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||Neutral Citation Number:  EWHC 500 (QB)
||Case No: HQ13X02922
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||14 October 2014
B e f o r e :
HIS HONOUR JUDGE ANTHONY THORNTON QC
Sitting as a deputy judge of the High Court
London Borough of Southwark
The claimant represented himself
Mr Kelvin Rutledge QC (instructed by The Director of London Borough of Southwark Legal Services) for the Defendant
Hearing: 18, 19, 20, 28 & 29 November and 23 December 2013
Formal hand down of judgment in open court: 14 October 2014
FORMAL HAND DOWN OF HTML VERSION OF JUDGMENT IN OPEN COURT: 14 OCTOBER 2014
HTML VERSION OF JUDGMENT
Crown Copyright ©
- This summary does not form part of the judgment. It is intended to provide a brief summary guide to the reasons for and the result of this case.
- The claims. An anonymity order confined to the identity and precise address of the claimant has been made in this case. However, any fact referred to in this judgment is not subject to that order.
- The claimant had been a social housing tenant of the defendant for 23 years and a tenant of the flat in issue since 2001. His rent in that flat had mainly been paid by housing benefit save for a small weekly shortfall which he had to pay which, by 2012 had risen to £18.59 per week. Throughout the period in that flat, he had been in arrears since this shortfall was only paid in part and intermittently. This had the consequence that his total arrears by the date of his eviction had reached £2,353.26. In November 2006, a possession order was made which was subsequently suspended by a succession of 4 orders culminating in one dated 6 May 2010. These required the claimant to meet his current weekly rent liability and pay off the arrears in small weekly instalments. Nothing was paid following the last of these orders and the defendant applied for the execution of a warrant for possession.
- The claimant unsuccessfully applied for that warrant to be suspended and it was executed on 23 April 2013. The entire contents of the claimant's flat including his passport, lap tops, papers, personal belongings and furniture were removed from the flat by the defendant and were taken to and destroyed in a refuse disposal facility. The claimant made repeated unsuccessful attempts in the High Court and county court to regain possession and to regain his belongings and also made repeated unsuccessful attempts to discuss his predicament with various representatives of the defendant. He was for a period of over a year street homeless and without financial resources save for the use of a sofa or floor space in accommodation of friends for part of this period and financial assistance from those friends.
- The claimant's claims were for reinstatement and for substantial damages for his unlawful eviction, unlawful homelessness and 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 defendant's defaults. The starting point was the defendant's conspiracy involving 3 of the defendant's employees in the Housing department to the effect that the claimant should be evicted at all costs and without the opportunity to obtain a further suspension of the possession order obtained in November 2006. Since the order had been suspended more than 6 years before the defendant wished to execute it, the defendant was not entitled to apply for a warrant, an administrative procedure that did not involve a judge, without first obtaining permission to apply from a judge. Having obtained the warrant, the defendant's housing officer failed to place the full facts of the case to the court at the hearing of the claimant's application for a further suspension. The conspiracy also involved the relevant defendant's housing officers short-circuiting the defendant's standard procedures that should have been followed before and during the execution of the warrant and the taking of a dispossessed tenant's possessions into storage for safe-keeping. These procedures were intended to ensure that any execution of a warrant for possession was fairly, safely and lawfully undertaken. The conspiracy continued as an attempted cover-up of the unlawful nature of the original conspiracy and of the unlawful consequences of that conspiracy that had led to the claimant's unlawful eviction, the destruction of the claimant's possessions and his homelessness without financial resources for a lengthy period.
- Findings - permission to apply for a warrant of execution. It has been a requirement for many years that a landlord must apply to a judge for permission to apply for a warrant for possession if the original possession order had been made more than 6 years prior to the order even if the order had been suspended by a judge on terms that had not been complied with in the intervening period. That requirement is currently provided for in CCR 26r5(1)(a) as confirmed by the decisions of the Court of Appeal in Hackney LBC v White (1996) 28 HLR 219 and Patel v Singh  EWCA Civ 1938. The judgment confirms that those decisions and the underlying CCR were applicable to the defendant's application for a warrant in this case and to the claimant's eviction pursuant to that warrant. It finds that the defendant's contention that the 6-year period only started to run after an order in Hassan form further suspending the possession order had been made on 20 February 2007 was unsustainable. The warrant and its execution were, on that ground alone, unlawful.
- Findings - the various torts and breaches of contract. The judgment reviews the evidence at great length and reaches the following conclusions:
(1) The eviction was unlawful and an abuse of process both because the warrant was issued without the prior permission of the court and in the manner in which it was executed.
(2) The various officers of the defendant conspired to evict the claimant by unlawful means, to seize and destroy his possessions by unlawful means and to cause him harm and loss be evicting him of his possessions by unlawful means. This conspiracy was subsequently covered up by a further conspiracy which gave rise to abuse of process in the subsequent court proceedings and to a continuing deprivation of the claimant's enjoyment of his tenancy and loss of his possessions.
(3) Three officers exercised their powers as public officers in relation to a local authority secure tenancy for an improper motive with the intention of harming the claimant by having him evicted when there were no reasonable grounds for his eviction and by arranging for his possessions to be seized and destroyed unlawfully.
(4) The claimant had, as a result of these facts, also been caused loss by the negligence of the defendant, by its breach of his right to the quiet enjoyment of his tenancy and as a result of the lack of respect shown to his private life by the defendant.
(5) The claimant was entitled to substantial damages that extended to special or general damages, aggravated and exemplary damages and damages for breach of contract and for the various torts he had been subject to and for equitable remuneration for the lost work stored on his hard drives, discs and memory sticks and for his lost photographs as well as a remedy for the loss of his tenancy on a basis still to be determined.
- The remedies and damages to be awarded were to be dealt with at a second trial. The parties however reached an out of court settlement that disposed of the remaining disputes as to remedies.
His Honour Judge Anthony Thornton QC:
Part 1 - Introduction
1. General overview
- AA was a secure tenant of the London Borough of Southwark ("LBS") for over 23 years between November 1989 and April 2013 on the North Peckham Estate, London, SE1. Initially, his tenancy was at 20 Blendworth Way but following LBS's decision to demolish and rebuild that part of the Estate, he was retenanted in a one-bedroom flat on 26 February 2001. There was no evidence of rent arrears during his first tenancy. However, throughout the period of his second tenancy, AA always received Housing Benefit which met most but not all of his weekly rent and was paid directly to the Housing Department of LBS. The rent shortfall was initially £18.80 per week and it remained at that level over the years so that when the flat was repossessed on 23 April 2013, it was £18.59 per week.
- AA only made infrequent weekly payments from his own resources to meet the accumulating shortfall which was further increased from time to time by temporary stoppages of Housing Benefit payments which were not always subsequently paid in full once those payments were reinstated. LBS obtained a possession order on account of AA's arrears on 13 November 2006 which was subsequently suspended by a sequence of orders dated 20 February 2007, 6 September 2008, 12 November 2008 and 6 May 2010. Following further persistent non-payment of the sum due weekly for the rent shortfall of £18.59 plus £3.30 off the arrears following the last of these suspended orders, LBS applied for the execution of a warrant for possession and, when it was executed on 23 April 2013 and the flat was repossessed, the arrears were £2353.26 plus £485 court costs and the arrears under the suspended possession order were £1,898.62. LBS arranged for all AA's possessions, being the entire contents of the flat, to be removed on about 25 April 2013 and these were immediately taken to a refusal disposal facility and destroyed.
- AA now claims, in broad terms, that the issue and execution of the warrant, his eviction and the seizing and destruction of all of his possessions were both unlawful and an abuse of process as a result of a conspiracy by LBS which had been intended to cause him harm and to remove him and his possessions from the flat without due process of law.
