Friendship Care and Housing Association Ltd v Awotula

There are a number of applications before me, which require some consideration of the somewhat convoluted procedural history of this claim. The claim itself is, at heart, a simple one.

The relevant chronology is as follows.

In or about July 1999, the Defendant, Dr Titus Awotula, entered into an assured tenancy agreement with Places for People Homes Limited (formerly the North British Housing Association) (“Places for People”) for the tenancy of 184 Hermitage Road, Loughborough, Leicestershire.

On 9 December 2013, Places for People sold a portfolio of properties of which it was landlord, including 184 Hermitage Road, to the Claimant, Friendship Care and Housing Limited, a social housing charity which is an Industrial and Provident Society registered with and regulated by the Housing and Communities Agency. Of course, in line with ordinary principles of land law, the property was sold subject to the Defendant’s lease – and, that same day (9 December 2013), pursuant to section 3 of the Landlord and Tenant Act 1985, the Claimant wrote to the Defendant at the property notifying him that it was the new landlord and that all rent etc should be paid to it, and notifying him of the new landlord’s address for service. Under the tenancy agreement, that was good service of that notice.

The Defendant fell behind with his rent. On 13 June 2014, the Claimant served a notice under section 8 of the Housing Act 1988, seeking possession on discretionary Grounds 10 and 11 of Schedule 2 to that Act, on the basis that some rent was unpaid and the Defendant persistently delayed paying lawfully due rent. The effective date of the notice was 14 July 2014. On 30 July 2014, the Claimant issued possession proceedings on Ground 10, on the basis that £474.12 rent was outstanding. On 4 August 2014, the Claimant notified the Defendant of the hearing date of the possession claim, by serving him at the property.

The hearing was at Leicester County Court on 8 September 2014. The Defendant did not attend. District Judge Hedley made an order for possession on or before 11 September 2014, £1,274.20 for rent arrears, a per diem amount for use of the property, and costs.

On 19 September 2014, the Defendant applied to set side that order on the basis that he had been abroad from 16 March to 9 September 2014, and did not know about the hearing. On 3 October 2014, he filed a Defence to the claim, saying that the Claimant was not his landlord. That was the only substantive defence upon which he relied. After an adjournment at the Defendant’s request, the application to set aside was set down for hearing on 21 January 2015.

In the meantime, the Defendant issued two further applications. First, on 3 October 2014, he issued an application to set aside or stay the warrant of possession pending his application to set aside the possession order. Second, on 20 November 2014, he issued an application seeking an injunction or mandatory order on the basis that the transfer of his tenancy agreement from Places for People to the Claimant was void because of a failure to comply with section 8 of the Landlord and Tenant (Covenants) Act 1995.

On 21 January 2015, the matter came before District Judge Reed who dismissed the Defendant’s application to set aside the possession order of 8 September 2014, and his application of 20 November 2014, declaring both to be totally without merit. He directed that the warrant could be executed forthwith. He refused permission to appeal.

On 2 February 2015, the Defendant issued an Appellant’s Notice seeking to appeal against the order of 21 January 2015, the appeal route being to a circuit judge in the county court. On 8 February 2015, he issued a further application seeking a stay of execution on the warrant of possession pending the determination of the appeal.

On 10 February 2015, at a hearing attended by the Defendant, Her Honour Judge George found that the grounds of appeal were not arguable and she thus refused the application for permission to appeal. She also dismissed the application for a stay of execution of the warrant, and declared both applications to be totally without merit. Unfortunately, for some reason there is no transcript available of that hearing, despite requests and a direction of His Honour Judge Worster that a transcript be obtained. However, I consider that I can fairly and justly deal with the applications before me without such a transcript.

The warrant for possession was executed later that day, 10 February 2015.

On 25 February 2015, the Defendant lodged an Appellant’s Notice against the order of 10 February 2015, on the basis that Judge George had conspired with other judges at Leicester County Court to victimise the Defendant as part of institutionalised racial persecution of him. The route of appeal from Judge George’s order was to the High Court.

