England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/04/2011

Mr Justice Morgan:

1. The principal application which is before me is an application by the Claimants for an order requiring some or all of the Defendants to permit the Claimants to enter, or re-enter, into possession of the dwelling house at 1 Garratt Close, Beddington, Surrey, alternatively, for the Claimants to be permitted to protect and/or collect their possessions which are in those premises. The immediate background to this application is that the First and Second Claimants, Mrs Pritchard and her son Mr Carter, were evicted from the premises by the Fifth Defendant, Fineland Investments Limited ("Fineland"), on 1^st April 2011.
2. The events which led up to the eviction on 1^st April 2011 essentially begin with a transaction entered into between Mrs Pritchard and Fineland on 9^th August 2004. The nature of that transaction was described in detail in a judgment given by Ms Alison Foster QC, sitting as a Deputy Judge of the Chancery Division, on 31^st January 2011, in proceedings brought by Fineland against Mrs Pritchard. Those proceedings were commenced on 29^th June 2006 and I will refer to them as "the 2006 proceedings". The neutral citation of the judgment given on 31^st January 2011 is [2011] EWHC 113 (Ch).
3. In very brief summary, prior to 9^th August 2004, Mrs Pritchard was a secure tenant of the premises, holding the same from the London Borough of Sutton. She was entitled to, and did, exercise the Right to Buy under the Housing Act 1985. On 9^th August 2004, the London Borough of Sutton transferred the freehold in the premises to Mrs Pritchard at a price discounted in accordance with the 1985 Act. On that date, her secure tenancy of the premises came to an end: see section 139(2) of the 1985 Act. Also on 9^th August 2004, Mrs Pritchard contracted to sell the freehold in the premises to Fineland. The price agreed with Fineland was £20,000 more than the price paid by Mrs Pritchard. To avoid the London Borough of Sutton reclaiming all or part of the discount on the sale to Mrs Pritchard, the contract to sell to Fineland provided for completion at a date just over 3 years thereafter. Also on 9^th August 2004, Mrs Pritchard granted to Fineland a lease of the premises for a term of 20 years. As the term of the lease was only 20 years, this grant did not oblige Mrs Pritchard to pay back to the London Borough of Sutton any part of the discount. Under the formal documents, Mrs Pritchard was obliged to give vacant possession of the premises to Fineland on 9^th August 2004. However, Fineland informally agreed to allow Mrs Pritchard a short time to vacate the property. The Deputy Judge held that this meant that Mrs Pritchard was entitled to remain in the property until 30^th August 2004.
4. Shortly after 9^th August 2004, Mrs Pritchard sought to resile from the arrangements she had made with Fineland. She declined to vacate the premises. Eventually, Fineland brought the 2006 proceedings to claim possession of the premises and various other heads of relief. Mrs Pritchard filed a defence to those proceedings. Initially, she was represented by solicitors but later in the course of those proceedings she acted in person.
5. In late 2009, directions were given fixing the date of the trial of the 2006 proceedings so that it would take place in October 2010. On 22^nd September 2010, Mrs Pritchard applied for an adjournment of the trial. That application was heard by Floyd J on 5^th October 2010 and was dismissed.
6. The trial of the 2006 proceedings duly began on 11^th October 2010. Mrs Pritchard had written to the court just before this date and the Deputy Judge considered her letter as a further application to adjourn the trial. The Deputy Judge considered that application and decided not to adjourn the trial. The trial then proceeded on the 11^th and 12^th October 2010. Fineland was represented by counsel. Mrs Pritchard did not attend the trial. The Deputy Judge was addressed in detail on behalf of Fineland and Fineland called oral evidence in accordance with witness statements which had earlier been served.
7. The Deputy Judge reserved her judgment, which was handed down on 31^st January 2011. Mrs Pritchard attended on the handing down of the judgment. The approved judgment extends to some 30 pages. The Deputy Judge considered the documents which had been entered into by the parties, the allegations made by Mrs Pritchard in her Defence and the oral evidence. The Deputy Judge found in favour of Fineland.
8. A detailed order was drawn up to give effect to the judgment of 31^st January 2011. Mrs Pritchard was ordered to give possession of the premises on 14^th March 2011. The order also provided for the transactions entered into on 9^th August 2004 to be perfected by appropriate registrations at the Land Registry. In particular, it was provided that Fineland should be registered as the proprietor under Title Number SGL 660273 in relation to the lease granted by Mrs Pritchard on 9^th August 2004. The Deputy Judge refused permission to appeal. Mrs Pritchard has not at any time issued an Appellant's Notice seeking to appeal to the Court of Appeal against the order of 31^st January 2011.