- The parties are very far apart as to what AA's pleaded claims now cover, what causes of action they raise and what heads of loss and damages are claimed or recoverable or have already been admitted and established.
- AA contended that he was entitled to substantial damages for his unlawful eviction and for the unlawful destruction of all his possessions and that his claims were based on the torts of conspiracy, interference with goods, negligence and misfeasance in public office, on his rights that were protected under article 8 of the Human Rights Act 1997 ("HRA") and on breaches of his contractual entitlement to the quiet enjoyment of his tenancy arising from the tenancy agreement. He claimed at least £2.4m under various heads for the loss of the possessions of his flat and their total destruction.
- LBS admitted that it was responsible for the destruction of AA's possessions and contended that the only liability that it had for that destruction arose under the Torts (Interference with Goods) Act 1977 ("TIGA") and that that liability should be quantified by reference to the replacement value of such possessions as AA proved that he had lost. At an early stage, LBS admitted liability for the replacement value of the possessions it destroyed and has now paid AA an interim payment for that liability of £6,190.00 pursuant to an order made by Master Kay QC dated 18 July 2013. It contended that that sum was sufficient to discharge its liability to AA once AA's liability for his outstanding arrears of rent has been set off against its total liability since it admitted a total liability of £6,410 against which should be set off AA's outstanding liability for arrears of rent and court costs totalling £2,919.69.
- LBS contended that the trial had been confined by four successive case management orders dated 5 June and 2, 18 and 24 July 2013 to an assessment of the damages flowing from its interference with AA's possessions. This assessment should be carried out by reference to the replacement value of such of AA's possessions as LBS had destroyed. No other issue, claim, cause of action, head of damage, loss or damages were pleaded or, if pleaded, remained in issue at the trial. LBS particularly contended that its repossession of AA's flat had never been in issue in these proceedings and that, had it been, it was no longer in issue. Thus a continuing claim for re-entry or reinstatement of the tenancy or for damages for alleged unlawful repossession would be an abuse of process. Moreover, AA's eviction and LBS's consequent retaking of possession were lawful. For all these reasons, AA was not entitled to recover damages or any other remedy for that repossession.
Part 2 The proceedings
- There is a long and convoluted factual background to AA's claims, most of which LBS contended was irrelevant because AA's eviction had resulted from the lawful execution of a warrant for possession that had been lawfully obtained and that that lawfulness had subsequently been confirmed by the High Court and Lambeth County Court ("LCC") in five separate hearings. It followed that AA's contentions that LBS had obtained possession of the flat unlawfully were based on erroneous assertions of both fact and law which had been conclusively and finally dismissed by the courts. Moreover, the current claim, that had been issued after all five hearings, did not in terms extend to a claim for damages or other relief for unlawful possession and, insofar as it did, had been irrevocably reduced in scope by case management directions so as to exclude any such claim following four sets of case management directions.
- LBS also contended that it had prepared for a trial that was limited to an assessment of damages for its destruction of AA's possessions calculated by reference to the cost of their replacement. The only items that fell within the scope of this assessment exercise where those that AA had previously particularised in his pleadings. Furthermore, AA had not pleaded claims for, and the scope of the trial did not permit him to seek, general, aggravated or exemplary damages or special damages for the claimed items on any other than a loss-based replacement value basis and it was not open to him to claim on a restitutionary, equitable, contractual or compensatory basis. This suggested limitation of the scope of the trial was significant since AA was claiming that he had lost a huge quantity of material that had been saved on the hard drives of two of his computers and on many discs and memory sticks representing thousands of hours of work and a significant record of his personal and public life. This material therefore represented several years' work that had resulted in thousands of photographs and the work-product of much research and drafting by him all of which was lost when his computers, discs and memory sticks were destroyed with all his other possessions. It is clear that this stored material had little or no replacement value but it had for AA incalculable emotional and personal value and his work input had been enormous.
- If the agenda for the trial and the monetary value of the claims had been as LBS contended, it is surprising that the Master had not transferred the action to the county court to be heard in the fast track. However, he had instead set it down for a three-day trial in the High Court. In order to show that the trial agenda was not as contended for by LBS, AA placed considerable reliance on the factual background to his claims, his statement of case set out in the claim form, particulars of claim and further information, LBS's defence and disclosed materials and his various witness statements. He contended that, in the light of these materials, it was clear that he was seeking damages for a conspiracy that had resulted in his unlawful eviction and the unlawful loss, disposal and destruction of all his possessions and for LBS's subsequent cover up of its unlawful acts.
- In order to resolve these rival contentions, I must take account of evidence emanating from the LBS that appeared to show that a conspiracy by or the concerted unlawful actions of a number of its officers occurred before, during and in the immediate aftermath of AA's eviction from his flat on 23 April 2013 and the destruction of his possessions about two days later. It emerged in the days following those events that the eviction process had been highly irregular as a result of a series of failures by several officers to follow LBS's procedures for carrying out evictions for rent arrears and for dealing with possessions left in a flat at the end of a secure tenancy such that those unlawful actions and other irregularities had, at the very least, been a major contributory factor in both AA's eviction and the loss of his possessions. These irregularities arose as a result of what appeared to be the concerted actions of at least four of LBS's involved in the eviction.
- Following the discovery of these irregularities, LBS instructed Mr Kenneth Matthews, a manager in LBS's Environmental Enforcement Division of its Environment and Leisure Services Department, to undertake an internal investigation of the actions of those officials. Mr Matthews was a retired chief inspector of police with extensive experience in criminal and police complaints and investigations. Since his retirement from the police, he had been employed by LBS. His investigation report, dated 22 August 2013, concluded that management failings that were alleged against two income officers and one resident officer had amounted to gross misconduct and against a further income officer had amounted to misconduct and that there had been management failures by two managers in the Residential Team in failing rapidly to establish the gross misconduct of the three officers responsible for that gross misconduct.
- LBS had pleaded in its amended defence dated 21 July 2013 that:
"7. It is admitted that at some point after the warrant was executed but before the re-entry hearing on 1 May 2013 the defendant unlawfully disposed of the claimant's personal belongings. The precise circumstances of the disposal of the claimant's belongings are currently the subject of an internal investigation and further details will be given in evidence."
- When Mr Matthews' Report ("the Matthews report") was published to senior management on 22 August 2013, it would or should have been obvious to LBS's legal team that its contents and conclusions were highly material to AA's claims since he was alleging that his eviction and loss of possessions had resulted from a conspiracy by the LBS officers that had been investigated to harm him. Moreover, LBS had pleaded in its defence that AA's conspiracy allegations were strenuously denied, that there was no evidence of any malevolent intention on LBS's behalf, that the allegations were absurd and without factual foundation, that they failed to disclose any reasonable cause of action and that they should be struck out pursuant to CPR 3.4(2).
- It follows that the entire report should therefore have been disclosed to AA once it came into LBS's possession since the defence had asserted that full details of the report would be given in evidence once they had been published and its contents were highly material to support AA's case as well as his refutation of LBS's case. However, LBS failed to disclose the report until ordered to on the second day of the trial even though it had received it some four months prior to the trial.
- The evidence served by LBS included a lengthy witness statement by Mr Martin Hilder, the manager of the Central Operations Team that embraced all the income officers in LBS. This statement had made two months after the Matthews report had been provided to senior management. Mr Hilder made no reference to the Matthews report save to state at the end of his statement
"60. As a result of Officers' failure to comply with Council procedures, various disciplinary proceedings have been commenced and the Council has reviewed its procedures to ensure so far as possible that such failures do not occur again and has already issued and implemented guidance and new procedures."