On 10 March 2015, the Defendant applied for an injunction to require the Claimant to keep safe and secure his “material and intellectual properties for 20 years worthy (sic) millions of pounds”, and from disposing of his possessions upon which (he said) his whole life depended. He said that he had only been allowed 3-4 hours to remove his possessions from the property, and had left most of them at his former home because he did not have anywhere else to store them.

On 24 March 2015, His Honour Judge Worster sitting as a High Court Judge struck out the appeal against Judge George’s order refusing permission to appeal against Judge Reed’s order; and directed the application for permission to appeal against her dismissal of the Defendant’s application to set aside the warrant of possession be set down for an oral hearing.

On 14 April 2015, the Defendant applied to set aside Judge Worster’s order striking out the appeal against Judge George’s order refusing permission to appeal from Judge Reed. On 15 May 2015, Judge Worster directed that that application be treated as including an application to extend time, the application otherwise (he considered) being out of time. On 17 June 2015, the Defendant issued an application to set aside that order. However, I need not consider that application further, because, for the purposes of the substantive application to set aside Judge Worster’s order of 24 March 2015, in the Defendant’s favour, I shall treat that application as in time.

Consequently, I now have before me the following extant applications:

In relation to Applications 1 and 2, a crucial issue is whether the Defendant has shown any possible substantive defence to the possession claim. He has not. His only purported defence is that he never entered into a tenancy agreement with the Claimant, but rather with People for Places; but that is no defence at all. As a matter of conventional land law, unless restricted (e.g.) by the terms of the lease, a landlord is entitled to sell the reversion, i.e. his interest in the property, subject of course to the lease. Although Places for People did not retain a copy of its tenancy agreement with the Defendant, the Defendant himself accepts that he had such an agreement; he accepts that the tenancy was in the landlord’s standard form (which is available); and there is abundant evidence that, on 9 December 2013, the freehold of the property was transferred from Places for People to the Claimant (e.g. the formal notification of a scheme transfer of properties between two registered providers to the Homes and Communities Agency). There were no restrictions of transfer of the freehold in the tenancy agreement between Places for People and the Defendant. Such restrictions would, of course, be highly unusual. Section 3 of the Landlord and Tenant Act 1985 requires notification of that transfer to the tenant – so that, amongst other things, the tenant knows to whom he must continue to pay rent – and that was done by the Claimant to the Defendant by notice on 9 December 2013. Section 8 of the Landlord and Tenant (Covenants) Act 1995 is not to the point: it concerns the appropriate procedure for a former landlord seeking the release of a covenant after he has transferred the reversion.

I now turn to the specific applications before me.

Before me, the Defendant raised a new objection to Judge Worster’s order of 24 March 2014, namely that, in the heading of the order, it says that it was made in the Leicester County Court – but the order could only be made in the High Court. That point has no force. The order is properly sealed with the seal of the High Court in Birmingham – the appeal centre for Leicester cases – and the rubric at the top of an order forms no part of the order itself. The body of the order makes it clear that Judge Worster was sitting as a High Court Judge.

As his substantive ground, the Defendant submitted Judge Worster was wrong to strike out his appeal against Judge George’s order refusing permission to appeal against the order of Judge Reed. However, Judge Worster was unarguably correct to make the order that he did, for the reasons that he gave. Section 54(4) of the Access to Justice Act 1999 provides that no appeal may be made against a decision of a court to give or refuse permission to appeal. The effect of that provision is that no appeal lies from an order to refuse permission to appeal (Moyse v Regal Partnerships Limited [2004] EWCA Civ 1269). The Defendant described the provision as “an obnoxious oppressive law which must be expurgated from the statute book”; but it is an extant statutory provision, and one binding on me. It has obvious benefit in the public interest, as it prevents a party to litigation from proceeding to waste further time and effort on an appeal if both the original court and appeal court consider the basis of the appeal unarguable.

