HCEO’s What has been your experience?

Reply to the comment left by "David Carter" at "04/01/2016 - 19:07":

Hi David

As you know from my previous posts, I believe the HCEO route is good for debtors (former tenants) with seizeable assets, but of virtually no use for debtors who have very few or no assets (most of my former tenants). However, I did believe that HCEO action is effective in relation to tenant evictions, so I was somewhat surprised to receive this article this morning: http://nearlylegal.co.uk/2016/01/scandal-unfolds-high-court-enforcement/?utm_source=wysija&utm_medium=email&utm_campaign=mail+updates
which appears to indicate that various HCEO companies (including THe Sheriffs Office) are possibly acting unlawfully and exposing your landlord customers to unlawful eviction. I wondered if you could give re-assurance that the Sheriffs Office are not using the N293A form for tenant evictions?

Reply to the comment left by "Robert Mellors" at "07/01/2016 - 09:03":

David, I would also be very keen to read your response to Robert's question...

Unfortunately, the author (an anti-eviction solicitor) is misinformed and has not read the recent Guidance Notes issued by the Senior Master of the High Court.

I am out of the office at present but when in, shall post the details. I will also write my own article on the subject debunking his article.

What I can confirm is that they state that form N293A is perfectly legal to use in such circumstances.

Reply to the comment left by "David Carter" at "07/01/2016 - 10:36":

Hi David

Thank you for that re-assurance. I'm sure that if you correspond with the solicitor in question then he will also correct himself on his forum, i.e. update his opinion, in light of any information you provide.

Reply to the comment left by "David Carter" at "07/01/2016 - 10:36":

David

Can you post or send a link to this guidance? I would be astonished if it contradicts the provisions of the Civil procedure Rules, at 83.13 (and if it does, it is wrong).

By the way, I act for both tenants and landlords. I defend possession cases and I bring possession & eviction claims. My concern is that it is done lawfully, without exposing landlords to unnecessary risks and costs.

Reply to the comment left by "David Carter" at "07/01/2016 - 10:36":

CPR 83.13 is perfectly clear. And here is District Judge Backhouse on the use of N293A

Form N293A (‘combined certificate of judgment and request for writ of fieri facias or writ of possession’) requires the claimant or their solicitor to sign to certify that the judgment is to be executed against trespassers. Solicitors have been known to give this certification when the occupier is no such thing – leading to judges calling in the offending solicitor to explain their apparent contempt of court.

And here is District Judge Salmon in Birmingham City Council v Mondhlani (2015) EW Misc B41 (CC)

The form N293A at the bottom has the words 'This judgment or order has been sent to the High Court for enforcement by (Writ of Possession against trespassers) only.' That wording is very significant. Permission of the Court is not required for the issue of a writ of possession against trespassers (see CPR83.13(3)). However, a secure tenant even after a possession order has been made and possession has not been given up is not a trespasser following the changes made to the Housing Act 1985 by the Housing and Regeneration Act 2008 that has effect from 1st April 2009. Court staff, no doubt relying on the N293A form, are simply issuing writs of possession. They have no authority to do so in a case where the tenant is not a trespasser. Writs of possession in these circumstances require permission from a judge under CPR83.13(2) and the judge has to be satisfied that appropriate notice has been given under CPR83.13(8).

I do not know why solicitors acting for Marston Group Limited have completed inaccurate forms. This addendum judgment is not the place to speculate. What is clear is that the practice must stop.

An assured tenant - including ASTs - likewise remains a tenant up until execution of an eviction warrant.

Your clarification is awaited.

I am not qualified to comment on which is the correct procedure.

However, I would think that when a court has made an order for possession and the tenant hasn't complied with it eviction should be quick (within 7 days) and without undue red tape.
Anything else is a waste of time and resources, including for courts.

What this discussion highlights once again is that the eviction process post court order is broken and plagued with red tape. That's the only scandal here as far as I'm concerned.

I have also a nagging feeling that some would like to shoot down HCEO evictions.

Reply to the comment left by "Romain Garcin" at "07/01/2016 - 13:37":

Eviction doesn't have red tape - one application form for CC bailiffs. I agree that the delay in county court bailiffs appointments in many courts is ridiculous, but that is a resource issue, not a legal or procedural one.

Transferring to the High Court was always intended to be a recourse in particularly urgent or unusual circumstances, thus there are a different set of rules and hoops.

The fact that it was thought necessary to have a second route for 'urgent' cases in itself shows that the system is not designed to be quick and efficient.

Even if it takes a single form to instruct CC bailiffs the procedure behind it is unduly slow by design (e.g. sending notification to tenant with an additional delay before eviction is carried out) irrespective of resources issues.

Reply to the comment left by "David Carter" at "07/01/2016 - 10:36":

David (and any landlord unsure of the potential consequences of using N293A) might also want to consider this - from a comment left on my post by a barrister:

Agree with you 100% Giles – as did the judge in my own case of a tenant evicted by HCEOs on the basis of a Form N293A. High Court out of hours application Friday. Returned Monday. Re-admission ordered pending further return date at which landlord’s solicitors (I assume nervous of being keelhauled by the court for their use of said form) got counsel to negotiate a very substantial sum in respect of damages for illegal eviction and our costs – so unfortunately we never went back in front of the court to argue it. Judge held (albeit at one-sided hearing) it was an abuse to use N293A against a tenant as the form – signed by the solicitor – contained a false statement that the tenant was a trespasser. I didn’t go into the contempt point as it wasn’t relevant but I suspect the issue would have been examined quite forcefully had the landlord’s solicitors not made their hasty settlement.
We had applied on the failure to comply with 83.18 but on seeing the papers the use of N293A emerged as the unarguable point.