Under the radar
On the 18th of June 2019, a case went through the High Court that probably went unnoticed by many housing rights types but which could have serious implications in particular circumstances, Birmingham City Council v. Afsar & Others.
While not actually a housing case, it will be familiar as a story to many people simply watching the news, concerning as it does, the case of the protestors outside of the Birmingham primary school where LGBT topics are being taught to the children.
Birmingham sought an injunction against Afsar and others, who are leading the protest. A ‘Without Notice’ injunction’ was granted by the courts to stop the activities, but Afsar successfully appealed on specific technical grounds that can have important ramifications in cases of illegal eviction.
Some background on illegal eviction
Where an illegal eviction has taken place and you seek re-entry of the displaced residential occupier because the landlord or agent can’t be talked around, then the luckless tenant has two main alternatives:-
- The use of force to re-secure entry under section 6 of the Criminal Law Act 1977
- Or if that isn’t feasible for a variety of reasons and it often isn’t, a ‘Without notice injunction’ is the common alternative.
Speed is of the essence in these situations, lest the landlord quickly re-let to another household and/or seize/destroy the tenant’s possessions. Bearing in mind that Safer Renting on average deals with around 3 illegal evictions every single week, the need for emergency action is commonplace to save the person’s home and protect their belongings.
In an ideal world
You want a solicitor on board because injunctions are not like parking tickets, they kick-start a damages claim further down the line, which involves serious litigation. But there are two problems:-
- Is the tenant eligible for legal aid?
- Can you find a legal aid solicitor on an emergency basis?
Even if number 1 gets the green light, you usually fall at number 2.
Legal aid housing solicitors are very, very thin on the ground and most of the time, they don’t have the capacity for cases like this. So the tenant is in the position of applying for their own injunction. In the case of Safer Renting’s clients, we do it with them and then serve it on the landlord, while we find a solicitor to take it further.
So why is the Afsar decision problematical for illegal eviction injunctions?
The courts focused down on the court rules relating to the application and granting of without notice injunctions, which are injunctions granted in emergencies, without the other party being present at the application.
At the granting of the injunction a hearing date is set, usually a week into the future, where, in illegal eviction terms, the landlord or agent can attend and put their side of the story, which may or may not influence the court.
The High Court noted several points (all quotes here from a civil litigation brief) :-
“The principle that the Court should hear both sides of the argument is an “elementary” rule of justice and “[a]s a matter of principle no order should be made in civil or family proceedings without notice to the other side unless there is very good reason for departing from the general rule that notice should be given”.
This is a point of principle I think anyone can understand – but it does tighten up the court’s discretion in emergency applications and is particularly difficult when you also look at the comments of Justice Warby, who noted:-
“Urgency can only be a compelling reason for applying without notice if there is simply no time at all in which to give notice. Modern methods of communication mean that will rarely, if ever, be the case, and it was not the position here. You do not justify applying in secret by showing that your case has merit”.
The problem here is that in most emergency illegal eviction injunctions I’ve done, justifying the granting of it on the merits of the problem was exactly what the courts considered.
The problem with this case and illegal eviction
The mechanics of illegal evictions are very different from people protesting outside of a school, the standard practice being for the rogue landlord or agent to go to ground, refuse to answer their phone or reply to emails and in addition, it is often the case that you don’t actually know where these people are physically to be found, due to the fake addresses and general smoke screens employed.
So the comment that it will rarely be the case that some sort of notice of application can be given is wide of the mark.
In the alternative, Civil Procedure Rule 23.3 is cited:-
“Any application to the Court should ordinarily be made by application notice, filed and served on the respondent, with the supporting evidence, not less than 3 days before the hearing”
“To ensure that court time is used efficiently there must be adequate preparation prior to the hearing. This includes the preparation and exchange of skeleton arguments, the compilation of bundles of documents …”, and the preparation of lists of authorities and bundles of authorities”.
Taken all together, you can see that the notion of preparing a case for an emergency injunction to get a person’s home back is now going to require some serious prep work beforehand, even presuming that you can persuade the court that it is an exceptional circumstance worthy of a without notice injunction.
Preparing for an illegal eviction case
In illegal eviction cases, you have to interview people, take statements and get them to sign forms at the same time that their families are split in different homes, sofa surfing and dealing with the homelessness unit to source emergency temporary accommodation, so its no easy trick.
All of which will add days to the preparation. Days during which possessions can be removed or destroyed and properties re-let.
This isn’t saying that ‘without notice injunctions’ can’t be applied for and there aren’t any new laws introduced. It’s just a case of the High Court drilling down into existing civil procedure rules and reminding applicants of the restricted interpretation.
But in the kinds of scenario prevalent in rogue landlord world, this decision could seriously hamper the ability of unlawfully evicted tenants to save their home, unless they get a particularly good judge, in a good mood, on a good day.
Rogue landlords are not families protesting outside of a school.
This article was prompted by 2 recent refusals for a without notice injunction applications that Safer Renting helped a tenant put in. the respective judges cited Afsar as the reason for refusal, where we would normally have had them granted.