This application is refused. It is totally without merit.

The second application is for permission to appeal against the other substantive part of Judge George’s order – to set aside the warrant of possession. That is not, of course, caught by section 54(4).

The Defendant before me submitted – at least, at one stage – that Application 2 was dependent upon Application 1, i.e. if Judge Worster’s order were upheld, then the rest of the appeal would be empty. However, in substance, the Defendant did put forward substantive submissions in respect of Application 2. He submitted that that the original possession order was a judgment in default under CPR Part 12; but judgments in default cannot be made in possession proceedings, and so Judge Hedley’s order was unlawful.

The Defendant is correct in his proposition that a claimant cannot obtain a default judgment in a possession action: such a claim does not require a written response from the defendant (CPR rule 55.7(11)); and therefore the concept of a judgment in default of appearance has no place in possession proceedings. Part 12 has no application. That is expressly confirmed in CPR rule 55.7(4) and CPR 12 PD, paragraph 1.3(5)).

Possession claims are subject to the comprehensive regime of CPR Part 55, which requires a hearing of the claim to be set down. The defendant’s submission that Part 55 does not apply to a claim by a landlord for possession from a tenant is simply wrong: Part 55 expressly applies to such claims (CPR rule 55.2(1)(a)(i)).

In this claim, the Claimant complied with the provisions of Part 55. It was unfortunate that the Defendant was abroad during the whole of the relevant period, and therefore did not know of the hearing. However, on his return, it was of course open to him to seek to set aside the possession order, on the basis that (i) he had a good reason for not attending the hearing to put his defence (which he could show, as he was abroad at the relevant time), and (ii) he had a possible defence to the claim (which he could not show, because, for the reasons I have given, his purported defence was no defence at all). There would be no point in setting aside a possession order obtained in good faith, even where the defendant did not know of the hearing, if the defendant has not suffered any prejudice because he has no sensible defence to the claim. I do not have a transcript of the hearing before Judge Reed; but it seems that he refused to set aside the possession order on that basis.

In respect of the substantive part of Judge George’s order not covered by Application 1 – i.e. her refusal to set aside the warrant of possession – I refuse permission to appeal. The order for possession of 8 September 2014 remained (and remains) good. There was no reason why that order should not be effected by a warrant of possession. The immoderate grounds of appeal – suggesting that Judge George and other judges who have dealt with this case are in some sort of conspiracy to persecute the Defendant on the grounds of race – has no evidential basis. There is not a shred of evidence that Judge George or any other judge has not simply applied the law as they are bound to do. The possession order was granted, and thereafter maintained, not because of a sinister conspiracy against the Defendant, but because he was in rent arrears which he did nothing to cure.

This application is refused, as totally without merit.

This application is also has no merit. Of course, one can sympathise with the Defendant if he has no place readily to store his possessions; but his former landlord has no legal obligation to store them for him, securely, at its cost. It has an obligation to give him reasonable opportunity to collect and remove the possessions, which it appears to have done.

This application too is refused.

For those reasons, each of the three applications before me is refused. None of the applications before me has any merit, and each should be marked on the order as totally without merit.

I believe that I have dealt with all of the Defendant’s applications – both the Defendant and Miss Fahy confirmed that these were the only current applications in this claim – but, for the avoidance of doubt, if I have not, I formally dismiss any outstanding applications concerning the possession order and warrant of possession, both of which were and are, undoubtedly, legally good. The warrant of possession was, of course, executed several months ago.

In this claim, the Defendant has made seven applications that have been declared to be totally without merit. In the circumstances, Miss Fahy seeks a Civil Restraint Order (“CRO”) to protect the Claimant from further such applications. In any event, given the declarations I have made, I am bound by the CPR to consider making a CRO against him (CPR rule 3.3(7)).

