Secretary of State for Defence v Nicholas

This is an application on behalf of Miss Helen Nicholas, to set aside an order made by Deputy Master Matthews granting the Secretary of State for Defence, the claimants in these proceedings, permission to issue a written possession. This relates to property at 4 Thorn Avenue, Bushey Heath, Herts of which Miss Nicholas was, until recently, in occupation.

As I understand it she initially went into occupation there, those premises are military premises and she occupied them as the wife of an Air Force Officer. Unfortunately she and her husband divorced and he left the property and she has remained in occupation since then. The Secretary of State for Defence has pursued proceedings against her on the grounds that she is not entitled to remain in possession.

Those proceedings are currently at this stage. An appeal against an order granting possession was dismissed by the Court of Appeal by order dated 4^th February 2015 after a hearing at which both parties were represented by counsel. The appeal was dismissed and the Court of Appeal ordered that the appellant, Miss Nicholas, give the respondent possession of the property by 31^st March 2015. They also dismissed her application for permission to appeal and dismissed her application for an injunction to restrain the respondent from seeking to evict her from the property pending the outcome of her application for permission to appeal further.

What happened then was that she sought and was granted an extension of time for making an application for permission to appeal to the Supreme Court and I have seen a letter exhibited to the witness statement of her instructing solicitor made in support of application from the Supreme Court dated 16^th February 2015. That acknowledges her notice of an application for public funding and writes to tell her that the time for her application for permission to appeal or notice of appeal is extended until 28 days after the final determination of the application for public funding. If the certificate for public funding is issued this means, the letter says, that she has 28 days after the date of issue printed on the certificate in which to lodge an application for permission to appeal. The letter says:

“You should notify the other parties that you have been granted this extension of time.” (Quote unchecked)

It is not entirely clear to me on the evidence whether Miss Nicholas or those advising her did notify the Treasury Solicitors, but it seems that whatever steps they took did not come to the attention of the relevant person, who is Mr Peter Williams, who has appeared before me this afternoon on behalf of the Secretary of State. Miss Nicholas was represented by Miss Amy Knight of counsel.

What happened after that was that an application dated 11^th June 2015 was made for permission to issue a writ of possession and that matter was dealt with on the papers by Deputy Master Matthews, who made the order on 24^th June granting permission. That order was sealed on 25^th June. That order was made on the basis, as it states in the recital, of reading a witness statement by Peter Williams, who is a grade 7 lawyer employed by the Treasury Solicitor. In that witness statement Mr Williams describes the trial in the High Court and the order for possession made by Burton J back in August 2013 and refers to the appeal having been dismissed by the order of 4^th February 2015, which as I have described, required Miss Nicholas to vacate the property by no later than 31^st March. He says at paragraph 6 of the witness statement:

“To the best of my knowledge and belief the defendant has not applied for permission of the Supreme Court to appeal further to that court and there is in any event no order in force staying the order for possession.” (Quote unchecked)

And the order was therefore made.

The order was executed by the Sheriff of the High Court on 11^th August of this year. I have seen a witness statement of Miss Nicholas in which she describes how she had no notice of the eviction and did not become aware of it until some after the locks to the front door had been changed. At about 10a.m. on 11^th August 2015 she awoke to find that court bailiffs had entered the property without her knowledge and without being allowed to enter. She describes various health issues that she has which meant that she did not hear them entering the property with the locksmith. She was pressured, she says, to hurry and gather her belongings and leave the property. She says that the property has been her only home since June 2005 and she has no family and friends with whom she can reside and I have been told by Miss Knight that she is at the moment street homeless and living in her car.

There are two grounds on which Miss Knight sought to set aside the order of Deputy Master Matthews. The first was that the evidence on which it was based given by Mr Williams was incomplete because it did not refer to the pending, still pending potential application for permission to appeal to the Supreme Court and Miss Knight referred me to the case of Ahmed & Ors. (Claimants) v Shahid Mahmood & Ors. (Defendants [2013] EWHC 3176 QB in which Lang J set aside an order for a writ of possession on the grounds that there had been an abuse of process, because the application in that case had not disclosed a pending application or appeal and in fact in that case the first claimant had signed a statement saying that she certified that to her knowledge there was no application or other proceeding pending failing then to mention the appeal. Lang J records that in that case the first claimant was aware of the appeal, she could not say whether it was a deliberate misrepresentation, but it was certainly an error. She also said at paragraph 20 that:

“There are in my view sound legal and practical reasons for the court not to grant a writ of possession until liability has been finally determined, because of the difficulties which arise if possession order are enforced prematurely.”

She also refers to authority for the proposition that a warrant or writ cannot be set aside after execution unless it was obtained by fraud, abuse of process or oppression and she finds that the falsification was an abuse of process and she set aside the writ on that basis.

