20 Nov 2020

The lawyer representing buy-to-let landlords who feel that they have been left with no alternative but to ask the courts to review the actions of the government to try and get back their properties from tenants who have huge arrears of rent, has issued a letter to initiate the proceedings.

The letter, sent by David Smith, partner at JMW Solicitors, details the landlords involved and the case. It clearly states why the property investors have been left with no alternative but to take action, as they struggle to get their properties back following the tenant eviction ban.

The proposed claim for judicial review was received by the government on 6 November 2020 and their response was to hurry through some fresh legislation.

Smith, who is also legal counsel for the NRLA, said: “Such an important decision cannot simply be made by writing a letter on a whim. Many cases of rent arrears were in place before Covid-19 hit – and landlords must be able to tackle the most serious cases. This letter from the Lord Chancellor does not constitute a legal framework and has breached the landlords’ civil and human rights as well as usurping the power or Parliament. This must be corrected, and quickly.”

Vanessa Warwick, co-founder of Property Tribes, spoke to Smith via Zoom yesterday – an interview that you can watch at the bottom of this page.

In the meantime, here is the letter Smith sent to initiate the proceedings:

Our Ref: DAS/EMM/617038C.1/Hughes

Your Ref:

6 November 2020

The High Court Enforcement Officers Association
Drake House, Gadbrook Park
Northwich
Cheshire
CW9 7RA
England

By First Class Post and Email

Dear Sirs

Proposed claim for judicial review

We are instructed by Mr George Clark and Mr John Hughes in relation to guidance being
issued to County Court Bailiffs by the Ministry of Justice and an apparent HMCTS policy that
warrants of possession should not be enforced in Tier 2 and Tier 3 lockdown areas. We are
further instructed in relation to letters sent to High Court Enforcement Officers Association
requesting that their members do not enforce writs of possession in Tier 2 and Tier 3
lockdown areas. We should clarify that our instructions extend to any similar letter, guidance,
or policy issued in pursuance of the national lockdown made under the Health Protection
(Coronavirus, Restrictions) (England) (No. 4) Regulations 2020 (SI 2020/1200).

This letter is a formal letter before claim in accordance with the pre-action protocol for
judicial review under the Civil Procedure Rules.

Background

Our clients have obtained orders for possession and had applied for warrant of possession
prior to the original stay of possession proceedings in March 2020. In both cases these were
based on rent arrears which substantially pre-date the Covid-19 pandemic. Once possession
proceedings were recommenced they sought to have those warrants reactivated and
requested dates from the County Court Bailiff for execution. In both cases this was refused
on the basis of “HMCTS Policy” and/or “national guidance”. We attach an email sent to one
of our clients by the Bailiff’s office and Newcastle Civil and Family Courts. Our clients have
considered seeking enforcement through transfer to the High Court but they have been
informed that High Court Enforcement Officers (“HCEOs”) are not prepared to enforce writs
of possession. We are aware of correspondence from the Lord Chancellor to Mr Andrew
Wilson, the chair of the High Court Enforcement Officers Association, that requests HCEOs
not to enforce writs of possession. We note in particular the letter dated 21 October 2020
from the Lord Chancellor, which has been publicised by the Association, that asks the
members of the Association to “instruct the enforcement agents working under their
authorisation not to enter residential properties in areas that are classified as Local Alert
Level 2 (High) or 3 (Very High), for the purposes of enforcement, including … carrying out
evictions.”

The proposed defendants

Rt Hon Robert Buckland QC, Lord Chancellor

Her Majesty’s Courts and Tribunals Service

The claimants

Mr George Clark

Mr John Hughes

c/o JMW Solicitors LLP

King’s House, 36-37 King Street, London EC2V 8BB

Details of the claimant’s legal advisers, if any, dealing with the claim

JMW Solicitors LLP

King’s House, 36-37 King Street, London EC2V 8BB

Details of the matter being challenged

Our clients challenge the legality of the Lord Chancellor issuing letters or guidance to County
Court Bailiffs and HCEOs and HMCTS adopting a policy which provides that warrants and
writs of possession should not be enforced without appropriate primary or secondary
legislation being approved by Parliament.

Details of any interested parties

The High Court Enforcement Officers Association
Drake House, Gadbrook Park, Northwich, Cheshire CW9 7RA

The issue(s)

It is the contention of the Claimant that County Court Bailiff’s and HCEOs are under an
obligation to execute a lawful warrant or writ and could only decline to do so if so ordered by
a judge (e.g. a suspension of execution of possession order under s.8, Housing Act 1988) or
pursuant to a provision of the CPR/Practice Direction (as happened with PD51Z and CPR
55.29) or pursuant to an Act of Parliament (including secondary legislation made under a
relevant Act).

