COVID-19, winter weather and High Court Enforcement Officers

COVID-19, winter weather and High Court Enforcement Officers

The UK can be a gloomy place in the midst of its winter and this year it is made worse by the prevalence of COVID in everyday life. Yet as the Lord Chancellor acknowledged in an open letter to High Court Enforcement Officers this autumn, enforcement is an important part of the administration of justice and must go on, despite the challenges caused by the pandemic. 

With the onset of winter, the UK’s Ministry of Justice has issued further guidance for how it wants to see enforcement administered throughout December and into early January.  The Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) (England) Regulations 2020 (“the regulations”) came into force on 17 November 2020. The regulations apply in England only.

Until 11 January 2021, the regulations prohibit attendance by any person at any “dwelling house” for the purposes of executing a writ of possession, or warrant of possession, or a writ of restitution.  The delivery of a Notice of Eviction is also prohibited until the end of the same date.  In effect, the eviction of residential or commercial tenants using a Writ of Possession is “off the table” until the first part of 2021.

There are however some exemptions to this strict prohibition.  They relate to particularly aggravating circumstances where the Government feels that the competing interests of preventing harm to third parties or taking action against egregious behaviour are sufficient to outweigh the public health risks.

In order for an exemption to apply, so that a landlord or landowner can enforce possession, the court must be satisfied of one or more of the following factual situations are in place.  Either:

  • the claim is against trespassers who are “persons unknown” – groups that fall into this definition include protestors, squatters and travellers;
  • the order for possession was made wholly or partly on the grounds of:
    • anti-social behaviour
    • nuisance or false statements
    • domestic abuse in social tenancies, or;
    • substantial rent arrears equivalent to nine months’ rent that predate 23 March 2020
  • the order for possession was made wholly or partly on the grounds of death of the tenant, and the person attending the property (being the enforcement agent) is satisfied that the property is unoccupied.

The exemptions are tightly worded giving a landlord little leeway to evict anyone unless the facts give rise to a ground for possession in one of these categories.  Even then the exemption must be proved to the satisfaction of the Court.  To do this claimants will need to be aware of the following:

  • For new possession orders between 17 November 2020 and 11 January 2021, in making an order for possession the court will record in the order if it is satisfied that the order falls within one of the exemptions mentioned above and will specify which regulation applies.  This includes the exemption for pre-Covid rent arrears, although in this instance the claimant will need to provide a detailed calculation of rent arrears showing precisely how they meet the definition in the exemption i.e. 9 months or more of arrears that occurred before 23rd March 2020.
  • In transferring a possession order to the High Court for enforcement, the claimant must give the chosen High Court Enforcement Officer a copy of a court order clearly showing that the case falls into an allowed exemption. If the claimant fails to produce an order in these terms, the High Court Enforcement Officer should not proceed with the eviction.

 

Where an exemption is not identified on the order (including orders made prior to 17 November 2020) the claimant should make an application by filing an N244 application under Part 23 of the Civil Procedure Rules, requesting the Court “to declare itself satisfied of the following matter set out at [specify the exemption in Regulation 2], namely [specify the matter]”. This application should be made ‘on notice’. The application should be sent to the court that made the original possession order. No fee is payable for this application.

The court will then seek to list the application for hearing on the next possession day with time available, having regard to the possession proceedings listing priorities issued by the Master of the Rolls.

These most recent Regulations also give rise to other considerations including:

  • If a writ of restitution arises from a writ of possession that had originally been identified as including an ‘exemption’, then enforcement may proceed. Otherwise, the claimant will need to make an application as above.
  • If enforcing a writ of possession made wholly or partly on the grounds of death of the tenant (one of the permitted exemptions), the person attending (the enforcement agent) the property must also be satisfied that the property is unoccupied. If this is not the case, they should not proceed with the eviction.
  • The regulations do not apply in Wales. 

 

Involvement of HCEO’s in This Process

 

The Ministry of Justice have stipulated in their Guidance that High Court Enforcement Officers should not approach the District Judge or Master directly with an application seeking to identify an exemption and this must be right.  Only the claimant, and the claimant’s legal advisors, can make an application to ensure the necessary exemption is expressly stated in the Order for Possession.  High Court Enforcement Officers who are also solicitors, and who can apply in that capacity through their recognised law firm could try this route but they must leave aside their HCEO position in relation to these applications.  In Shergroup’s own law firm/HCEO model, we would issue the application through Shergroup Legal, and instruct an agent to attend on our behalf. 

 

Summing Up

 

Eviction is never a pleasant affair – and it is right that the Ministry of Justice issue express guidance at this challenging time to control the eviction process so there is no room of misinterpretation on the Regulations or the policy that underpins them.  It is also right that High Court Enforcement Officers are expressly prevented in seeking to push forward an application for an eviction on behalf of claimants.  There is no short cut to parties appearing in person or seeking proper legal representation.  HCEOs have a vested interest in the outcome of an eviction and it cannot be right that they seek the Court’s permission to make an Order. 

We can expect further Regulations for Wales and for the months ahead.  

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About the author:

Claire Sandbrook is the CEO of Shergroup Limited, which originated from the long- established law firm of Burchell and Ruston and the Sheriff’s Office for Greater London and Surrey.

Claire’s story is one of humble beginnings.  She moved from her hometown of Norwich when she was just 18 to get a job with a London firm.  Her first job was with Burchell & Ruston as an audio typist.  That was 40 years ago.  After 3 years of typing she decided she had all that she needed to get herself to college and complete her law degree.  When she completed this and her Law Society examination, she was offered an article clerkship with Alastair and two years later he made her a partner when she qualified as an attorney. 

In 1992 she took an equity stake in Burchell & Ruston and embarked on designing a ‘Way Forward’ strategy for the firm which would diversify the business away from the reliance of the Office of Sheriff.  Even then she learned that you can never rely on one business revenue to sustain a business.  It is better to have several businesses under your brand to weather the ups and downs of business life.