Court of Appeal Finds That The Stay On Possession Proceedings Due To Covid-19 Is Lawful

On 11 May 2020, the Court of Appeal gave judgment in the appeal of Arkin v Marshall [2020] EWCA Civ 620, which was concerned with whether or not the stay on possession proceedings due to last until 25 June 2020 is lawful.

The Court of Appeal held that Practice Direction 51Z is a pilot, is lawful and is compatible with article 6 of the European Convention on Human Rights. The Court of Appeal also considered whether a court has the power to lift the stay and said that “although as a matter of strict jurisdiction a judge retains a theoretical power to lift any stay, it would almost always be wrong in principle to use it. We do not, however, rule out that there might be the most exceptional circumstances in which a stay could be lifted, in particular if it operated to defeat the expressed purposes of PD 51Z itself.”

The Court of Appeal also provided some helpful clarification on the effect of the stay on directions in possession claims. It explained that the provision in the Practice Direction that disapplies the stay for “an application for case management directions which are agreed by all the parties” (paragraph 2A(c)) is for the purpose of applying to the court to have agreed directions embodied in a court order “and nothing more”. This will allow parties to agree dates that post date the end of the stay thereby ensuring that the case is not delayed for a directions hearing or for directions to be agreed after the stay expires. The parties may also agree to take certain steps, such as voluntary disclosure during the stay, but the court cannot require them to do so. Furthermore, a party cannot apply to enforce compliance with agreed directions during the stay, but will be able to rely on any failure to do what was agreed once the stay is lifted and the court is looking at making any revised directions.

Eviction, Unlawful Eviction & Covid-19

Recent media reports and social media excerpts suggest there has been an increase in attempts by landlords during the current Covid-19 (Coronavirus) crisis to evict their tenants including one national report of a landlord attempting to evict a paramedic by text. This article answers in brief some of the questions that tenants and landlords may have in an already worrying time.

What process should a landlord follow if they wish to evict lawfully?

Most tenants with a private landlord have an assured shorthold tenancy (there are exceptions, for example, if the landlord lives in the same property with the tenant). If a tenant has such a tenancy, the landlord can usually only evict the tenant lawfully if it serves a notice under either section 21 of the Housing Act 1988 (a no fault eviction process) or section 8 of the Housing Act 1988 (where the landlord says the tenant is at fault such as because of rent arrears) and obtains a court order and gets the bailiff to enforce any possession order.

Are there any measures currently in place to prevent a landlord evicting during the Covid-19 (Coronavirus) crisis?

The government and judiciary have taken steps to prevent a landlord from evicting a tenant during the current pandemic.

The government has changed the law so that the notice that a landlord needs to serve on the tenant as a prerequisite to any possession claim (regardless of type of tenancy) is now 3 months (section 81 and schedule 29 of the Coronavirus Act 2020). This change in the law, at the time of writing, will continue until 30 September 2020.

The judiciary has introduced a new Practice Direction to the Civil Procedure Rules (Practice Direction 51Z) to stay (put on hold) all possession proceedings and action to enforce any possession order for 90 days from 27 March 2020.

What can a tenant do if a landlord seeks to unlawfully evict?

Unlawful eviction is a criminal offence so a tenant can contact the police for assistance. If it is suggested that this is a civil matter only, the tenant should refer the police to section 1 of the Protection from Eviction Act 1977.

Unlawful eviction also gives rise to a civil cause of action. A tenant who is unlawfully evicted can seek an injunction from the court ordering the landlord to reinstate the tenant to the property and can claim damages (compensation) for the unlawful eviction. A solicitor, Shelter or a Law Centre will be able to assist with such a claim and legal aid is available if the tenant qualifies in terms of means (income).

What are the consequences for a landlord who unlawfully evicts?

A landlord who unlawfully evicts his or her tenant is guilty of a criminal offence unless he or she proves that he or she had reasonable cause to believe that the tenant had ceased to occupy the premises. This offence is punishable by a sentence of up to 2 years in prison.

A landlord who unlawfully evicts could also face proceedings in the civil court. The first and most immediate remedy that will be sought by the tenant is an urgent injunction to reinstate the tenant and notwithstanding the Coronavirus crisis the courts are likely to deal with such injunction applications urgently. In addition, a tenant can make a claim for damages (compensation). A recent Court of Appeal decision acknowledged that awards for damages for unlawful eviction are generally between £100 and £300 per day. This author suggests that in the current climate awards are likely to be towards the upper end of that range. In addition, an unlawfully evicted tenant can seek exemplary and aggravated damages, which altogether can be in the thousands of pounds.