- These few words in Mr Hilder's witness statement served for use at the trial showed that the Matthews report was relevant to the issues at the trial. They showed that various officers had failed to comply with LBS's procedures relating to the eviction of secure tenants, that those failings had led to disciplinary proceedings being started against the officers involved and that LBS had reviewed its procedures so as to ensure that failings by officers carrying out the eviction of tenants would not in the future lead to the loss and destruction of the possessions of such tenants.
- Given the potential significance of this report to AA's claims, I directed LBS on Day 2 of the trial to disclose an unredacted copy of the Matthews report to AA. Following its disclosure, LBS opted not to seek to adduce further evidence from any of the officers involved in AA's eviction but did opt to adduce a witness statement from Mr Matthews who attended the trial and was questioned by me and cross-examined by AA as to the contents and conclusions of his report. Mr Matthews' overall conclusion was that there had been a series of negligent and grossly negligent acts by three of the four officers involved in the carrying out of AA's eviction and grossly negligent conduct in a fourth officer's response to, and cover up of, that negligent conduct. Mr Matthew stated in his oral evidence that had these officers not acted in that way, the realistic consequences would have been that AA's possessions would not have been destroyed and, instead, he could have collected them from the flat after he had been evicted or that LBS would have taken them into storage and he could have collected them from there. Mr Matthews did not consider that any of the officers that he had investigated had been malicious or that there had been a criminal conspiracy. However, that finding was not conclusive since he did not investigate, and indeed was not asked to investigate, the eviction process albeit that it was the same process as he had investigated in relation to the destruction of AA's possessions. Furthermore, he was not asked to and in consequence did not consider whether there was evidence of a tortious conspiracy such as to give rise to an entitlement to damages. At the very least, the contents of the report and of Mr Matthews' oral evidence were both relevant and admissible as evidence in relation to AA's claims relating to the destruction of his possessions. Not surprisingly, both sources of evidence were heavily relied on by AA in his closing submissions in support of all his claims.
- There is a further reason why the dispute as to the agenda for the trial is wrapped up in the detailed factual background of AA's claims. If LBS fails in its argument that AA has not pleaded, or may not proceed with, claims based upon his unlawful eviction from the flat, it contends that it would be an abuse of process for AA to pursue them given that five successive court hearings have conclusively concluded that they have no substance.
- For these reasons, I will first examine the evidence adduced at the trial and make findings as to why AA was evicted and lost all his possessions, what possessions he has lost, why he failed to recover his tenancy and possessions and what was determined in the various relevant hearings that he has been involved in. In the light of those findings, I will then determine what issues have been set down for trial and then resolve those issues that can now be resolved and give directions as to how the remaining issues are to be determined in Stage 2 of the trial.
(2) The trial
- AA represented himself throughout the earlier proceedings and at the trial of these claims. In all, he adduced the contents of 6 witness statements at the trial. These were:
(1) A witness statement dated 10 May 2013 which was originally adduced in evidence at the hearing of AA's application on 14 May 2013 in LCC under section 85(2) of the HA to set aside the possession order and suspend execution of the warrant. The application was referred to inaccurately in the order dismissing it as a "re-entry application". AA subsequently lodged this statement with the Court of Appeal on 6 June 2013 with his notice of appeal and application for permission to appeal.
(2) A statement dated 8 July 2013 which was originally served in support of AA's application for summary judgment and an assessment of damages and in compliance with the Master's order that AA should file and serve any evidence upon which he intended to rely in support of that application.
(3) A statement dated 12 August 2013 originally served in support of AA's application to join Yagoub Abdullah as a second claimant in relation to two particular items of claim.
(4) A statement dated 28 September 2013 originally served in compliance with Master Kaye QC's order to file and exchange the witness statements that he intended to rely on at the trial.
(5) Further submissions dated 20 November 2013.
(6) A statement dated 25 November 2013.
AA also served a 2-page summary of his case accompanied by a list of authorities he proposed to rely on for use in conjunction with his opening statement at the trial. This summary contained both evidence and an outline of AA's case. At the trial, AA was cross-examined at length about those parts of his statements concerned with the possessions that he had lost.
- LBS served 6 witness statements from 5 witnesses:
(1) 2 statements from Mr Martin Hilder dated 11 July 2013. The first was a short formal statement that introduced 15 documents and the second was a lengthy statement dated 14 October 2013.
(2) From Ms Cheryl Russell, Manager of the South Area Resident Services Team, dated 14 October 2013.
(3) From Mr Henry Marrinan, Voids Disrepair Surveyor dated 9 October 2013.
(4) From Mr Jon Mahoney, Voids Supervisor dated 9 October 2013.
(5) From Mr Kenneth Matthews dated 25 November 2013.
- Ms Russell was not cross-examined since she had no personal knowledge of what was done to bring about and enforce AA's eviction and the destruction of his possessions. Her non-contentious evidence did no more than summarise other evidence that had been adduced by Mr Hilder and outlined procedures relating that a resident officer should follow when involved in the clearance and removal of a tenant's possessions from a property from which he has been evicted. The other witnesses were cross-examined briefly and their evidence was not contentious. It described what those two did when they visited the flat on the day after the eviction in order to determine what work needed to be done before the flat was re-let.
- None of the witnesses who were named in the Matthews report as having been negligent or grossly negligent in relation to the unlawful destruction of AA's possessions and who were alleged to have acted in concert to obtain or to cause his unlawful eviction gave evidence or were tendered for cross-examination. LBS appeared to have taken a deliberate decision not to adduce their evidence or to tender them for cross-examination since its counsel Mr Kevin Rutledge QC stated that LBS did not wish to call any further witnesses when asked by me after Mr Matthews had given evidence whether he wished to do so.
- Mr Matthews Report and the accompanying notes of the interviews he conducted of relevant LBS officials during his inquiry were admitted as evidence and I have considered that evidence carefully and have evaluated it in the knowledge that the individuals concerned did not attend to explain any part of that evidence. I concluded that I should only accept any particular piece of evidence or draw adverse inferences from it if I was satisfied on a balance of probabilities that that evidence was to be accepted and any appropriate inferences could be drawn from it.
(3) The parties
- AA. AA is a single man and a British citizen of Sudanese British origin who is now in his late 40s or early 50s. He who was born and raised in the Sudan and came to England in 1985 as a refugee from the civil war in that country. He was granted asylum and has lived in England ever since. Before becoming a tenant of LBS, he lived with a Sudanese family and then in a number of youth hostels. He has been emotionally and professionally involved in the on-going conflict in the Sudan whilst living in England. This has largely been as a charity organiser and fund-raiser and as a provider of assistance to children and orphans caught up in the decades-long civil strife there. He has also undertaken a considerable amount of private work as a researcher and writer on political matters generally and on the politics and the political situation in the Sudan in particular. In addition to these various activities, he has also been an intermittent student of various subjects in a variety of courses at different levels that have included those concerned with the English language, business studies, politics and law.
- AA set up a charity in 1990, the African Children Society ("ACS") which was concerned with providing assistance and support for Sudanese refugees, particularly children, who were displaced by or caught up in the never-ending conflict in the Sudan region. In 1994, he was charged with assaulting two female traffic wardens in Whitechapel and was convicted and sentenced to six months' imprisonment. He had applied for an adjournment due to his absence abroad on a fund raising trip to Namibia and South Africa which was refused so that his trial and sentence took place in his absence. On his return, he was arrested and served his sentence in 1995.
- In October 1994, the ACS entered into a credit sale agreement for a car which AA subsequently unsuccessfully argued was a contract that ACS had entered into on his behalf. This action was the starting point for two separate but long-running disputes that occupied much of his time, emotional energy and ability to complete his education until well into the 2000s.
