AA v London Borough of Southwark [2014] EWHC 500 (QB)

The claimant (“AA”) had been a social housing tenant of the defendant (“LBS”) for 23 years and a tenant of the flat in issue since 2001.  The rent had been paid mainly by housing benefit, save for a weekly shortfall, which by 2013, had risen to £18.59 per week.  Throughout the period that AA had lived in the flat, he had been in arrears, since the shortfall was only paid intermittently.  By the date of his eviction the total arrears had reached £2,353.26.

 

In November 2006 a possession order was made.  This order was subsequently suspended by a sequence of orders (dated 20 February 2007, 6 September 2008, 12 November 2008 and 6 May 2010) that required AA to meet the rent liability and pay off any arrears in small weekly instalments.  Nothing was paid following the last of these orders and LBS applied for the execution of a warrant for possession.

 

AA applied for that warrant to be suspended.  That application was unsuccessful and the warrant was executed in April 2003.  The entire contents of the claimant’s flat, including his passport, lap tops, papers, personal belongings and furniture were removed from the flat and taken to and destroyed by a refuse disposal facility.

 

AA made repeated attempts in the High Court and the county court to regain possession and to regain his belongings.  He also made repeated unsuccessful attempts to discuss his predicament with various representatives of the defendant.  AA was street homeless for over a year and without financial resources (save for limited assistance from friends).

 

AA made a claim for reinstatement and for substantial damages for unlawful eviction, unlawful homelessness.  He also made a claim for the unlawful destruction of his possessions based on the torts of conspiracy, interference with goods, negligence and misfeasance in public office, breaches of the terms of his contractual tenancy and pursuant to the Human Rights Act under article 8 of the ECHR.

 

The principal form of action that AA relied on was that of the tort of civil conspiracy.  He relied on both forms known to the law, namely a concerted undertaking of an unlawful eviction and interference with his possessions and a similar undertaking of a lawful eviction and interference with his possessions using unlawful means.  The first form was the predominant form relied on.  The unlawful nature of both processes was:

  • the misuse of the LBS’s Housing Eviction Procedure laid down by LBS in the Housing Management Eviction Procedure (“EP”), which was mandatory;
  • the misuse of the Goods Retention Policies;
  • the failure to obtain the permission of a judge to apply for a warrant;
  • abuse of process in the eviction process; and
  • abuse of process in the subsequent defence of AA’s applications to stay the eviction and obtain re-entry and in the unlawful covering up of this wrongdoing.

 

LBS had applied for the issue of a warrant on 22 February 2013 and this was issued by Lambeth County Court on 26 February 2013 for execution on 23 April 2013.

 

AA contended that since the order for possession had originally been granted on 13 November 2006, LBS should have first obtained an order from the judge authorising the issue of the warrant because more than 6 years had passed since the grant of the order for possession (CCR 26r5(1)(a).

 

The authorities showed that it was only in exceptional cases that the court should exercise its discretion to permit a warrant to be issued outside the six year period.  CCR 26r5(1)(a) requires an application for permission to apply for a warrant outside the initial six year period to be supported by a witness statement or affidavit establishing the applicant’s right to relief.  Any judge, whether considering the application on paper or at an oral hearing, would need to bear in mind that it is only in exceptional circumstances that permission would be granted (Patel v Singh [2002] EWCA Civ 1938).  It followed that it was a very serious matter to deprive a defendant the opportunity for a court-review of an application for permission to apply for the issue of a warrant and why it will ordinarily be an abuse of process for a warrant to be issued and executed with permission when the underlying order was made more than six years previously.

 

In addition to the abuse of process arising from the way that the warrant was issued without the prior permission of a judge, LBS also conducted an abuse of process in its defence to AA’s application.

 

The officer of LBS was required to provide the court with accurate and full information about the tenancy, the tenant and the breached founding the application for possession and to make a full note of the judge’s reasons for his decision.  In fact, she provided no detail or documents, failed to inform the judge about the strength’s of AA’s case for a stay, was not prepared to enter into any dialogue with him about the arrears and had failed to comply with the Housing Management Eviction Procedure.  His Honour Judge Anthony Thornton QC therefore found that the conduct of the proceedings associated with the application for a warrant was an abuse of process.

 

The Judge also found that the five applications made by AA after he had been evicted were defended with similarly abusive practices.  In particular, the officers of LBS failed to bring to the attention of the court of LBS’s legal representatives the details of their unlawful conduct.  Subsequently, LBS had conducted the proceedings as if all claims save for the limited Torts (Interference with Goods) claim had been excised from the proceedings when no such limitation had been imposed.  This conduct flowed from the coercive and collusive conduct of LBS officers and the court found that this was also an abuse of process.

 

In breach of the eviction procedure, neither an “income officer” (primarily responsible for carrying out rent arrears evictions and required to attend with the bailiff at rent arrears evictions) nor a “resident officer” (responsible for taking an inventory of all possessions left in the property and ensuring that they were dealt with in accordance with section 41 of the Local Government (Miscellaneous Provisions) Act 1982 and LBS’s Storage and Disposal of Goods Procedure) was present at AA’s eviction.  The effect of section 41 of the Local Government (Miscellaneous Provisions) Act 1982 and LBS’s Storage and Disposal of Goods Procedure was that all the possessions left in a property had to be photographed and inventoried.  They then had to be taken into store and stored safely by LBS for one calendar month following their removal from the premises.

 

The court found that various officers of LBS had conspired to evict AA by unlawful means, to seize and destroy his possessions by unlawful means and to cause him harm and loss by evicting him and dispossessing him of his possessions.

 

Other causes of AA’s action were also made out.  The court found that each officer was liable for misfeasance in public office as the officers had exercised their powers as public officers in relation to a local authority secure tenancy for an improper motive.

 

The court also found that LBS were liable in negligence to AA in respect of the destruction of his possessions; liable in contract for acting in a way that significantly breached AA’s entitlement to quiet enjoyment of his tenancy; and that LBS had breached AA’s entitlement to respect for his private life.  Finally, the unlawful seizure and destruction of AA’s possessions gave rise to a claim under the Torts (Interference with Goods) Act 1977.

 

AA established that his eviction and the destruction of his possessions were unlawful and he was entitled to claim damages, not confined to special or general damages.

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