A CRO does not prevent a person having access to a court. However, it requires a person to apply for and obtain permission of the court before making any claim or application to the court. Such orders are made to prevent abuse of the court by parties who make claims and applications that lack any merit. Of course, where a claim or application has some merit, then permission, if required, will be granted. An Extended CRO prevents the subject party from issuing any claim concerning any matter involving or touching upon or relating to the proceedings in which it is made, or an application in any such proceedings in a specified court or courts without the permission of a judge.

The circumstances in which the court may make such an order are set out in CPR 3 PD 3C. A CRO involves a two-stage process. First, the court must consider whether it has jurisdiction to make the order it is considering. For an Extended CRO, it must be satisfied that the relevant party “has persistently issued claims or made applications which are totally without merit” (CPR 3 PD 3C, paragraph 3.1). “Persistence” for these purposes requires there to have been more than two claims or applications that were totally without merit (Courtman v Ludlum [2009] EWHC 2067 (Ch)). As I have described, the Defendant has had seven applications declared to be totally without merit. He has clearly been persistent in making applications and pursuing appeals that are totally without merit.

However, even if the court has jurisdiction to make an order, there is a second stage. The court must exercise its discretion as to whether to make an order or not.

In this case, in all of the circumstances, I consider that the court’s discretion should be exercised to make an Extended CRO. In coming to that conclusion I have taken into account, not just the number of claims and applications without merit he has made in the past, but the consequences for the Claimant, which has had to pursue this claim, and respond to applications and appeals, without reimbursement of any costs, because the Defendant has failed to meet any costs orders made against him. The Claimant cannot expect a better return in the future, if it has to face more meritless applications. Furthermore, I am quite sure that, without such restraint, the Defendant will continue to pursue meritless litigation to the inconvenience and cost of the Claimant, despite the possession proceedings being substantively over with the execution of the warrant for possession in February. Indeed, in his submissions to me in respect of the CRO application, the Defendant made quite clear that he has every intention of continuing to pursue this litigation, by whatever means, undeterred. Indeed, as I understood him, he said that he proposed to issue a further application, or applications, today.

As I have indicated, meritless claims are unfair to those who have to respond to them. The effort that the Claimant has had to put into the various claims and applications in this case is obvious. But such claims are also seriously detrimental to the interests of justice. The court is required by CPR rule 1.1 to deal with cases justly, which includes dealing with them proportionately, ensuring that an appropriate share of the court’s resources is allocated to any particular case (CPR rule 1.1(e)). That is because the resources of the court are both derived from the public purse, and they are finite – indeed, in these times of public spending constraint, they are very limited. Where those resources are expended on a claim which lacks any merit, then that robs the parties of claims with merit of timely justice.

In all of the circumstances, I am quite sure that it is appropriate and indeed necessary to make an Extended CRO against the Defendant, without which he will continue to issue meritless applications.

Consequently, I will restrain the Defendant in broadly the following terms, namely, whether personally or through any servant or agent, from issuing any proceedings in the High Court of Justice or in any County Court in England and Wales against the Claimant, or any proceedings concerning any matter involving or relating to or touching upon his tenancy and occupation of 184 Hermitage Road, Loughborough – or from issuing any application, appeal, or other process in this action or in any other action in any such court concerning any of those matters – without first obtaining the permission of the Designated Civil Judge for Birmingham or, in his absence, another circuit judge in that court. There will be a right of appeal to a High Court Judge; but that will be restricted to a paper application. The order will last for two years, and will consequently expire on 14 July 2017, unless it is renewed.

The order, Dr Awotula, means that you must obtain the permission of a judge in accordance with the terms of the CRO before issuing any claim or application relating to the subject matter of this claim as defined in the order. If an application is made without that permission, it will be automatically dismissed. If you seek to issue proceedings or an application without obtaining the requisite permission, then that will be a contempt of court, for which you may be punished, in appropriate circumstances by imprisonment.