- After his release from prison from his six-month sentence, he became embroiled in disputes arising out of the repossession of the car that had taken place in November 1995. Evidently, the car was crammed full of ACS documentation and files and was parked outside AA's flat in the street. During the night, he was awakened by the sound of the police breaking into the car in order to confiscate it. The car was taken to Peckham Police Station and he went there in search of it. When he arrived there, he was asked to wait whilst his immigration status was checked by the police who suspected him of being an illegal immigrant. Once the police were satisfied about his immigration status, an altercation broke out about whether his car had been unlawfully impounded and about AA's perception that the police had failed to hand back to him the ACF documentation that was in still in the car. He was arrested and charged with assaulting two police officers and was then taken to court, found guilty and sentenced to three months imprisonment which he served between February and March 1996.
- AA appealed both of these convictions and sentences to the Crown Court and, later in 1996, both convictions were quashed. AA contended subsequently that the basis of both of those quashings was that, in both cases, he had been wrongfully arrested and his convictions had been wrongfully obtained.
- AA never recovered either the car or the documents it contained. The loss of the ACS documents prevented it from continuing as an active charity and its fund-raising ability was significantly jeopardised. This led to the Charity Commissioners removing ACS from the Register of Charities and this in turn led to AA and ACS unsuccessfully bringing proceedings in the Chancery Division and the Court of Appeal against the Charity Commissioners.
- AA also started a civil action against the police in 1996 for false imprisonment, wrongful arrest and damages. The monetary claim was brought in AA's name and also in the name of ACS and £6m was claimed, largely representing the alleged loss suffered by ACS as a result of the loss of all of its documents. It was pleaded on behalf of AA that the consequence of the loss of its documents meant that its funding dried up and it was removed from the Register of Charities. The claim was dismissed in the Central London County Court after a lengthy trial following which there were a number of applications and hearings in connection with AA's unsuccessful attempts to appeal this dismissal of his claim. These further hearings were only finally brought to an end in June 2006.
- At some stage in the late 1990s, AA considered that he had been defamed by an internal circular sent to all Job Centres which he contended had led to his being banned from entry into any Job Centre in the United Kingdom. AA unsuccessfully sued the Secretary of State for Work and Pensions and four named individuals for defamation in the High Court. These claims were dismissed in 2001.
- AA also brought further unrelated cases against the Master of the Rolls in 2001 in relation to his unsuccessful attempts to obtain a Certificate of Academic Standing from the Law Society to enable him to study for the Law Society Examinations and against the OCR Examinations Board, also in 2001, in relation to perceived unfairness in the marking of his OCR "A" level papers in examinations that he had sat at that time.
- AA acted in person throughout all these cases which have only limited relevance to these current proceedings save for two matters. Firstly, as a result of AA's involvement in this mass of litigation, he did little else whilst it was on-going and his income was largely derived from Housing Benefit and Jobseekers Allowance. From the outset of his new tenancy in February 2001, AA built up arrears of rent shortfall starting with an initial deficit of £131.74 on 9 March 2001. The shortfall arrears fluctuated in the succeeding years and in LBS's arrears schedule held on its Housing database, his total arrears stood at almost the highest that they had ever been in the sum of £2353.26 plus £485 court costs following the repossession of his flat on 23 April 2013. On AA's case, sum for arrears should have been about £1,400 since, according to him, the database had persistently failed to take full account of direct payments made to LBS Housing Department out of Jobseekers' Allowance payments made on his behalf and of some of his own direct payments and some of the arrears had been deferred by the condition attached to the suspended orders for possession requiring him to pay off the current rent and the arrears in weekly instalments of about £3.00 per week.
- LBS. LBS stated on its website that it was the largest local authority social landlord in London and that it was committed to making Southwark a great place for all of its tenants and homeowners to live. At the time of the trial, LBS had 40,000 properties it was letting out. Most of these were subject to secure tenancies but it also let out some of its properties to introductory and flexible tenants. The North Peckham Estate, where AA had resided for over 22 years, was created during the extensive redevelopment of the area in the1960s. It consisted mainly of high-rise flats although AA's flat was in a low-rise block. The North Peckham Estate was popular when originally completed since it offered its tenants a high quality and modern standing of living. However, high unemployment and a lack of economic opportunities rapidly led to urban decay and a period of decline in the late 1970s and by the time of the trial, the Estate was considered to be one of the most deprived residential areas in Western Europe.
- Not surprisingly, LBS had an extensive Directorate, the Housing & Community Services Directorate, which administered, serviced, arranged and maintained its extensive social housing stock. This Directorate was split into a number of Divisions, the one relevant to this case being the Operations Division. This Division in turn was split into a number of Teams of which two were relevant to this case.
- The first of these Teams was the Central Operations Team whose Manager was Mr Martin Hilder. This Team was concerned with the letting and maintenance of LBS's secure housing stock. It was split into five Teams of which two were relevant to this case, the Debt Management and Voids and Lettings Teams. The Debt Management Team was further divided into the Income Early Intervention Team and the Complex Cases Team. The Income Early Intervention Team was yet further sub-divided into sub-teams who were allocated particular properties. Each sub-team comprised a number of income officers and each officer was allocated particular tenancies.
- An income officer's function was to superintend the payment, reduction and elimination of rent and rent arrears in liaison with the tenant concerned and to take all necessary steps to initiate and carry forward appropriate court action. The income officers transferred more difficult cases to the Complex Cases Team to be carried through to a successful resolution or enforcement but in simpler cases the income officer initiated any necessary action and took it through to a court hearing or eviction where necessary. Court action undertaken by an income officer was known as DIY action. Overall, there were 66 income officers working under 9 team leaders who reported directly to Mr Hilder.
- In the case of AA's tenancy, the income officer was Ms Christiana Okwara who had been an income officer for ten years by the time she became his income officer in succession to a long line of previous income officers in June 2012. Ms Okwara's team leader was Mr Brian Davis who had been a team leader for about a year at the time of the eviction. However, he had worked for some time before that for LBS as a senior debt collector.
- The second relevant Team within the Central Operations Team was the South Area Residential Team whose Manager was Ms Cheryl Russell. This Team was divided into Residential Management District Teams and each Team was sub-divided into residential sub-teams to which resident officers, who were sometimes also called housing managers, were assigned. Each resident officer was allocated a portfolio of tenancies and was responsible for arranging re-lettings when properties fell empty and for providing liaison between the tenants and their social landlord on matters other than rent arrears and enforcement. In the case of AA's tenancy, his resident officer was Ms Johanna Ashley albeit that he had very little contact with her during his 14 years in his second social tenancy. She had been a resident officer for 22 years at the time of AA's eviction. Ms Ashley's line manager was Mr Ola Akinsola during the critical period prior to AA's eviction.
- The Debt Management and Residential Teams worked separately from each other but both Teams were based on different floors of LBS's offices in Tooley Street, SE1. However, the individual teams were mobile and carried out most of their work in local offices around the Borough and would see tenants when necessary in one of these offices or in one of LBS's Tenant's One Stop Shops where residents had to go to in order to make personal contact with LBS. The nearest local office to AA's flat was the one at Harris Street, SE5 and the nearest One Stop Shop was in Peckham Library located on Peckham Hill Street, SE15.
