Home Group Limited v Jacqueline Emery & anor, Edmonton County Court 08/08/16 (County Court decision unreported elsewhere)

This is a county court case, so not binding, but involves an interesting issue on what might amount to oppression in obtaining a possession order via the rent arrears section of the pre action protocol for possession by social landlords.

Mrs E and her husband were joint assured tenants of HomeGroup Ltd. A possession claim was brought on grounds of rent arrears, grounds 11 and 12. It appears that Mrs E’s health conditions, including heart disease, spinal problems and osteoarthritis, were a reason for a transfer to the property.

The possession proceedings had apparently been responded to and attended, across 5 hearings, solely by Mrs E’s husband. Eventually, in May 2016, a possession order was made, on arrears of £6,859.12.

Once bailiffs attended the property on 2 August, Mrs E immediately applied to set aside the possession order.

Mrs E’s case was that the attendance of the bailiffs was the first she had known about the proceedings and that and no stage pre-issue had the claimant contacted her individually.

The Defendant’s husband was characterised as a rogue figure. He had been in and out of prison for fraud, had intercepted post relevant to the client’s tenancy and Court proceedings, and unbeknown to the client had attended Court and made outlandish offers to clear the arrears. An example of this can be seen from entries in the rent account schedule where it appears a payment of £8,000 was made to the Claimant only for it be bounce within a matter of days.

The Claimant argued that the Defendants’ are joint tenants and that they had followed a valid process right up to eviction and even if the client was not aware of this, providing the necessary court papers were sent to the premises in the name of the parties the current eviction should stand.

The court has a power to stay suspend, set aside possession orders. This is extinguished when a warrant has been executed apart from evidence of the following:

1) Oppression
2) Fraud
3) The possession order itself is set aside.

Mrs E argued that oppression in this case arose because the Claimant had failed to comply with the CPR pre-action protocols for possession by social landlords – Paragraph 2.1 expressly states that where contact is by letter “the Landlord should write to the parties separately”. If this had been done, then Mrs E would have been aware of the arrears issue and likely the Claimant would have become aware of the control Mr E was exerting.

Mrs E also argued that the CPR 39.3.5 criteria –  when party does not attend a trial – were met, as Mrs E:

1) Acted promptly
2) Had good reason for not attending the hearing
3) Had a reasonable prospect of success

The court accepted that Mrs E had been in the dark up to the bailiffs attending and had acted promptly thereafter. Mrs E’s position on the possession claim had reasonable prospects on a commitment to pay £2000 immediately and £100 per week towards the arrears.

On the issue of oppression, the court accepted that the pre action protocol on rent arrears required contact by letter to be to each named tenant and that this had not been done, and that bringing possession proceedings on the back of this failure amounted to oppression as an unfair reliance on strict legal rights.

The warrant and possession order were set aside. A suspended possession order was substituted on terms of payment of £2000 and thereafter £100 per week towards the arrears.

No order as to costs.

THIS ARTICLE

The above article first appeared in NearlyLegal.co.uk on 10.8.2016. Material for this article was provided by Martin Davis of 33 Bedford Row and Sean Shanmuganathan of Tyrer Roxborough Solicitors. This case has since been reported in Legal Action Group (LAG).

NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.