

6. Thus the subsection allows for an application for a stay or suspension at any time before the execution of an order.
7. Once the Council had learned of the date fixed for the execution, they sent a letter dated, 28th September 1999, which advised Mr. Hughes as follows. I will not read it all, but the material parts refer to the case number, not, it should be said, the warrant number. It specified the date when the eviction was to take place, Thursday, 28th October at 8 am, and then stated in capital letters:

"THE BAILIFF WILL EVICT EVERYONE AT THIS ADDRESS. YOU MUST BE READY TO LEAVE WHEN THE BAILIFF ARRIVES.

If you want to stop the eviction you must pay all of your rent arrears by the day before the eviction. You can only pay in cash or by banker's draft. It will be too late for us to clear a cheque. You must show proof of the payment to this office on or before the eviction date. These terms cannot be changed."

8. I do not need to read the rest of the letter which was dated in manuscript 28.9.99. As the judge found, Mr. Hughes was worried by that letter, but he did not pay all of the arrears during that one month warning period. Indeed, he did not pay anything at all. This was because he took the letter sent to him by the Council at its face value. He thought that eviction could only be stopped if he paid everything. However, he went to see the housing officer in person. As the judge put it, he got a fairly uncompromising response from her, her attitude being precisely that of the Council. But she did tell him to take legal advice. In doing so, she gave no indications as to the rights under section 85(2) and no hint that there was a possibility of applying to suspend without paying all the arrears. Mr. Hughes did attempt to take some legal advice, as found by the judge. It should be said that Mr. Hughes gave evidence before the judge, and, as he had said in his application to set aside the execution of the warrant, he gave evidence that he tried to get the legal advice from Centre 70 Advice Centre and the Brixton Advice Centre but they could not help. It was in that context, as he himself says, that he then contacted the County Court. When he contacted the County Court he was told at the office there that an application could be made to stay a warrant for possession, but he was told that the court file showed that no warrant had been issued, and he was told to await a warning letter from the bailiffs and told that when that arrived he should apply to the court. A warning letter was sent by the court or by the bailiffs, dated 21st October 1999. It is headed "The Court Service, Lambeth County Court. It gives their address. It is addressed to Mr. Hughes. It is dated 21st October and it is headed in large letters "EVICTION NOTICE". It does give the case number and it also gives the warrant number. It tells him that, since he has failed to give possession, the above warrant has been issued and should be enforced forthwith. It says that the premises are to be vacated by 28th October. All persons will be evicted at 9 am on that day. It also says:

"Please note that pursuant to Order 13 Rule 1(2) applications to suspend this warrant should be made no less than two days prior to the date of eviction."

9. Mr. Luba tells us that O.13,r.1(2) has in fact been repealed but there are corresponding provisions requiring applications to be made on two days' notice. As regards that letter, it seems, and Mr. Luba accepts, that there is no requirement by the rules to send such a letter when possession of property only is being sought. That is somewhat strange, as previous decisions in this court have pointed out. There does appear to be a provision relating to warrants for execution of judgment debts, which is now incorporated in Schedule 2 to the Civil Procedure Rules and is 26r1(4), which says that:

"Where a warrant is issued for the whole or part of the said sum of money and costs, the court officer shall, unless the district judge responsible for execution of the warrant directs otherwise, send a warning notice to the person against whom the warrant is issued and, where such a notice is sent, the warrant shall not be levied until 7 days thereafter."