- It would appear from the evidence given to Mr Matthews during his inquiry that the income and resident officers worked together but there was no structure or clear pattern of working with tenants such as AA who had persistent rent arrears which were significant but which not did not call for immediate attention. From 2001, the Debt Management Team stored its tenants' files on a computerised programme called iWorld on which all relevant data including meetings and correspondence with the tenant, inter-Department emails and other relevant documents were placed by the income officer receiving or sending the document or email concerned. All income officers and resident officers had access to these files. The Residential Team had access to iWorld but information to be stored by resident officers was saved on EDMS, a different programme which income officers did not have access to. AA's iWorld entries from June 2001 until October 2013 were disclosed and copies were adduced in evidence but his EDMS entries were not disclosed. Thus, any entry on EDMS about AA and his tenancy which was not duplicated on iWorld was not adduced in evidence. All rent payments and rent arrears were to be found on LBS's database so that it was always possible to ascertain whether the tenant was in arrears, what the size of his arrears was and whether the tenant was currently able to meet his current rent and other rental payments.
Part 4 The relevant law and practice
(1) Secure tenancies
- A landlord cannot bring proceedings for the possession of a secure tenancy without first serving a notice that complies with the provisions of section 83 of the HA. The notice must state the amount that the tenant is in arrears and the date after which proceedings for possession will be commenced. The purpose of the notice is to give the tenant formal notice of the ground upon which termination will be sought so as to warn him that he is at risk of possession proceedings being taken and to give him an opportunity of rectifying the complaint so as to avoid those proceedings.
- A landlord may only bring a secure tenancy to an end for non-payment of rent by obtaining an order for possession under section 82(1) of the Housing Act 1985 ("HA") and then, if the tenant fails to leave the tenanted property voluntarily, applying for the issue administratively of a warrant of execution by the court which a court bailiff must then execute. Following the issue and service of possession proceedings, a contested hearing will take place. The judge will initially consider whether to adjourn the claim for possession for such period or periods as he thinks fit. If the judge decides not to adjourn the hearing, he must then consider whether the grounds for possession have been made out and whether it is reasonable to make an order for possession. If he decides that it is reasonable, he will then make an order for possession.
- On making an order for possession, the judge must also consider whether to exercise his powers under section 85(2) of the HA. This section permits the judge, on making an order for possession or at any time thereafter but before the execution of the order, to stay or suspend the execution of the order or postpone the date for possession indefinitely or for such period as he thinks fit. An indefinite postponement is achieved by granting an order for possession that contains no date for possession so that it can only be executed if a judge has subsequently fixed a date for possession which has then passed.
- If the judge grants an adjournment of the hearing or a stay, suspension or postponement of the date for possession, the judge is required to impose conditions with respect to the payment by the tenant of any arrears of rent unless he considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable. The judge may also impose such other conditions as he thinks fit. If and when the conditions that have been imposed are complied with, the judge may discharge or rescind the order for possession.
- An order for possession cannot be executed whilst it is stayed, suspended or postponed or the date set for possession has not passed and it cannot be executed without a warrant for possession having been issued by the court. The warrant is issued by the court administratively without an order. To obtain the issue of the warrant, the landlord merely applies to the court office to issue it administratively by certifying in the application that the date for possession has passed or that the conditions of any current stay, suspension or postponement have not been complied with. The landlord may not however apply for a warrant to be issued administratively unless a judge has previously granted an order for possession which provides for a date for possession which has passed or, where the order for possession did not contain one, the landlord has since obtained from a judge a date for possession which has then passed. The landlord may also apply for a warrant to be issued administratively if a previously imposed condition for payment has not been satisfied.
- A further limitation on the issue of a warrant administratively is that it may not be applied for and issued without the landlord first obtaining the leave of a judge for it to be issued where "six years or more have elapsed since the date of the judgment or order" (CCR 26r5(1)(a)). In other words, if six years or more have passed since the original possession order was made, the landlord must first obtain from a judge an order that directs that a warrant may be issued before applying for the administrative issue of that warrant.
- Once the warrant has been issued administratively, it may then be subjected to the same powers that relate to an order for possession, that is to say a judge may stay, suspend or postpone the execution of that warrant. The warrant must, however, be executed by a bailiff within twelve months from it being issued administratively and, if not, it will lapse and a fresh warrant must be applied for. The warrant is executed by a bailiff who is a court official who must first notify the tenant by the service of the warrant on the premises in question of the date and time that it will be executed.
(3) Adjournment, stay, suspension or postponement of the claim, possession order or execution of the warrant
- The court has a very wide discretion to adjourn the hearing of the claim for possession, to stay, suspend or postpone the order for possession once granted or to stay, suspend or postpone the execution of the warrant once issued. The decision whether or not to adjourn the hearing of the claim is one that must be taken on ordinary case management grounds. Thus, the adjournment can reasonably be considered to be an option if procedural or other unfairness would result from the hearing going ahead without an adjournment. At the hearing, the judge must decide whether, taking all the circumstances into account, it is reasonable to make an order for possession. The past circumstances will feature prominently in such a consideration, including for example any laxity or acquiescence by the landlord's agents in allowing the tenant's rent arrears to build up.
- Once the order has been made, the judge must consider any application to stay, suspend or postpone the order for possession. This second stage of the hearing looks to the future as much if not more so than to the past. The court must again weigh up all relevant factors including the reasonableness of ordering a tenant to leave his home, the likelihood that the arrears will be paid off or reduce in size if the tenant remains and the reasons why previous orders have not been complied with. The tenant needs to provide cogent evidence of his ability to meet an instalment order or future periodic payments of rent since, without it, the court will be in some difficulty in deciding what the prospects are of rent arrears being discharged. The court is required to consider whether and if so what conditions should imposed as part of the section 85 order. These will invariably include terms requiring payment of current rent and something off the arrears. The terms should be readily understandable since they may often be enforced in the event of non-compliance without the need to return to court.
- Once the a warrant for possession has been applied for, the tenant may seek to use similar powers as those available to suspend the order in the first place this time in the context of a claim for rent where the warrant has been issued and may be about to be enforced. The court should bear in mind that article 8 of the HRA requires consideration of whether the tenant has committed a sufficiently serious breach of the terms of his tenancy and of any court order to make it reasonable to evict the tenant from his home. A particular consideration is whether his non-compliance with the conditions of any suspension shows that the eviction of the tenant from his home is an unduly severe step to take.
(4) Enforcement of possession by warrant
- The requirement for the permission of the court to apply for a warrant. In this case, LBS applied for the administrative issue of a warrant on 22 February 2013 and this was issued by LCC on 26 February 2013 for execution on 23 April 2013. AA contended that since the order for possession had been originally granted on 13 November 2006, LBS should have first obtained an order from a judge authorising the issue of the warrant since more than 6 years had passed since the grant of the order for possession authorising its issue. LBS contended that the warrant in this case could be applied for administratively by lodging an application with the court office and the court office then issuing and executing it without LBS first obtaining the permission of a judge for it to be issued. This submission was made notwithstanding the provisions of CCR 26r5(1)(a) that provided that a warrant of execution should not be issued without the applicant for the warrant first obtaining the permission of the court where six years or more had elapsed since the date of the judgment or order to be enforced. It would appear, therefore, that LBS should first have obtained the permission of the court but failed to do so.
- The authorities show that it is only in exceptional cases that the court should exercise its discretion to permit a warrant to be issued outside the six-year period. It is worth noting that CCR 26r5(2) 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. The application may be made, in the first instance, without notice and without being served on the defendant but the judge dealing with the application may direct that the application notice should be served on such persons as the judge thinks fit. Unless the witness statement disclosed no possible basis for refusing the application, the judge would inevitably order that the defendant should be served with the application and supporting evidence and that the application should be heard at an oral contested hearing.