None of these conditions apply. There is no relevant court order which prohibits enforcement
of these (or any other) orders. There is no Practice Direction or provision of the CPR that
has such an effect. There is no other legislative basis which might apply. In short, there is
nothing which prohibits or prevents execution of a warrant or writ of possession in an area
subject to a local lockdown, a Tier 2 or Tier 3 Local Alert, or more widely in pursuit of the
more recent national lockdown. Instructions or requests issued by the Lord Chancellor or
policies adopted by HMCTS are not legitimate justifications for declining to execute a
warrant or writ.

In all regulations giving effect to a local lockdown, a Tier 2 or Tier 3 Local Alert or the recent
national lockdown there are exceptions in place which permit Bailiffs and HCEOs to carry on
their work in enforcing warrants and writs of possession. There are exemptions in all the
aforementioned regulations where persons are gathering whether within a household or
elsewhere for “work purposes” and where the gathering is due to a person “fulfilling a legal
obligation”. Both such exceptions permit the County Court Bailiff or the HCEO to enter a
private dwelling to carry out their work and fulfil their legal obligation to execute a warrant of
possession. Notably nothing in any such regulation makes any mention of the County Court
Bailiff or states that they should not issue or execute warrants of possession. In SI
2020/1200 there are specific exemptions permitting individuals to view residential properties
with a view to letting or buying them and to move house.

The refusal to execute a warrants and writs is causing significant detriment to our clients as
they are suffering from arrears of rent which continue to accrue. There is also a significant
detriment to landlords in similar situations more generally and to landlords as a whole as
they are unable to obtain effective enforcement of judgements.

It is the Claimants contention that, for the reasons set out above, the
guidance/directions/letters (as the case may be) issued by the Lord Chancellor and adopted
by HMCTS is ultra vires and a legal nullity.

Moreover, a refusal to permit enforcement of a lawfully obtained court order without a proper
basis in law is a breach of the rights guaranteed by the European Convention on Human
Rights (ECHR) as enshrined in UK law by the Human Rights Act 1988. The Claimants
contend that the provision of instructions to County Court Bailiffs and HCEOs not to execute
lawfully obtained warrants and writs amounts to:

1. A breach of their right to a fair and impartial determination of their civil rights by a
public tribunal as protected under Article 6 of the Convention. A refusal to permit
enforcement of an order of a court is no different from a refusal to permit a court
order to be obtained at all. The fact that the claimants are unable to ascertain any
period for which they will be unable to enforce their rights due to the manner in which
the restriction has been imposed and the fact that the policy is not publicly available
renders the breach all the more egregious. There can be no qualification of the
Article 6 right in this case as the right has been breached unlawfully and so no
reasonable qualification can apply.

2. A further breach of their right to the peaceful enjoyment of their possessions and their
right not to be deprived of them without fair compensation as protected under Article
1 of Protocol 1 of the same Convention. The Claimants are unable to secure control
over the premise s they own and are being deprived of the normal remedy against a
tenant who is not paying the rent. Again the breach of this right cannot be reasonably
justified or qualified as it has been carried out in an unlawful manner.

Action(s) that the defendant is expected to take

The immediate withdrawal of any instructions or policy which requests or requires County
Court Bailiffs not to execute warrants of possession and any similar letter or guidance
making similar requests or giving similar instructions to HCEOs.

Details of any information sought

The Claimant seeks disclosure of any legal advice provided to the Lord Chancellor which
would justify the issuing of the instructions, guidance or requests complained of, together
with copies of the text of any such instruction, guidance, request or similar which was sent to
HMCTS and/or any other affected party (including the Interested Party)

Details of any documents that are considered relevant and necessary

The Claimant seeks copies of the following documents:

1. The relevant guidance or policy produced by the HMCTS requires Bailiff’s not to
enforce warrants of possession in specific areas;

2. Any instructions from the Lord Chancellor or the Ministry of Justice to the HMCTS
causing the creation of said guidance or policy;

3. All correspondence or other guidance from the Lord Chancellor or Ministry of Justice
to individual HCEOs or to the High Court Enforcement Officers Association
requesting or requiring them not to execute possession orders, as discussed above.

The address for reply and service of court documents

JMW Solicitors LLP

King’s House, 36-37 King Street, London EC2V 8BB

david.smith@jmw.co.uk

Ref: DAS/EMM/617038C.1/Hughes

DAS/EMM/617180C.1/Clark

Proposed reply date

Given the pressing nature of this case and the ongoing serious detriment to our client and
our intention to apply for an urgent hearing for judicial review we request a response to this
letter no later than 1100 on 12 November 2020.

We look forward to hearing from you.

Yours faithfully

David Smith
Partner
For and on behalf of
JMW Solicitors LLP

Link to original article

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