9. On 4^th and 24^th February 2011, solicitors for Fineland wrote to Mrs Pritchard with a copy of the order of 31^st January 2011. The solicitors specifically referred to 14^th March 2011 as the date on which possession was to be given up. In the second letter, the solicitors reminded Mrs Pritchard that she would need to remove her possessions from the property by that date.
10. On 9^th March 2011, Mrs Pritchard appeared before David Richards J seeking a stay in relation to the possession order which was expressed to take effect on 14^th March 2011. The judge directed that Mrs Pritchard should decide whether she wished to pursue that application and, if she did, he would hear an application to that effect on 11^th March 2011. Mrs Pritchard did not later indicate to the judge or to Fineland that she wished to pursue the application and she did not appear before the judge on 11^th March 2011, although Fineland was ready to appear through counsel on that date if an application were made.
11. Although I think that Fineland were not previously aware of this fact, Mrs Pritchard told me at the hearing on 13^th April 2011 that she appeared before Peter Smith J and sought a stay of the order of possession. She did not give me the date of that appearance but she did tell me that the judge said that he could not, or would not, extend the date for possession and informed Mrs Pritchard that if she wished to challenge the order for possession she would have to appeal to the Court of Appeal.
12. Mrs Pritchard did not vacate the premises on 14^th March 2011. On that date, the solicitors for Fineland were contacted by Mr Carew-Reid. On 15^th March 2011, Mr Carew-Reid sent to those solicitors the Claim Form in proceedings which were issued by the Claimants on 11^th March 2011. In the details of claim set out in the Claim Form, Mr Carew-Reid claimed to be the owner of the premises pursuant to an alleged agreement of June 2004. Mrs Pritchard and her son also claimed damages and possession of the premises as a result of what they said was immoral behaviour, conspiracy to defraud and a fraudulent trick by the Defendants. The Defendants included Fineland and also an associated company of Fineland, a director of Fineland and three firms of solicitors.
13. On 21^st March 2011, Mrs Pritchard issued an application in the 2006 proceedings. The order which she sought was that there be a directions hearing in relation to a later full hearing of an application to stay and/or to set aside the order made on 31^st January 2011. That application was returnable on 7^th April 2011 when directions were apparently given for a hearing on 5^th May 2011.
14. On or about 30^th March 2011, Fineland applied for a writ of possession and a writ in Form No. 66 was issued on 30^th March 2011. Fineland did not apply for permission to issue this writ. It took the view that the case fell within RSC order 113 r 7 rather than RSC order 45 r 3. It should be noted however that the appropriate writ under order 113 r 7 is Form No. 66A and not Form 66 but I would regard the difference as an irregularity which, on the facts of this case, the court should waive.
15. On 1^st April 2011, the writ of possession was enforced at the premises by two Enforcement Officers. Mrs Pritchard was evicted. Her son, Mr Carter, was not present at the beginning of the eviction but he returned in the course of it. The premises were secured. Various possessions belonging to Mrs Pritchard and her son remained on the premises. There is a considerable dispute about the way in which the eviction was carried out and about the conduct of the Enforcement Officers, the police (who were in attendance) and Mrs Pritchard herself. On the view I take as to the legal position, it is not necessary in this present judgment to investigate the serious allegations and counter-allegations which have been made about the course of the eviction and the behaviour of the parties.
16. On 7^th April 2011, Mr Carew-Reid appeared before me, without notice to Fineland. He wished to make an application in accordance with an application notice issued that day; that application notice is the one which I later heard on 13^th April 2011 and which is the subject of this judgment. Mr Carew-Reid gave me a very abbreviated history of the matter which omitted many highly relevant matters. The associate in court on that day went in search of the court file which contained the judgment handed down on 31^st January 2011. Having read that judgment to myself, I indicated to Mr Carew-Reid that it was not appropriate for me to make the orders which he sought when I had not heard from the other side, who indeed knew nothing of his application.
17. At the hearing on 13^th April 2011, Mrs Pritchard appeared in person. She spoke on behalf of herself and her son, who was not present. Mr Carew-Reid was not present although it may be that Mrs Pritchard was able to speak on his behalf.