- The 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 should be granted. Thus, in Patel v Singh, the following passage sets out the approach that a court should adopt in considering an application for permission to apply for a warrant six years or more after the relevant order of the court:
"The policy of the rule seems to me to be that ordinarily after six years permission will not be given and that is underlined by the provisions of Order 46 rule 4(2), requiring the judgment creditor to explain his delay. In contrast there is no rule that the judgment debtor is to file evidence to state what prejudice, if any, he has suffered by the delay. In my judgment, therefore, consistently with what this court said in Powney, the court must start from the position that the lapse of six years may, and will ordinarily, in itself justify refusing the judgment creditor permission to issue the writ of execution, unless the judgment creditor can justify the granting of permission by showing that the circumstances of his or her case takes it out of the ordinary. That may be done by showing the presence of something in relation to the judgment creditor's own position, or, as Sir Anthony Evans suggested in the course of the argument, in relation to the judgment debtor's position. Thus the judgment creditor might be able to point, for example, to the fact that for many years the judgment debtor was thought to have no money and so was not worth powder and shot but that, on the judgment creditor winning the lottery or having some other change of financial fortune, it has become worthwhile for the judgment creditor to seek to pursue the judgment debtor."
- It follows that it is a very serious matter to deprive a defendant, whether to a possession claim or to any other claim, of an 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.
- LBS's submissions. Mr Rutledge QC submitted that the six-year period provided for in CCR 26r5(1)(a) would have applied and the permission of a judge would have been required for the warrant to be issued but for the provisions of CCR 26r5(4). This rule applied as a result of the order that removed the date for possession inserted into the order for possession and the subsequent order that re-imposed one. In the light of CCR 26r5(4), he contended that the starting date for the six-year period was 1 July 2008 when an order was made fixing the date for possession. CCR 26r5(4) provided that:
"Paragraph 1 [i.e. CCR 26r5(1)(a)] is without prejudice to any enactment, rule or direction by virtue of which a person is required to obtain the permission of the court for the issue of a warrant or to proceed to execution or otherwise to the enforcement of a judgment or order."
- This submission was based on two related decisions concerned with secure tenants who had been made the subject of a postponed possession order. These tenants were, between 1989 and 2007 members of a class of previously secure tenants that were colloquially known as tolerated trespassers. Strictly speaking, these were people who had been tenants under a secure tenancy who had had an order for possession made against them that had been suspended or postponed and who were, in consequence, still occupying the premises that had been the subject of their previous tenancy.
- It was decided by the Court of Appeal in Thompson v Elmbridge BC in 1989 that the order for possession, even though it was suspended, brought the tenancy to an end. The order therefore did not enable the landlord to obtain vacant possession of the premises since the tenant was permitted by the terms of the suspended order imposed pursuant to section 85(2) of the HA to continue to reside in the premises so long as the conditions of the suspension were complied with. Such former tenants were held to have a twilight status which was neither that of a tenant, since the tenancy had been brought to an end, nor that of trespassers in the conventional sense since they could not be evicted whilst the possession order remained suspended. They were, therefore, regarded as being "tolerated trespassers" whose rights and status were anomalous since they were able to remain in occupation but had been stripped of almost all of the other rights and protections that they had enjoyed as secure tenants. Tolerated trespassers existed until their status was removed by statute and this status would in any case have been abolished by the overruling of Thompson v Elmbridge BC by the House of Lords in Austin v Southwark LBC which was decided soon after the statutory amendments to section 82 repealing the decision in Thompson had been promulgated.
- The decision in Thompson came about because the Court of Appeal construed the words in section 82(2) of the HA:
"Where the landlord obtains an order for the possession of the dwelling-house, the tenancy ends on the date on which the tenant is to give up possession in pursuance of the order."
As meaning that the tenancy came to an end on the date that the possession order was made. However, in Austin, Baroness Hale concluded:
does not say, as it could have done, that the date specified in the order is to be the date when the tenancy terminates. It refers instead to the date when the tenant "is to give up possession in pursuance of the order". That phrase can, I think, be read as indicating that the date when the tenancy is to terminate is to be found in the possession order itself. That is how Russell LJ read it in Thompson. But the words "is to give up possession" can also be read, as Lord Neuberger said in Knowsley, as contemplating the date when possession will actually be given up under a warrant for possession which is duly executed or acted upon."
- To this must be added the decision of the Court of Appeal in Bristol City v Hassan. The court there held that it was permissible, although contrary to the practice of many district judges, for a court to fix a date for possession on the face of the order for possession. Such an order had the effect that the tenant became a tolerated trespasser even though the order was suspended. However, to avoid that result, the Court of Appeal held that the court could decide not to give a defined date for possession in the order for possession and could instead make an order setting a date for possession but postponing it and providing that the tenancy would continue so long as the conditions set out in the order were satisfied. This form of order avoided the tenant becoming a tolerated trespasser when the order for possession was made and then postponed. However, the tenant would automatically become a tolerated trespasser if he committed any breach of the conditions including a technical breach.
- To avoid that result, the court also sanctioned a different form of order for use when a possession order was made. Such an order was to the effect that the tenant was to give up possession of the premises on a date postponed to a date to be fixed on application to a judge by the landlord and that the landlord was not entitled to make an application for a date to be fixed so long as the tenant paid the current rent and defined instalments towards the arrears. In such circumstances, the tenant would not become a tolerated trespasser unless and until a date for possession was fixed and such would not be fixed without there first being an application to a judge to fix it.
- Mr Rutledge submitted that the effect of these complex provisions was that:
(1) Despite the decision in Thompson, the effect of an order in Hassan form (i.e. in the form summarised in paragraph 63 above) was that a tenant did not become a tolerated trespasser until the landlord successfully applied for a fixed date for possession following a breach or breaches of the postponement conditions.
(2) The result was that in cases where orders had been made in Hassan form, an application had to be made to a judge to obtain a date for possession.
(3) This application, if granted, would lead to the termination of the tenancy, the tenant becoming a tolerated trespasser and the landlord being entitled to apply for the administrative issuing of a warrant of execution.
(4) Thus, where an order was made in Hassan form, the order referred to in CCR 26r5(1)(a) as the date from which the six-year period started to run was the date of the Hassan order fixing the date for possession since this was, in effect, the date of the order for possession.
(5) This consequence was the effect of CCR 26r5(4) that stated that CCR 26r5((1)(a) was without prejudice to any enactment, rule or direction by virtue of which a person was required to obtain the permission of the court for the issue of a warrant or to proceed to execution of a judgment or order. If the six-year period ran from the date of the original order, that would prejudice a Hassan order since possession could not have been obtained and a warrant could not have been issued notwithstanding the existence of the possession order.
(6) Thus, since a warrant may only be issued and executed once a landlord is entitled to execute an order for possession, the six-year period must logically only start to run from the date arising from the Hassan form or order and any alteration of that starting point for the purpose of calculating the six-year period by CCR 26r5(1)(a) would "prejudice the direction by virtue of which a person is required to obtain the permission of the court for the issue of a warrant" that is would prejudice the effect of the order in Hassan form.
- Relevant orders made during the duration of AA's tenancy. It is first necessary to consider the precise wording of the operative parts of the relevant orders in this case:
(1) On 2 June 2006, LBS served a notice under section 83 of the HA based on arrears of rent of £1,271.54 and stated that proceedings would not be begun until after 3 July 2006.
(2) On 13 November 2006, District Judge Zimmels ordered that LBS was to be given possession of AA's premises on or before 27 November 2006 and he gave a monetary judgment for £1,551.86 plus costs of £150.00. AA was not present or represented at the hearing.
(3) On 20 February 2007, District Judge Zimmels, on AA's application, ordered that possession would be postponed and that LBS was not entitled to make an application for the date for giving up possession and the termination of the tenancy so long as AA paid the current rent and £2.90 per week towards the judgment debt.