What can a landlord do about a tenant who is acting in an anti-social manner or committing a nuisance in these unprecedented times?

Injunctions remain available and are not subject to the stay that has been imposed on possession proceedings. Social Landlords and Local Authorities can seek an injunction under the Anti-Social Behaviour Crime and Policing Act 2014. A private landlord can seek an injunction to enforce the terms of the tenancy agreement so, as long as the landlord has a good and comprehensive tenancy agreement, he or she can take action in the event of a breach to enforce the terms.

Does Coronavirus affect the tenant’s obligation to pay rent?

Coronavirus is likely to have a significant impact on the incomes of both landlords and tenants, but the contractual obligation on the tenant to pay the rent remains the same. Those landlords and tenants that are struggling financially should communicate with one another (by phone, email or letter in the current climate of restrictions) as this is far more likely to promote understanding and a good landlord and tenant relationship.

For landlords, during this uncertain period the government has stated that it “will ensure that support is available where it is needed for landlords” and there is a 3 month mortgage payment holiday available where landlords have a buy to let mortgage.

For tenants, the government has introduced various support measures depending on whether you are employed or self-employed and more information on these can be found on the government website or through citizens advice.

Magdalen Chambers has specialist Housing and Property Litigation Teams that remain fully functional during these difficult times and are able to advise tenants and landlords alike on any issues they are facing. In the event that you need assistance in any such matters we can be contacted on our usual telephone number 01392 285200

Appealing a Homelessness Decision Out of Time: A Welcome Sense of Realism Injected by the Court of Appeal in an Age of Legal Aid Advice Deserts

On 30 January 2020 the Court of Appeal handed down judgment in an important case concerned with bringing a homelessness appeal pursuant to section 204 of the Housing Act 1996 after the 21 day time limit prescribed.

The decision is Al Ahmed v Tower Hamlets LBC [2020] EWCA Civ 51 and it involved an appellant appealing out of time because he was unable to find legal advice and assistance to help him issue an appeal. At first instance, the Judge held that there was a good reason for allowing the appellant to bring an appeal out of time. That decision was reversed by the High Court, but the Court of Appeal allowed an appeal and restored the decision of the first instance Judge.

A number of important points arise out of this decision.

The first is the court’s conclusion that the Mitchell/Denton principles do not apply to section 204 appeals and the question of whether or not there is a good reason for allowing an appellant to bring a homelessness appeal out of time.

The second important point is the recognition given by the Court of Appeal to the realities of the post-LASPO climate. At paragraph 34 the Court of Appeal states: “I have summarised the evidence placed before this court by Shelter. It presents a bleak picture of the difficulties faced by homelessness applicants in bringing an appeal under s.204 of the 1996 Act without legal advice and representation, and of the difficulties they may face in finding someone provide those services under legal aid, especially as a result of the post-LASPO shrinkage of the housing advice sector.”

The third important point is that the court stressed that whilst every case depends on its own facts and circumstances, these were factors that could be taken into account. The court explained that: “it would be both surprising and unfair if difficulties of that kind could not be taken fully into account and given appropriate weight in the assessment of whether there was a good reason for failure to bring an appeal in time and, to the extent that it arises as a separate issue, for delay in applying for permission to bring an appeal out of time.”

The court was careful to ensure that this is not perceived as them giving carte blanche to delay and therefore said: “Where an applicant relies on the fact that he was unrepresented and was seeking legal aid as a reason for non-compliance, the circumstances will need to be examined with care, including scrutiny of the diligence with which he acted in seeking legal aid.” However, the willingness by the Court of Appeal to recognise the true position on the ground and that this may be a good reason for not bringing an appeal within time, when such appeals are complex and based on points of law only, is a welcome step in the right direction.

As a final word of caution, the position will be different where the appellant has had legal advice throughout the review. Nonetheless, anyone who has practised in this area of law will have encountered appellants who have only found assistance too late, and this decision offers some hope for such individuals.