18. In considering whether to grant the relief sought by the application notice of 7^th April 2011, I think that I should consider whether this is, or might be, a case in which the court will set aside the order for possession made on 31^st January 2011 and also consider whether anything which happened in relation to the issuing of the writ of possession on 30^th March 2011 or the circumstances in which the eviction took place on 1^st April 2011 should result in the court setting aside the writ of possession of 30^th March 2011 and/or allowing the Claimants to enter, or re-enter, the premises. If a court were in due course to set aside the order for possession then it would seem to follow that the court should then set aside the writ of possession and it would be open to the court, if it thought fit in all the circumstances, to restore the Claimants to the position they were in before the writ of possession was executed on 1^st April 2011.
19. At the hearing on 13^th April 2011, Mrs Pritchard did not focus on her application to set aside the order for possession but instead focussed on the circumstances in which she was evicted on 1^st April 2011. Nonetheless, it seems to me that the first topic that I should consider is whether a court would or might set aside the order for possession in this case.
20. In my judgment, the court's powers to set aside the order for possession of 31^st January 2011 are governed by CPR 39.3. In this case, the hearing on 11^th and 12^th October 2010 amounted to a "trial" for the purposes of that rule: contrast Forcelux Ltd v Binnie [2009] EWCA Civ 854. In any event, the court should normally apply the provisions of Rule 39.3(5) by analogy, even if they do not strictly apply in a case where judgment was given at a hearing which was not a "trial": see London Borough of Hackney v Findlay [2011] EWCA Civ 8 at [24].
21. Although the application which Mrs Pritchard has made to set aside the order for possession was not for hearing on 13^th April 2011, if the possibility of the order for possession being set aside is to be a ground for me restoring Mrs Pritchard to possession of the premises, I must form some assessment on the material before me of Mrs Pritchard's prospects of success in that application. As to the requirements of rule 39.3(5), on the material before me, it is strongly arguable that Mrs Pritchard did not apply promptly to set aside the order of 31^st January 2011. Further, in view of the refusal of Floyd J and of the Deputy Judge to adjourn the trial, I do not think that Mrs Pritchard has put forward a good reason for not attending the trial. In addition, it is strongly arguable that she has not shown a reasonable prospect of success at the trial. I would describe Mrs Pritchard's prospects of success in obtaining an order setting aside the order for possession as being only slight. In my judgment, those prospects are not sufficient to persuade me to restore her and her son to the premises in the meantime, while an application to set aside the order for possession is further considered.
22. I next turn to consider the various arguments which I heard about the circumstances in which the writ of possession was issued and in which Mrs Pritchard and her son were evicted on 1^st April 2011.
23. The principal complaint made by Mrs Pritchard was that she was not given notice of the intended eviction on 1^st April 2011. She was told, and reminded, in advance of 14^th March 2011, that she was expected to deliver up possession by that date. However, I find that Fineland did not attempt to tell Mrs Pritchard that it had applied for, and obtained, a writ of possession and was proposing to execute that writ on 1^st April 2011. I also find that when the Enforcement Officers attended the premises on 1^st April 2011, this was a complete surprise, indeed a shock, to Mrs Pritchard. I think that Mrs Pritchard thought that she would have notice of any intended eviction and she may have thought that the proceedings issued on 11^th March 2011 and the application made on 21^st March 2011 were an effective means of keeping Fineland at bay while those proceedings took their course.
24. Mrs Pritchard submitted to me that the writ of possession was unlawful and the eviction should not have happened without notice having been given to her. I therefore need to consider, amongst other things, whether Fineland should have informed Mrs Pritchard of its intention to seek a writ of possession and, separately, whether (following the issue of the writ of possession) Fineland should have notified Mrs Pritchard of the intended eviction on 1^st April 2011.
25. I have already mentioned that Fineland relied on RSC order 113 r 7 as justifying its decision not to seek the permission of the court to issue the writ of possession. Such permission is normally required under RSC order 45 r 3 but order 113 r 7 is an exception to that normal requirement.
26. Whether this case is governed by order 113 r 7 or order 45 r 3 is not an altogether easy point. Order 113 r 7 refers to "an order for possession in a possession claim against trespassers under Part 55". In my judgment, the phrase "a possession claim against trespassers" just quoted from order 113 r 7 is to be given the same meaning as in CPR 55, where the phrase is defined by rule 55.1(b) to mean: "a claim for the recovery of land which the claimant alleges is occupied only by a person or persons who entered or remained on the land without the consent of a person entitled to possession of that land but does not include a claim against a tenant or sub-tenant whether that tenancy has been terminated or not".