(4) On about 1 June 2007, LBS applied for and obtained a date for possession on account of non-compliance with the order dated 20 February 2007. LBS then applied for a warrant which was issued with a return date in August 2007. AA then applied for a stay of eviction and on 12 September 2007, the court ordered that the warrant should be struck out and that, in Hassan form, possession should be postponed with no new date for possession inserted. The Housing File did not contain copies of the court orders relating to this unsuccessful attempt to obtain possession.
(5) On 1 July 2008, on LBS's application to fix a date for possession based on AA having made only one payment following the postponed possession order, District Judge Zimmels ordered that LBS be given possession on 8 July 2008.
(6) On 9 July 2008, LBS applied for the administrative issue of a warrant which LCC issued with a date for execution on 13 September 2007. On 1 September 2008, LCC stayed the warrant pending the hearing of AA's application to stay execution of the warrant. On 4 September 2008, District Judge Jacey suspended the warrant on terms that AA paid the current rent and £3.05 per week and a further £1,000 on or before 18 September 2008 on account of the arrears of £3,201.87. It was ordered that all future stay applications should be heard by a circuit judge.
(7) On 4 November 2008, Judge Welchman ordered that the warrant should be suspended so long as AA paid the current rent and £6.10 fortnightly on account of the arrears.
(8) On 5 February 2010, LBS applied for a warrant to be issued based on the non-payment of instalments. The LCC issued the warrant with a date for its execution of 27 April 2010. On 23 April 2010, AA applied for a stay of execution and District Judge Wakem ordered that the warrant be stayed pending an oral hearing of the application and on 6 May 2010, District Judge Zimmels dismissed AA's application save that the warrant was to remain suspended so long as AA paid the current rent plus £3.30 off the arrears of £1,152.31.
(9) On 3 August 2010, LBS applied to reissue the warrant for possession on the grounds of non-payment of instalments due under the order for possession. The warrant was re-issued on 10 September 2010 for execution on 13 September 2010 and on 10 September 2010, District Judge Pearce ordered that, by consent, the warrant was suspended on terms that AA paid the current rent plus £3.30 towards the arrears.
- It can be seen that AA was ordered to give possession by 27 November 2006. This order therefore set the date from which the six-year period under CCR 26r5(1)(a) started to run. The judge on 20 February 2007 ordered that that order should be postponed on terms as to payment. This was an order made pursuant to section 85(2) of the HA which provides for the stay or suspension of the execution of an order for possession or the postponement of the date for possession "at any time before the execution of the order". Thus, the original order made on 27 November 2006 remained in place but the date on which it could be executed was postponed. The period of postponement was an indefinite period since LBS was not entitled to make an application for the date for giving up possession and the termination of the tenancy so long as AA paid the current rent and £2.90 per week towards the arrears. On 1 July 2008, AA was ordered to give up possession on 8 July 2008 and thereafter, there were six successive orders suspending the execution of the warrant, the last being made on 10 September 2010.
- Mr Rutledge's contentions. The gist of Mr Rutledge's contentions was set out in this sentence from his closing submissions:
"However, on 20th February 2007, when the matter came back before the court, DJ Zimmels varied the order to one which complied with Hassan. Thus, from that point onwards, LBS could not issue a warrant without returning to the court with a request to fix a date for possession".
Thus, the six-year period would, on the basis of this contention, only have started to run in this case on 1 July 2008 when the date for possession was fixed. Strictly speaking, this was the second time that this period would have started to run since it had originally started to run on 13 November 2006 when a date for possession had originally been ordered only to stop running on 20 February 2007 when that order was varied and an order in Hassan form was made
- Discussion. However, it has to be remembered that in AA's case, there are two quite separate applications that have to be considered when possession and enforcement are in issue. The first is an application for permission to apply for a warrant when more than six years have elapsed from the date of the original order for possession and the second is an application to fix a date for possession because the judge hearing an application to vary the date for possession originally ordered varied that order by postponing possession to a date to be fixed on a subsequent application. In AA's case, there had been an application to fix the date for possession which was issued on 1 July 2008. However, there was also the need for a completely different type of application to be made seeking permission to apply for a warrant after more than six years had elapsed from the date of the postponed order for possession. CCR 26r5(4) makes it clear that the requirement to make an application to a judge for permission to apply for a warrant when more than six years have elapsed was without prejudice to, or did not alter or affect, the different requirement for the need to make an application to the court to fix a date for possession.
- In summary, therefore, the answer to Mr Rutledge's contentions is as follows:
(1) The requirement that a six-year application had to be made arose when a date for permission was provided in the possession order and the tenancy terminated (in the tolerated trespasser era) or when the warrant was executed (in the post-tolerated trespasser era). In both cases, the relevant six-year period started to run from the date of the order for possession, whether or not it was stayed, suspended or postponed with no date for possession inserted into the order.
(2) The Hassan order affected the date for possession and not the execution of the order for possession. No warrant can ever be applied for whilst an order for possession is suspended, stayed or postponed or when there is no date for possession at all. The order for possession is dealt with under section 82 of the HA whereas all orders concerned with the suspension, stay or postponement of the order for possession once made are dealt with under section 85 of the HA. The six-year provision is concerned with orders for possession made under section 82 and it is not concerned with any of the wide variety of orders which put off the execution of the order for possession that are all made under section 85.
(3) Thus, an order whose effect is to postpone possession, possibly indefinitely, is not prejudiced by a rule requiring a judge-made order authorising the issue of a warrant if six years or more have elapsed since the date of the order for possession. All that has occurred is that two applications may be needed when the attempts to evict a tenant become protracted and difficult so that these are drawn out over a period of more than six years. In such cases, both a date for possession and the issue of a warrant must be applied for and these are separate applications which are invariably made at different times although there would be nothing to stop both being made together in an appropriate case.
(4) If LBS's submissions are correct, AA would be unable to obtain a judicial scrutiny of an application for a warrant issued more than 6 years after the order for possession had been made even though it is clear that the rule requiring judicial scrutiny in such aged cases was intended to provide judicial control on the use to be made of such orders. That scrutiny is an onerous one since the authorities show that a judge should only authorise a warrant to be issued to enforce an order for possession issued more than six years previously in exceptional circumstances.
(5) AA is entitled, unless this case is exceptional, to have the current claim terminated and a fresh claim started. Thus, AA is entitled, unless his case is exceptional to the benefit of all the safeguards associated with a fresh possession claim that are not available to him under the original claim where possession had been ordered but then stayed, suspended or postponed. These safeguards include the statutory requirement that a pre-action warning letter must first be served on the tenant and the need for the court to consider afresh whether a it is reasonable to make a possession order at all.
(6) Mr Rutledge QC did not identify what prejudice would have arisen in AA's case if the requirements of CCR 26r5(1) were applicable and LBS had to apply to a judge for permission to apply for the warrant.
(7) LBS's contentions make no sense since they have the consequence that the six-year period starts to run from the date of an order for possession which is stayed or suspended but from the date fixed for possession if the order for possession is postponed.
(8) LBS's submission requires the reference to "order" in CCR26r5(1)(a) in this case initially to have been a reference to the order made on 13 November 2006 but, subsequently, to have been an altered reference so as to have become a reference to the order of 1 June 2007 and subsequently to have been varied again to become a reference to the order of 1 July 2008. This is a very strained and impractical interpretation of CCR 26r5(1)(a).
(9) There is nothing prejudicial in having required LBS to make an application to a judge in June 2008 to fix a date for possession and then require it to make a second application to a judge for permission to issue the warrant to execute that date in April 2013.
(10) It would appear that LBS in fact adopted the practice of treating the date of the original possession order as being the operative date for the start of the six-year period. By way of example, on the Housing File, there is a copy of a Request for Warrant of Possession submitted by LBS to LCC on 9 August 2007. This was a standard form and one of the boxes was entitled "Property details Date of judgment/order" and on this Request, the income officer undertaking the DIY claim had filled in, correctly, "13/11/06" which was the date of the original possession order.
