Government’s approach is almost certainly unlawful

by Property118.com News Team

9:53 AM, 29th October 2020
About 3 months ago

Government’s approach is almost certainly unlawful

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Government’s approach is almost certainly unlawful

Evidence is emerging that County Court Bailiffs and High Court Sheriffs (HCEOs) are declining to enforce warrants and writs of possession.

Guidance has apparently come from the Lord Chancellor to Bailiffs, and the High Court Enforcement Officers Association has also publicised a letter received from Robert Buckland, the Lord Chancellor, asking them not to enforce writs of possession in areas with Tier 2 and Tier 3 lockdowns.

David Smith, partner at JMW Solicitors, says: “Naturally, evictions create hardship for those being evicted, probably more so right now. However, leaving tenants with huge arrears in place also creates hardship as the debt will follow them.

“The problem with the Government’s approach is that it is almost certainly unlawful. It is not open to Bailiffs or HCEOs to simply decline to enforce warrants and writs, even if the Lord Chancellor asks them to do so. They have a duty to do this. Indeed, there is a power to complain to the County Court, in the County Courts Act, about losses resulting from Bailiffs not enforcing warrants.

“This approach flies in the face of the new structures created around the re-opening of the courts for possession. Of course the government can prevent evictions if it wishes to. But it should do so lawfully by making regulations under the appropriate legislation and allowing Parliament to review them, not through backdoor letters to enforcement bodies. I have offered to seek judicial review on this on a “no win, no fee” basis for affected landlords.”


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Comments

Seething Landlord

10:12 AM, 31st October 2020
About 3 months ago

Reply to the comment left by Chris @ Possession Friend at 30/10/2020 - 13:10"No win no fee" implies that if they win there will be a fee payable so perhaps people are concerned about how that would be calculated.

Chris @ Possession Friend

10:25 AM, 31st October 2020
About 3 months ago

Reply to the comment left by Seething Landlord at 31/10/2020 - 10:12
Everyone ( I thought ) knows that the loser ( I.e. Govt ) pays the winners fees ?

Northernpleb

10:40 AM, 31st October 2020
About 3 months ago

Reply to the comment left by zhorik at 31/10/2020 - 08:33
Hi Zhorik, This is Shocking, You and every one else affected by this should give JMW Solicitors your case details. We all need to give them as much ammunition as we Can. Remember this is our lively hood the Government is systematically destroying.
It is going to David and Goliath Battle. And hopefully this at least will be the first skirmish.

Robert Mellors

11:02 AM, 31st October 2020
About 3 months ago

I have had a case where the bailiffs refused to carry out two (linked) evictions:

Possession application 8th December 2019, N5 issue date 9th December 2019.
Hearings took place 7th January 2020. Court gave 7 day possession on one case, and 28 day possession on the other case. (N26 order for possession by 4th February 2020).
5th February 2020 both tenants still in situ so application submitted for bailiff eviction. (n325).
EX26 Notice of bailiff appointment, date of bailiff eviction set for 10.30am Monday 23rd March 2020.
Friday 20th March 2020 I get a call from the bailiff saying that they are not going to carry out the eviction due to the risk of Covid. (NOTE: This call (and indeed the scheduled eviction itself) were BEFORE the national lockdown).
The following week the Government issues guidance to courts to suspend evictions.

This means that the bailiff's took it upon themselves, one week prior to any guidance or instructions from the government or the judges/courts, to cease enforcing lawfully obtained county court judgments. This was an administrative decision by the bailiffs, without, as far as I can see, any lawful authority to take such action (cease enforcing county court judgments).

Thankfully the tenants left of their own accord a few weeks later, and the further destruction of the property by the tenants and their associates also came to an end.

Seething Landlord

12:18 PM, 31st October 2020
About 3 months ago

Reply to the comment left by Chris @ Possession Friend at 31/10/2020 - 10:25
No, in broad terms the loser pays the winner's costs on the basis determined by the court. Fees conditional upon winning are a different matter.
But your reply raises the question of who pays the defendant's costs in the event of the claim failing.

Chris @ Possession Friend

12:29 PM, 31st October 2020
About 3 months ago

Reply to the comment left by Seething Landlord at 31/10/2020 - 12:18JMW have three strategies to manage that.
1. Is that JMW will ask the court for a Cost Prevention order, usually granted but not guaranteed.
2. JMW will set up a Crowd-funding page so that all landlords will be able to support it to a modest extent. and
3. As many claimants as possible are being sought so in event of there being a shortfall from the above, the burden would be shared. - might some Landlord Insurance policies cover legal action ?
( There are 000's of landlords affected by this and you may have heard the news that a National Lockdown from Wednesday until at least 1st December is expected to be announced by the government. )
It should be remembered that JMW and their barrister would not receive a penny for all their time and work in the event of a loss, so you would imagine they are fairly confident. David Smith the infamous housing solicitor of JMW has the bottle for this to be fair, but it needs landlords to step forward.
Added of course are many legal commentators who express their surprise that no-one has yet taken legal action against the government.

Seething Landlord

13:04 PM, 31st October 2020
About 3 months ago

Reply to the comment left by Chris @ Possession Friend at 31/10/2020 - 12:29
Thanks for the clarification, which may reassure some who are wavering.
Have NRLA been approached for support for the proposed action?

Northernpleb

13:44 PM, 31st October 2020
About 3 months ago

Reply to the comment left by Chris @ Possession Friend at 31/10/2020 - 12:29Very Well Said Chris.
As Individual Landlords we are easy meat. A Scape Goat. For the Government Broken Housing Policy.
But between we house a 4.5 million Households. Or approximately one fifth of all households in the Country.
But the Government and Councils treat us as Mugs.
We need some one to get united behind and David is willing to step up to the Plate.
Source Ministry of Housing English Private Landlord Survey

Chris @ Possession Friend

14:32 PM, 31st October 2020
About 3 months ago

Reply to the comment left by Seething Landlord at 31/10/2020 - 13:04
Ha ,... 😉 Seething landlord, are you having a Giraffe ?
Of course NRLA have been ' approached ' - I'll leave it up to everyone to guess their response.

S Hindosh

13:56 PM, 1st November 2020
About 3 months ago

What is the name and details of the Solicitor who is happy to take this matter forward to the Supreme Court? can you please send me their details. I need to contact them urgently and may appoint them to take my case forward.

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