Court of Appeal Gives Judgment in Livewest v Bamber [2019] EWCA Civ 1174

The Court of Appeal has handed down judgment in Livewest v Bamber [2019] EWCA Civ 1174 – a case concerned with whether or not 6 months notice is required to end a fixed term tenancy by the use of a break clause.

In February 2017 Miss Bamber was granted a fixed term assured shorthold tenancy for 7 years of residential premises. That tenancy contained a break clause that Livewest were entitled under the terms of the tenancy to exercise at any time during the starter period, which was an initial period of 12 months capable of extension for a further 6 months (giving a total potential starter period of 18 months).

During the starter period Livewest exercised the break clause due to allegations of anti social behaviour and served a two month notice that complied with section 21(1) of the Housing Act 1988 and the conditions for the exercise of the break clause in the tenancy.

The issue on this appeal was whether or not sections 21(1A) and 21(1B) of the Housing Act 1988, which were introduced by the Localism Act 2011, meant that a six month notice had to be served. Section 21(1A) of the Housing Act 1988 states that section 21(1B) of the Housing Act 1988 applies to an assured shorthold tenancy if “it is a fixed term tenancy for a term certain of not less than two years” and “the landlord is a private registered provider of social housing.” The argument of Miss Bamber was that these conditions were both fulfilled and therefore the effect of section 21(1B) of the Housing Act 1988 was that a six month notice was required.

In the High Court ([2018] EWHC 2454) Miss Bamber’s argument was rejected on the basis that at the time the court came to consider the case the tenancy was no longer a fixed term tenancy for a term certain of not less than two years and therefore the first condition in section 21(1A) of the Housing Act 1988 was not satisfied. The Court of Appeal (at paragraph 42) agree that this analysis cannot be correct as this would be to render the provisions of no effect – by the time the court comes to consider a tenancy in any case it cannot still be a fixed term tenancy. However, the Court of Appeal took the view that a purposive and restrictive approach should be taken towards the word “expiry” in section 21(1B) of the Housing Act 1988 with the effect that this should be read as meaning expiry by the effluxion of time only in this context. This means that the requirement to serve a six month notice only applies where the tenancy in question is being brought to an end by the effluxion of time and therefore does not apply where a break clause is being exercised.

An additional issue that is briefly mentioned in this appeal is whether or not, in cases where section 21(1B) of the Housing Act 1988 does apply, the 6 month notice must be served before or at the end of the fixed term tenancy in order to have effect. Whilst Patten LJ offered a provisional obiter view on this all three members of the Court of Appeal have left this issue to be decided in a future case where the point is of direct application.

A copy of the full judgment can be found here:

EWCA/Civ/2019/1174

Miss Bamber was represented throughout by Russell James of Magdalen Chambers and Cathy Morley of Shelter (Plymouth).

Court of Appeal Grants Permission to Appeal in Livewest v Bamber 

The Court of Appeal has granted permission for a second appeal in the case of Livewest v Bamber [2018] EWHC 2454. This case concerns the correct interpretation and application of sections 21(1A) and 21(1B) of the Housing Act 1988 which apply to fixed term tenancies granted by registered providers of social housing. 

In a judgment of the High Court (Dingemans J) handed down on 27 September 2018 it was held that a 6 month notice in writing, as required by section 21(1B) of the Housing Act 1988, was not needed to end a fixed term tenancy of more than 5 years during the starter period of such a tenancy. 

Miss Bamber has been given permission to appeal against that decision by the Court of Appeal, who will consider later this year whether or not the approach taken by the High Court was correct. 

Miss Bamber is represented by Russell James of Magdalen Chambers and Cathy Morley of Shelter (Devon). 

High Court Dismisses Social Landlords Appeal Against Refusal to Make a Possession Order

On 25 September 2018, Mr Justice Birss dismissed an appeal by Curo Places Limited against the decision of HHJ Matthews of 7 March 2017 in which the judge refused to make a possession order on grounds of breach of tenancy and anti social behaviour that was being sought in respect of a vulnerable and disabled tenant.

Following a two day trial in March 2017 HHJ Matthews held that it was not reasonable to make a possession order against Ms Walker having regard, amongst other things, to the poor sound insulation in the property and the mental health conditions of the tenant. The judge also found that a defence based on disability discrimination contrary to the provisions of the Equality Act 2010 was made out.