Mr Williams says that the situation in this case is distinguishable from that of Ahmed & Ors. v Mahmood, because there was no certification or confirmation by him that there was no further appeal pending and I also, as I have said, am not clear that he knew that it was, therefore this is at most an error. However, in my judgment, it is not at all clear whether Deputy Master Matthews would have made the order that he did make if he had been aware that time had been extended by the Supreme Court for an application for permission to appeal and that public funding was being sought.

Miss Knight fairly tells me that since the order made by Deputy Master Matthews was made there has been a provisional decision on the part of the legal aid public funding authority not to provide funding. But that, she tells me, is not a final decision and in any event the time limit for making an application to the Supreme Court has not yet expired. In the light of that, although no blame attaches to Mr Williams, I do consider that it is appropriate to set aside the order for possession.

The second ground that was relied on by Miss Knight is that no notice was given to Miss Nicholas or to the solicitors acting for her of the application to set aside. The application notice, as I said, is dated 11^th June 2015. In response to the question on the form: “What order are you asking the court to make and why?” It says: “In order for permission to enforce an order for possession of real property permission is required by CPR Part 83.13(2).” CPR 83.13(2) provides that: “… a writ of possession to enforce a judgment or order for the giving of possession of any land will not be issued without the permission of the court.” In the box on the form where it asks who should be served with this application, the claimant has responded: “Not applicable: CPR 83.13(4)”. However, CPR 83.13(4) refers to applications for permission under paragraph 3 of CPR 83.13. CPR 83.13(4) provides that an application under CPR 83.13(3) may be made without notice being served on any other party unless the court orders otherwise. CPR 83.13(3) provides that: “The court’s permission is not required for the issue of a writ of possession in a possession claim against trespassers under Part 55 unless the writ is to be issued after the expiry of three months from the date of the order.”

So, 83.13(4) is not necessarily relevant here, because that only refers to needing permission if the writ is to be issued against trespassers after the expiry of three months after the date of the order giving possession. It seems to me therefore, that there is a mismatch here, although Mr Williams says that they do not accept that Miss Nicholas is not a trespasser. It seems from what I understand that that her status as a trespasser or not is one of the issues that may well be determined ultimately by the Supreme Court if that appeal goes ahead.

Mr Williams’s second point on this is that CPR 83.13(8)(a) provides:

“The permission referred to in paragraph 2 will not be granted unless it is shown –

(a)

that every person in actual possession of the whole or any part of the land (“the occupant”) has received such notice of the proceedings as appears to the court sufficient to enable the occupant to apply to the court for any relief to which the occupant may be entitled. …”

Mr Williams says that that wording indicates that it is not necessary for her to have been given notice of the application for the writ of possession, because she had notice of the decision of the Court of Appeal and the order of the Court of Appeal requiring her to vacate the premises by 31^st March.

However, that is not how I read CPR 83.13(8). I note, as Miss Knight drew to my attention that in the notes at 83.13(9), it states that the effect of CPR rule 13.8(a) is that notice of an application for a writ of possession must be given to every occupant of the property and the court will not grant permission without the occupants having an opportunity to apply to the court for relief and it cites the case of Leicester City Council v. Aldwinkle The Times April 5 1991 CA in support of that proposition. Miss Knight also drew my attention to Jephson Homes Housing Association v Moisejevs & Another [2001] 33 HLR 54, which also refers to notice being given of the application for a writ of possession. In particular in paragraph 50 of that judgment Simon-Brown LJ said:

“I recognise, of course, that a case could occur when the tenant comes to be evicted without ever having been put on notice at all.  Aldwinckle, indeed, was such a case. The tenant would, of course, know of his breach of the suspended possession order. But, as in Aldwinckle, he might not know that the landlord was requesting a possession warrant or that the bailiff was proposing to execute it. As Aldwinckle decided, however, that of itself will not be regarded as oppressive.”

I note also that Rule 83.13(2) itself envisages that there will be a judgment or order for the giving of possession of the land, which is enforced by the writ of possession. So on this basis also I consider that notice should have been given to Miss Nicholas and those representing her and that the order made should be set aside on that basis too.

As to the terms of the order it seems to me that the draft order that has been placed before me and the relief sought in the application goes rather further than is warranted at this stage. In particular I am asked to order that the claimant shall not re-let the property until after the conclusion of the defendant’s appeal to the Supreme Court. This seems to me to go against what the Court of Appeal decided when refusing to grant precisely that relief after the dismissal of the appeal in their order of 4^th February.

The most that I can order is that the order of Deputy Master Matthews and the warrant of eviction be set aside, that the defendant be provided with a set of keys to the property to allow her access, that the claimant shall not re-let the property until after any further application for possession on notice is determined and the writ lawfully executed. I will therefore make an order in those terms.