10. It seems that the proper construction of that rule is that there should not be a levy until seven days after the date of the warning notice, and it thus seems that what the court was doing in sending the letter that was sent in this case was mirroring the requirement of that rule. Unfortunately, the letter was not actually dispatched until 22nd October 1999. It was posted by second class post. It did not arrive, and certainly was not seen by Mr. Hughes, until 28th October, the date when the bailiffs were due to be there. In the result, in an attempt to mirror that rule there was a failure to comply with it, in the sense that execution was levied within seven days of the notice being sent. Furthermore, it is somewhat strange that there should be a suggestion that, if there is to be an application to suspend the warrant, it should be made on no less than two days prior to the date of eviction, in a notice sent which is not going to arrive until the date of the eviction. One would have thought, and one appreciates that there are pressures on the Court Service, that, in circumstances of this sort, that, where the warrant has been issued for a certain day, like the 28th as it was here, there is no good reason why the warning notice from the court should not come out in plenty of time, so as to allow the person who is going to be evicted the two clear days in which to apply to suspend the warrant.
11. As indicated, Mr. Hughes did not read that letter until the morning of 28th October. It is right to say that he had in fact stayed away from 24th to 27th October, and it may be that the letter arrived late on the 27th, but there is no issue that he did not read it until the 28th, and that he did not read it until the bailiffs were at his door. It was in those circumstances that Mr. Hughes was evicted from his home, and it was in those circumstances that he took immediate legal advice and, in the result, on 29th October, the day after the eviction, he applied to the County Court to set aside the warrant on the basis that it had been executed in circumstances of oppression and/or abuse of process.
12. His application appears at page 22 of the bundle and, putting it in broad terms, what he said was that he had lived there for a number of years, that he had a partner, that he had a child, and he was saying that he could in fact pay a lump sum of £2,000 towards the arrears.
13. It was that application that came before His Honour Judge Welchman on 1st November. Mr. Hughes was represented by his solicitor and the Council were represented before the judge by someone from their Legal Department. Thus, counsel here today were not present in the court below. Very fairly, Mr. Carter has made clear through Mr. Luba that not all the authorities that were cited to us were cited to the judge. Indeed, only the case of Hammersmith and Fulham v Hill was brought to his attention. What is more, again Mr. Carter through Mr Luba accepts that the real argument addressed to the judge related to oppression by reason of the failure of the Council to indicate the rights that Mr Hughes would have to apply under section 85(2). No real argument was addressed to the question that arises in relation to the conduct of court officials and the possibility of misleading advice being given to Mr Hughes by them. In any event, the judge held that there was no oppression by the Council. He took the view that it placed too great an onus on the Council to require them to go further than they did. He drew attention to the fact that the housing officer had said that legal advice had been obtained. In the result, he dismissed the application with costs.
14. We have had cited to us various authorities by Mr. Luba. He showed us the case of Hammersmith and Fulham v Hill [1994] 27 HLR 368, and he pointed out that in that case it was held that the point that he now seeks to take on behalf of his client was arguable. He referred to the judgment of Nourse L.J. and Wall J, Nourse LJ at page 373 and Wall J at page 374. Perhaps the easiest way to make the point is to cite the passage from Wall J's judgment, where he said this:

"However, for the reasons given by my Lord, it is clear to me that the learned judge did not resolve the one issue in the case which it was open for the respondent to this appeal to argue, namely that she was effectively deprived of the opportunity to apply to the court for a stay before the warrant was executed by the conversation which she had with the local authority's housing officer and to which she deposes in paragraph 19 of her affidavit. In my judgment the assertions which she makes in that paragraph give rise to a triable issue which can only be resolved by oral evidence."

15. He referred us also to a case in the Lambeth County Court, Lambeth London Borough Council v Johnson. The case was heard by His Honour Judge James, who was then the resident judge of the Lambeth County Court. The only point of relevance in the judgment is that it appears that a letter, in somewhat similar terms to the letter that Lambeth wrote in this case on 28th September 1999, was being used in that case. His Honour Judge James said this about such a letter:

"The remaining point is the allegation that there was oppression in carrying out the possession order. As it happens, this lady received written notices from the court and the council, that sent by the council unfortunately suggests that the tenant has no remedy except payment of the whole rent arrears. It gives no hint that there is the alternative of applying to the court. Indeed it says in effect that the council's terms cannot be changed which suggests finality.

If this lady had known what was in the letter before eviction, the point about oppression would have been a good one but I do not accept that she knew about it before the eviction."

16. That form of letter is to be contrasted with the form of letter which was under consideration in the case which came to this court, Camden London Borough Council v Akanni 29 HLR 845. In the judgment of Sir Brian Neill the letter which was under consideration in that case is quoted. I only need to quote the final paragraph of the letter which had been sent by Camden to the tenant they were seeking to evict:

"You will be advised in due course of the eviction date, but please note that the eviction will only be cancelled if the entire debt is cleared. You are also advised that you can approach the County Court to have the warrant set aside, but the Council will resist any such application."

