Landlords launch legal action against government over lockdown evictions

Author: MARC DA SILVA

Original Source: https://propertyindustryeye.com/landlords-launch-legal-action-against-government-over-lockdown-evictions/

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).

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

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