27. If one applies the above definition in CPR 55.1(b) to this case, it would appear that the possession order in this case was made in "a possession claim against trespassers". Mrs Pritchard had not entered the premises as a trespasser but after 30^th August 2004 she remained in possession as a trespasser: see Greater London Council v Jenkins [1975] 1 WLR 155, as to the application of this definition to an ex-licensee. Further, I do not think that the claim to possession against Mrs Pritchard was a claim against a tenant or sub-tenant; although she had been a tenant of London Borough of Sutton up until 9^th August 2004, she then became a transferee as freeholder from London Borough of Sutton (her tenancy thereupon being terminated) and then for some 21 days she was the licensee of Fineland.
28. There are other matters which I ought to consider. In CPR 55.2(1)(a)(iii) there is a reference to a possession claim brought by a "licensor (or former licensor)". A separate provision, CPR 55.2(1)(b), refers to "a possession claim against trespassers". The claim to possession in the present case would seem to fall within rule 55.2(1)(a)(iii); does that mean that it must fall outside rule 55.2(1)(b)? In my judgment, these two provisions need not be mutually exclusive. Paragraph (a)(iii) refers to the person bringing the claim: paragraph (b) refers to the person against whom the claim is brought. A single claim can come within both provisions. As I have explained, this case would seem to fall also within the definition of "a possession claim against trespassers".
29. I have also considered whether the claim to possession was "a possession claim against trespassers", given that the 2006 proceedings also included claims for other heads of relief. If one works through the many provisions in CPR 55 which refer to "a possession claim against trespassers", it is sometimes straightforward, and sometimes not, to apply those provisions to the 2006 proceedings. However, even if the individual provisions do not always fit with more complex proceedings such as the 2006 proceedings, that does not compel the conclusion that the claim to possession in the 2006 proceedings did not fall within the definition in CPR 55.1(b). I also note paragraph 1.7 of PD55A which refers to Part 55 applying to proceedings which include a claim to possession but also includes other claims. That would seem to cover the 2006 proceedings.
30. I have also considered the policy behind the special rule in RSC order 113 r 7. It seems to have been considered that a claim against a trespasser raises different issues and is to be dealt with in a different way from other possession claims and, in particular, without the safeguard of the need for permission pursuant to RSC order 45 r 3. If Fineland had made a claim to possession against Mrs Pritchard on the same basis as in the 2006 proceedings but using a separate set of proceedings, where the only remedy claimed was an order for possession, then I would without hesitation have held that such proceedings were a claim to possession against a trespasser. If Fineland had then obtained an order for possession in such proceedings, it would have been able to take advantage of RSC order 113 r 7. I do not see any good policy reason for treating the order for possession in the 2006 proceedings any differently just because it was in a set of proceedings which claimed relief in addition to an order for possession.
31. My conclusion is that the writ of possession in the present case was properly issued even though Fineland did not seek the permission of the court for the issue of the writ.
32. For the sake of completeness, I have considered what would probably have happened if Fineland had sought permission under RSC Order 45 r 3. In my judgment, Fineland would have been entitled to seek that permission by an ex parte application. RSC order 46.4(1) says so. The decision in Fleet Ltd v Lower Maisonette [1972] 1 WLR 765 is a little difficult to square with the wording of RSC order 46.4(1) and may have to be confined to a case within order 46 r 2(1)(d): see how the matter was described by Simon Brown LJ in Jephson Homes v Moisejevs [2001] 2 All ER 901 at [44] and [47]. The present case is not within order 46 r 2(1)(d). If permission had been sought by an ex parte application, I find that it would have been within the power of the court to give permission on such an application, without directing that the application be served on anyone. The application would have had to have satisfied RSC order 45 r 3(3). Fineland would have been able to satisfy the court that Mrs Pritchard's son, who was living with her, was likely to have received sufficient notice of the proceedings. There was no material put before me to show that her son had any rights binding on Fineland. There was no material before me to show that Mr Carew-Reid was in actual possession of the premises.
33. I now need to consider Mrs Pritchard's separate point that even if the writ of possession was properly issued, she should have been given notice of the intended eviction. However, there is simply no requirement in any High Court rule or in the forms for the writ of possession that notice needs to be given to the persons against whom the order for possession will be executed.
34. It follows from the above that the writ of possession was validly issued and there was no procedural defect in the manner of execution of the order for possession.