17. In the context of that letter in that case the Court of Appeal held that that letter was not oppressive and not arguably so, but the distinction between the two forms of letter is important. In the letter which is the subject of this appeal, and which was the subject of the decision in the Lambeth case of His Honour Judge James, the letter tends to create the impression or the language creates the impression that nothing can be done except pay, whereas the letter which was under consideration in the Akanni case, the letter used by Camden, it is by its language saying: "You can apply to the court to have the warrant set aside but our attitude is that the Council will resist and say you should pay." Those are two totally distinct situations. Mr. Luba also cited the case of Barking and Dagenham London Borough Council v Saint (1998) 31 HLR 620. He cited that for the test which Peter Gibson L.J. analyses at page 626:

"The categories of oppression are not closed and the court must have the power to intervene in the interests of justice in an appropriate case to correct the position where its procedures have been used unfairly to the oppression of a party."

18. Mr. Luba also cited to us the case of London Borough of Southwark v Sarfo (transcript, 19th July 1999). I will come back to that case in a moment. He finally cited to us the case of London Borough of Hammersmith and Fulham v Lemeh. We only have a transcript because that decision was given on 3rd April 2000, a decision of Nourse L.J. and Holman J. The importance of that judgment is that it demonstrates that, where oppression is in issue, it is not simply the conduct of the person with the judgment and seeking to enforce the judgment which can be looked at, but one also looks at the conduct of the court staff. Thus it was in that case that Nourse L.J. recited the factual situation in this way. He said at page 2:

"Mr. Lemeh came into West London County Court on 29th September, and placed his rent statement in front of me and said he was going to be evicted on 30th September. I asked him if he had a claim number and he said 'no'. I then asked him how he found out about the eviction. He said that the London Borough of Hammersmith and Fulham had told him. I then did a search on the caseman not knowing there were three actions against him. I found case WL800825 and saw there was no warrant. I then asked the Issue Section Manager if he knew about a case on Mr Lemeh. He said 'no'. Not knowing Mr Lemeh had more than one action I then told Mr Lemeh to contact the London Borough of Hammersmith and Fulham to find out the claim number. He then went on his way."

19. Nourse L.J. at page 3 cites the submissions of Mr. Bhose for the Council, who suggested that there was no case in which oppression had included oppression caused by misleading information by the court office. Nourse L.J. said this:

"In principle, I am unable to see why oppression of that kind should not be included. The way in which that ground is usually stated is 'oppression in the execution of the warrant'. Once the warrant has been obtained, its execution is a matter between the court and the tenant. It is the officer of the court who executes the warrant and the landlord has no part in that process. Moreover, there seems to be no reason why oppression should be confined to oppressive conduct on the part of the landlord or some other person. It ought to include any state of affairs which is oppressive to the tenant."

