A scandal unfolds: High Court enforcement again

Since our previous post on this topic, it has become apparent that there are significant and widespread issues with evictions of tenants by High Court writ, specifically by some High Court Enforcement Officer firms.

In our last post, we dealt with the issue of an application for a High Court writ being made in tenant possession cases by way of form N293A. To recap, this is the form which expressly states “This judgment or order has been sent to the High Court for enforcement by (Writ of Possession against trespassers) only”.

The significance of this form is that a writ of possession against trespassers does not require the permission of a High Court Judge, or indeed notice to the occupiers of proceedings (in the High Court) under CPR 83.13(8)(a). The High Court office issues such writs as an administrative act, without having to go before a judge. In effect, they are rubber stamped.

But this is valid as against trespassers. Not, categorically not, against tenants after a possession order. Form N293A must absolutely not be used for a writ against tenants.

However, I have seen clear evidence that at least three of the larger HCEO firms dealing with tenant evictions have used form N293A to apply for writs of possession against tenants (and/or told landlords to use that form/provided them with that form to sign) and done so routinely for years. This includes at least one (and probably more) of the HCEO firms that have taken part in television programmes, carrying out tenant evictions.

Here is an example from August 2014 from an HCEO website (full screenshots of this and other pages have been taken in case they vanish).

There are quite a few HCEO firms that state that they can obtain a writ ‘within 24 hours’ or ‘in one day’. Given the unlikelihood of obtaining permission for a writ from a High Court Judge within a day, let alone via a District Registry, one can only suspect the use of N293A in these cases too.

There is no legitimate reason for this to have happened. The position on the use of N293A has been clear for years. Here, for example is District Judge Backhouse writing in the Gazette on the topic in January 2014.

As DJ Backhouse notes, wrongly certifying to the High Court that the writ is against trespassers – by use of the N293A – may well be a contempt of court. It is certainly an abuse of process.

A writ obtained by abuse of process could probably be set aside, even after execution (and very likely where the abuse of process enabled the writ to be obtained and eviction executed without notice to the defendant tenant).

In addition (or alternatively, if setting aside the warrant would cause a concurrent tenancy in the situation of a re-let property), there would be a potential unlawful eviction claim by the tenant, against the landlord.

Where I have seen evidence of their use of form N293A for tenant evictions, I have asked HCEO firms for their response. But I have not received any reply at all.

There we are. There is a high likelihood that at least some of those tenant evictions you saw High Court Enforcement Officers carry out on TV programmes were obtained through an abuse of process, and many, many more that weren’t on TV.

So what needs to happen now?

1. HCEO firms need to come clean about whether or not they have used N293A to apply for writs for tenant eviction since 5 April 2014. And whether they continue to do so.
2. HCEO firms need to stop use of N293A for tenant evictions immediately, if they have been doing so, and comply with CPR 83.13(8)(a) – taking note of Nicholas v Secretary of State for Defence, High Court, Chancery Division, August 24, 2015 (link to our note)
3. HMCTS should ensure that High Court offices and District Registries in particular are alert to these issues with use of N293A and the offices should check whether the County Court possession order was against tenants on receiving an N293A.
4. Landlords should be aware that if they use an HCEO that gets them to use form N293A they are potentially at risk of the writ being set aside and/or a claim for unlawful eviction, against them personally, putting them at risk of having to pay significant damages and costs, as well as potentially having to let the tenant back into the property.
5. Landlords should be very sceptical of any claim to obtain a writ within ‘a day’ or ’24 hours’, as this is unlikely to involve permission being given by a High Court Judge, particularly if the HCEO says it will be using a regional court or District Registry.
6. Tenants and their advisors need to be aware of their rights and of the potential to set aside a writ obtained by abuse of process and/or potential unlawful eviction.

This needs to be dealt with. It appears to be a large scale and widespread abuse.