35. The order for possession in the present case was enforceable against Mr Carter who had no rights as against Fineland, entitling him to retain possession. As to Mr Carew-Reid, I had no evidence that he had been in possession of the premises on or before the 1^st April 2011. Further, in so far as Mr Carew-Reid relies upon the contract which he says he made with Mrs Pritchard in June 2004, that contract is not binding on the leasehold interest held by Fineland as the contract was not at any relevant time protected by registration at the Land Registry. Fineland's entitlement to possession is pursuant to its title as lessee of the premises. Further, although I need not decide anything on this point, the genuineness of the alleged contract of June 2004 calls out for investigation.
36. I have held that the writ of possession was valid and that possession has been recovered pursuant to it. In any case, Fineland was entitled to enforce the order for possession in its favour without issuing and enforcing a writ of possession: see Aglionby v Cohen [1955] 1 QB 558 and McPhail v Persons Unknown [1973] Ch 447 at 457. Proceeding in that way would not infringe section 3 of the Protection from Eviction Act 1977 as the licence which Mrs Pritchard enjoyed from 9^th August 2004 to 30^th August 2004 would appear to have been a gratuitous licence and therefore an excluded licence pursuant to section 3A(7) of that Act.
37. It is apparent from the entirety of the proceedings and the applications on the part of Mrs Pritchard that she contends that unlawful violence was used in connection with the eviction. Conversely, Fineland allege that Mrs Pritchard acted unlawfully in resisting the eviction and it refers to the fact that she was arrested on a charge of aggravated trespass pursuant to section 68 of the Criminal Justice and Public Order Act 1994.
38. If one or other of the parties involved in the eviction on 1^st April 2011 behaved unlawfully then such behaviour is not to be condoned. However, any unlawful actions on the part of Fineland or the Enforcement Officers or the police on or after the eviction do not invalidate the recovery of possession by Fineland, with or without the benefit of a valid writ of possession. If Mrs Pritchard is able to establish such unlawful behaviour, I would not regard that as a justification for making an order that she be restored to the premises. In view of the judgment of the Deputy Judge on 31^st January 2011 and my finding that Mrs Pritchard has not shown a real prospect of the order for possession being set aside, the effect of restoring her to possession of the premises would be that Fineland would then be required to evict her a second time which, on my findings, they would be able to do. I would not regard the grant of an injunction leading to a second eviction as conferring any worthwhile benefit on Mrs Pritchard.
39. The above conclusions deal with the Claimants' application for an order allowing them to enter, or re-enter, the premise. There is also the question of the Claimants having access to the premises to remove their possessions. Fineland did not oppose the Claimants having a suitable opportunity under suitable supervision to remove the relevant items. At the conclusion of the hearing on 13^th April 2011, I indicated the order which I would make in this respect and I need not repeat that matter in this judgment.
40. The application which was made on 7^th April 2011 was served on the Third Defendants and on the Fourth Defendants. The Third Defendants were the solicitors who had acted for Fineland at an earlier stage in the 2006 proceedings until they were replaced by the Fourth Defendants. In addition to joining these Defendants to the application of 7^th April 2011, the Claimants also gave notice that they required a number of individual solicitors from the Third and Fourth Defendants to attend the hearing on 13^th April 2011 so that they could be cross-examined. The result was that the Third and Fourth Defendants separately instructed counsel to represent them at the hearing.
41. I held at the hearing on 13^th April 2011 that the Claimants' conduct in giving notice to the Third and Fourth Defendants as Respondents to the application of 7^th April 2011, which really only concerned Fineland, and also the application to cross-examine individual solicitors at the two firms was open to criticism on the grounds that it was unnecessary to require the Third and Fourth Defendants to attend the hearing and it was wrong to apply for an order that individual solicitors be cross-examined. I therefore dismissed any application in these respects against the Third and Fourth Defendants. I further ruled that I would certify that the applications against the Third and Fourth Defendants were totally without merit and that the Claimants should pay the costs of the Third and Fourth Defendants. They applied for costs to be assessed on the indemnity basis. I directed that they should have permission to apply at a later point for costs to be on the indemnity basis. My reason for postponing that particular decision is that the Claimants have made allegations against the Third and Fourth Defendants which remain to be dealt with at a future hearing and so as not to prejudge what might be determined at a future hearing, I will not rule at this stage on whether the costs of the hearing on 13^th April 2011 should be on the indemnity basis.