20. In the context of those authorities Mr. Luba's submission was that there was oppression, both in the conduct of the Council, the housing officer and in the conduct of the court staff. He submits, firstly, that the letter of 28th September in its terms suggests that Mr. Hughes simply has no alternative but to pay all that is due. As a matter of construction, that seems to me to be the right construction of that letter. Indeed, Mr. Lonergan, very properly on behalf of the Council, did not argue otherwise. It is right to comment that it is somewhat strange that a letter in that form is still being sent by Lambeth Council in the light of the criticisms that were made by His Honour Judge James. Some explanation of that was made during argument. As we understand it, Lambeth are going to do something about that.
21. Secondly, Mr. Luba submits that the attitude of the housing officer was no different from the letter. It was uncompromising and again inferred that nothing short of making a full payment could do anything about the eviction that was planned for 28th October. Again, Mr. Lonergan does not seriously argue otherwise about the attitude of the housing officer, but Mr Lonergan submits that the housing officer did tell Mr. Hughes to obtain legal advice, and it is his submission that it is that statement by the housing officer which saves both the letter from the Council and the advice from the housing officer from being oppressive. I, for my part, have some difficulty with that submission. Mr. Hughes has received uncompromising advice from both the Council and the housing officer. His understanding is that there are no procedures for staying the process. He had not been told of the availability of section 85(2) and, in the result, Mr. Hughes is not going out to seek advice on the basis that he can make an application but on the basis that he cannot. When thus he tries to obtain some advice from the two sources that I have already indicated, and when that advice fails to point him in the right direction, it does not seem to me right that the Council can pray in aid that they told him to get that advice. But, in any event, in this case that is not the end of the matter. Mr. Lonergan, again very realistically, accepted the difficulty that still lay in his way.
22. Mr. Hughes did then go to the court. When he got to the court he was given misleading advice. Why he was given misleading advice is difficult for us to say or to speculate on, and possibly not right to do so. There may be great pressure in the county court offices. But, for whatever reason, he was told that no warrant had been issued, which was inaccurate. He was told that he should wait for the bailiff's letter before applying to the county court, whereas section 85(2) allows an application to be made at any time after the original order for possession. Third, he was told to wait for the bailiff's letter, on the basis that that letter was going to be sent and give him time to react to it. But in fact that letter was not sent in any way in time to allow him to react to it. The letter, as already indicated, was not sent seven days prior to the eviction. It suggested that two clear days' notice was going to be needed if an application was going to be made but was not sent out in time to allow that to happen. That being so, as it seems to me, Mr Hughes has made out a case that he received misleading advice from the court. He has also made out a case that he was misled as to the procedures that were available to him i.e., a procedure available under section 85(2). In those circumstances, he has made out a case of oppression and, in my view, the judge was wrong to hold otherwise, though, as I have indicated, the matter has been argued rather differently before us than it was before him.
23. The only remaining matter relates to the appropriate form of order. What Mr. Lonergan submits is that, even if a case of oppression is made out, the remedy would be a discretionary one, and the discretion should be exercised against Mr. Hughes. Mr. Lonergan in this context referred to Southwark London Borough Council v Sarfo, 19th July 1999, and pointed to the fact that in that case, despite finding oppression, the court exercised its discretion against the tenant. But the circumstances of that case are somewhat different from these. In that case the tenant did not apply for any relief until some 15 months after the eviction. By the time that the application was made the block of flats had been knocked down. The same flat was not available to the tenant. But it is of some interest in the context of Mr. Lonergan's submission to note that Roch L.J. felt driven to that conclusion, i.e. that the absence of the flat itself meant that the discretion should be exercised against the tenant, but he did suggest that the respondent authority should take into account the views of this court, thus indicating the way he would have been likely to exercise his discretion if the flat had still been there and despite the lateness of the application of Mr. Sarfo. In this instance Mr. Hughes applied on the day after the eviction. The grounds for saying that the discretion should be exercised against him are simply that Mr. Hughes has been a bad tenant, a bad payer, things have got worse and not better, and thus Mr. Hughes has no chance and never did have a chance of persuading any court under section 85(2) to stay or suspend the warrant. It is quite impossible for this court to go into all the details which need to be examined to decide whether a stay should be granted. Mr. Luba accepts that his client has an uphill struggle but where, in a case of this sort oppression has been found, and the situation is that the application is made as swiftly as it was here, the appropriate course is to put Mr Hughes back into the position he should have been in but for the fact that he did not appreciate that he could make an application under section 85(2) and but for being misled by the court. In my judgment, therefore, the discretion should be exercised in his favour. I would allow the appeal. I would set aside the execution of the warrant and I would direct that Mr. Hughes makes his application to suspend or stay the warrant within a short period of today's date. I will hear submissions on that.