Curo (the landlord) appealed against the decision of HHJ Matthews and argued that the judge was wrong to find that he was not bound by a conviction (the particulars of which were unspecified), failed to properly consider the effect of the tenant’s behaviour on her neighbours, erred in his approach in relation to issues concerning sound insulation in the property, was wrong to entertain the Equality Act 2010 defence when this was not pleaded and reached a decision that was perverse. Each of these grounds were rejected by The Honourable Mr Justice Birss who held that the basis for the appeal involved a mischaracterisation of the judgment of the court below and that the judge had properly carried out the assessments he was required to and was not plainly wrong in coming to the decision that he did.

A copy of the full judgment of the appeal can be found here: https://www.bailii.org/ew/cases/EWHC/QB/2018/2462.html

The successful tenant and respondent to this appeal was represented both at trial and on appeal by Russell James of Magdalen Chambers

The Court of Appeal Gives Judgment in Fundamental Dishonesty Case

On Monday 30 October 2017 the Court of Appeal gave judgment in the case of Howlett v Davies [2017] EWCA Civ 1696, which concerned the issue of fundamental dishonesty for the purpose of removing the costs protection provided by Qualified One Way Costs Shifting (‘QOCS’). Rule 44.16 of the Civil Procedure Rules provides the exceptions to the costs protection provided by QOCS and specifically provides in relation to fundamental dishonesty as follows: “Orders for costs made against the claimant may be enforced to the full extent of such orders with the permission of the court where the claim is found on the balance of probability to be fundamentally dishonest.”

The facts of the case are of limited relevance but in brief concerned a claim by a mother and son that they had been passengers in a vehicle that had reversed into another stationary vehicle. They alleged that they had suffered injury and sued the driver of the vehicle they claimed to have been a passenger in. The driver of the vehicle they were in also gave evidence supporting the case of Mrs Howlett and her son.

At the start of the trial counsel for the Howletts attempted to get the defence struck out on the ground that the defendant insurers should either allege fraud (which they didn’t) or accept that the accident occurred as alleged with the consequential injuries. It was contended that the Howletts “should not be allowed to sit on the fence”. The application to strike out was dismissed and the fast track trial (taking 4 days) proceeded. At the conclusion of the trial the deputy district judge found that there was fundamental dishonesty, dismissed the claims and allowed the defendant insurer to enforce their costs. The Howletts appealed firstly to HHJ Blair QC who dismissed their appeal and then secondly to the Court of Appeal resulting in this judgment.

2 principal points of importance arise out of this decision of the Court of Appeal (judgment of Newey LJ with whom LJJ Lewison and Beatson agree).

Firstly, the Court of Appeal approve the meaning of fundamental dishonesty given by HHJ Moloney in the County Court decision of Gosling v Hailo (2014) in which he said:

“It appears to me that when one looks at the matter in that way, one sees that what the rules are doing is distinguishing between two levels of dishonesty: dishonesty in relation to the claim which is not fundamental so as to expose such a claimant to costs liability, and dishonesty which is fundamental, so as to give rise to costs liability.

The corollary term to ‘fundamental’ would be a word with some such meaning as ‘incidental’ or ‘collateral’. Thus, a claimant should not be exposed to costs liability merely because he is shown to have been dishonest as to some collateral matter or perhaps as to some minor, self-contained head of damage. If, on the other hand, the dishonesty went to the root of either the whole of his claim or a substantial part of his claim, then it appears to me that it would be a fundamentally dishonest claim: a claim which depended as to a substantial or important part of itself upon dishonesty.”

Secondly, the Court of Appeal dealt with the main issue in this case, which was whether or not a defendant insurer had to expressly plead fundamental dishonesty in order for there to be such a finding. This was answered in the negative with Newey LJ stating as follows:

“I do not think an insurer need necessarily have alleged in its defence that the claim was “fundamentally dishonest” for one-way costs shifting to be displaced on that ground. Where findings properly made in the trial judge’s judgment on the substantive claim warrant the conclusion that it was “fundamentally dishonest”, an insurer can, I think, invoke CPR 44.16(1) regardless of whether there was any reference to fundamental dishonesty in its pleadings.” (Paragraph 32).

This news article is written by Russell James of Magdalen Chambers who appeared earlier this year in a successful County Court appeal on a fundamental dishonesty point