24. MRS JUSTICE ARDEN: I agree with the disposition of this appeal set out in the judgment that has just been given by my Lord, Lord Justice Waller, and I agree with the reasons that he has given. I would like to add one or two points of my own. Firstly, as Waller LJ has made clear, what amounts to oppression must depend on the circumstances. We have been referred by counsel to the dictum of Bowen LJ in McHenry v Lewis cited by Brooke LJ in Camden v Akanni, and to passages in the judgment of Peter Gibson LJ in Barking and Dagenham London Borough Council v Saint and to a further passage in the judgment of Roch L.J. in Southwark London Borough Council v Sarfo, but there was no case produced to us which is quite on all fours with this case. It is clear from the authorities that oppression includes oppressive conduct which effectively deprives a tenant of his opportunity to apply for a stay (see the Hill case). The position in this case is due to a combination of factors the conduct had that result. There was first the local authority's letter and the conversation with the housing officer, as set out in the judgment of Waller L.J., both of which indicated that payment in full of all arrears was required to avoid eviction. There has already been judicial criticism of the form of letter used by the local authority (see the judgment of His Honour Judge James in Johnson). The letter before us was not materially different from the letter before His Honour Judge James, and I would emphasize the points made by Waller L.J. In my judgment, it is time that the letter was amended. That should now be done without further delay. Despite the persuasive arguments of Mr Lonergan, I agree with my Lord, Lord Justice Waller, that it was not, on the particular facts of this case, sufficient for the housing officer to tell Mr. Hughes that he should take legal advice, although that no doubt was done to be helpful. As the judge pointed out, Mr Hughes was not told what steps he might want to take, with or without legal advice, to forestall Lambeth in seeking to evict him from the property. Complaint had been made at the hearing before the judge about that. Here, however, Mr. Hughes was not wholly misled. He went to the Legal Advice Centre, although he did not obtain satisfactory advice from them on this occasion. He also went to the court. He went to the court office where he was given inaccurate information. He was told that eviction papers had not been issued, although that information conflicted with the letter that Mr Hughes had received. He was also told that he should return when he received the warning letter from the bailiffs. It is obviously difficult for the court officials. They are not there to give advice and they were no doubt endeavouring to be helpful to Mr Hughes. It seems likely that they did not foresee that the warning letter to be sent by the bailiffs would be sent a day late and that it would arrive while Mr Hughes was away from the flat. If it had arrived on the 27th and Mr Hughes still had been there, it might have been in time to make an application for a stay. It would have been possible in court hours no doubt to make an emergency application. Rightly or wrongly, applications in this sort of case are also made out of hours to the duty judge in the Chancery Division. However, Mr Hughes says that he did not see the letter in time on the 27th, and it was the combination of all these factors which led to him being deprived of his opportunity to make an application for a stay under section 85(2).
25. The ingredients of oppression in a case such as this have not been defined by the court. The court has stressed that what amounts to oppression depends on the circumstances, but it seems clear to me that the lack of opportunity would not have occurred if Mr Hughes had not been wrongly advised by the court or if the local authority had not given the impression that he had to pay the arrears in full. I agree with my Lord, Lord Justice Waller, that the result is unfair to Mr. Hughes. The appeal should therefore be allowed.
26. On the question whether or not any stay or suspension of the order would have been granted, I would record that Mr. Luba has made it clear that Mr Hughes may no longer have the lump sum mentioned in his application. He has been frank in recognizing the difficulties which Mr Hughes may have in persuading the court that he ought to be given a stay or suspension, but the judge clearly thought that the personal circumstances of Mr Hughes were relevant and important background. I agree that the appeal should be allowed and that the matter should be remitted to the court with the direction proposed, so that the court can decide whether there should be any stay or suspension of the enforcement of the order.
27. Finally I would add this. Much valuable work has been done by the Civil Procedure Rules Committee in updating and modernising the rules and procedures of the High Court and the County Court, and in particular bringing together the rules of the High Court and the County Court. In this particular case there is a discrepancy between the rules of the High Court and the County Court. In the High Court there has to be judicial consideration of the question whether a possession order should be enforced, and notice has to be given to all persons in actual possession. It will be necessary for the Civil Procedure Rules Committee to confront the problems that arise in this sort of case. I hope that they will bear in mind the difficulties which have arisen in the present case as a result of the particular form of the rules of the county court.
Order: Appeal allowed with costs here and below; case to be remitted to county court; execution of warrant of possession be set aside; application to be made to Lambeth County Court within seven days; detailed legal aid assessment. (Order not part of the judgment of the court)