- Conclusion. On analysis, therefore, CCR 26r5(1)(a) did not alter the requirement that LBS had to obtain the permission of the court before applying for the issue of a warrant in February 2013. What rule 5(4) did was to make it clear that the requirement that the permission of the court was needed before a warrant could be issued was without prejudice to the further requirement that an application had to be made to fix the date for permission. In other words, the requirement of CCR 26r5(1)(a) as applied to the facts of this case was that both applications had to be made, albeit the second had to be made nearly 5 years after the first had been made.
- LBS's retrospectivity contention. LBS also contended that if it was required to obtain the permission of the court to apply for a warrant, that permission was in fact obtained retrospectively by virtue of the order made by the judge in LCC on 22 April 2013. That contention is untenable. The order made on that date had nothing to do with the court's grant of permission to issue a warrant but was solely concerned with AA's application to suspend the execution of a warrant which had previously been issued.
(5) Non-compliance with CCR 26r5(1)(a)
- The consequences of non-compliance with CCR 26r5(1)(a) were dealt with in the decision of the Court of Appeal in Hackney LBC v White which held as follows. Where a warrant has been issued administratively without the landlord first obtaining the permission of a judge to issue it in circumstances in which the order for possession had been made six years or more prior to the issue of the warrant, it was invalid and its issue was not a mere irregularity. The requirement to obtain leave is a very important one since, after a gap of six years from the making of an order for possession, whether that order has been suspended for part or most of the intervening period or not, it is necessary that there should be a judicial inquiry into all relevant circumstances to determine whether it is fair and appropriate to issue the warrant after such a long period of time has elapsed since possession was first ordered. In such cases, it is not sufficient for there to be a mere administrative assessment in the court office of whether or not the warrant should be issued.
- The warrant will be set aside even if it has been executed and the tenant has been evicted if it was obtained unlawfully and improperly, oppressively, fraudulently or following an abuse of process, AA's remedies if the warrant is set aside following its unlawful issue and subsequent execution must await a decision as to whether it should be set aside.
(6) LBS's practice for evictions and storage and disposal of possessions
- LBS's Eviction Procedure. LBS's Housing eviction procedure laid down by LBS in the Housing Management Eviction Procedure ("EP"), which was mandatory, may be summarised as follows:
(1) Income officers were primarily responsible for carrying out rent arrears evictions and an income officer was required to attend with the court bailiff at every rent arrears eviction.
(2) An income officer had first to obtain the authority of an Area Manger to apply for a warrant to evict a tenant. This was done by submitting a SEVR containing all relevant details of the arrears, the tenant's past performance in paying his rent, details of past possession and suspension orders, of his and his family's vulnerability, of any change in their circumstances and of any other useful information. The Area Manager had to sign the SEVR authorising the eviction.
(3) The income officer then had to apply for a warrant, either by application to the court office for the administrative issue of a warrant or to a judge if the order for possession was more than six years old. Having received notice of the date of the eviction, the income officer had to enter the date on iWorld and print an EVDA letter which notified the tenant of the date and time of the bailiff's visit to enforce the warrant and advised the tenant to settle all outstanding arrears and to remove all possessions from the flat prior to the eviction date. This letter should be hand delivered by the income officer as soon as possible after LBS had been notified by the court of the date for its execution.
(4) The income officer should pay a pre-eviction home visit to the tenant and hand deliver the EVDA letter and notify the Homeless service of the pending eviction. If the tenant was not at home, a further visit or visits should be arranged as necessary so that the visit actually took place. The purpose of the home visit was to advise the tenant how to avoid the eviction by paying off the arrears or to reach an agreement about the arrears and to see whether it was likely that the tenant would not remove all personal belongings from the flat prior to the eviction taking place.
(5) When the pre-eviction report made following the home visit suggested that the tenant was unlikely to have removed all personal belongings from the flat, the relevant resident officer was to be informed by the relevant income officer of the place, date and time of the eviction and that resident officer was then required to attend the eviction or arrange for another resident officer to attend and the attending resident officer was required to take responsibility for any personal effects left in the premises.
(6) The income officer also had to attend the eviction. Once the bailiff had obtained vacant possession and all occupiers had left the property, the bailiff had to give possession to the income officer by passing the keys and a signed copy of the warrant to that income officer.
(7) The income officer was required to hand over the keys and any paperwork to the resident officer who would take an inventory of all possessions left in the property.
(8) The keys were not to be handed to a member of the Voids team responsible for carrying out surveys and repairs to make the premises ready for the incoming tenant. The income officer and the resident officer where under clear and firm instructions that the keys could only be handed by the income officer to the resident officer who could only hand them onto the voids officer if and when all possessions left in the premises had been photographed and inventoried.
(9) It was the responsibility of the resident officer to ensure that any possessions left in the property were dealt with in accordance with section 41 of the Local Government (Miscellaneous Provisions) Act 1982 as amended and with LBS's Storage and Disposal of Goods Procedure. These requirements were to the effect that the possessions had to be taken into store and stored safely by LBS for one calendar month following their removal from the flat.
(10) Two staff members were to be present when the inventory was being recorded and photographs would be taken when possible. The possessions would be recorded room by room with as full a description as possible.
(11) If possessions were to be stored, they were to be stored and notice was to be served on the tenant to collect them. If the possessions were not collected within one calendar month of the service of the notice, they could be sold or disposed of.
- All LBS officers, whether income or resident officers, were under firm instructions that this procedure had to be followed when any possession order was being enforced by the bailiff. It was serious misconduct for any housing officer to depart from this procedure to any save minimal extent.
(7) Terms of AA's secure tenancy
- AA's conditions of tenancy were set out in a document dated February 2010 issued by LBS. The agreement provided that LBS could only end the tenancy and obtain possession of the property in line with the law. The tenant was to make sure that he and everyone living with him moved out and that LBS was given vacant possession.
- A breach of the covenant of quiet enjoyment that was implied by law into the tenancy agreement occurred if the landlord unlawfully evicted or arranged for the unlawful eviction of the tenant, evicted the tenant for an unlawful ulterior purpose or removed and destroyed the tenant's possessions without lawful authority.
Part 4 - The facts
(1) 2001 - 2006
- Between 2001 and 2006, AA's arrears rose from zero at the inception of his second tenancy to approximately £1,500 in November 2006. The only reason for the accumulation of these arrears was that AA was paying his rent with his Housing Benefit and there was a small weekly shortfall of about £11 per week between the sum paid directly to LBS as Housing Benefit and AA's weekly rent. There were five short periods when Housing Benefit was stopped but the sums that were not paid in those periods were paid in arrears once Housing Benefit resumed. These stoppages were caused by the need to obtain fresh information from AA which was delayed in being provided or processed. AA was also recorded as paying a total of about £1,400 in that 6-year period in small amounts that were paid intermittently.
- In this period, LBS sent AA two section 83 warning letters, on 19 June 2001 and 5 January 2004. In both cases, no further action was taken following LBS's contact with the DSS Benefit Agency and Jobseeker's Allowance seeking and confirming the direct payment of sums to cover the rent shortfall out of AA's Jobseeker's Allowance payments.
(2) LBS's attempts to obtain AA's eviction
- On 2 June 2006, AA was sent a section 83 letter for the third time, the previous letters being dated 19 June 2001 and 25 May 2005. The arrears of rent were £1,271.54. On 14 August 2006, AA was sent a warning letter that his case was to be sent to legal advisers since he was still in arrears and these had increased to £1,400.02. On 14 August 2006, LBS issued a claim form seeking possession and the arrears of rent. On 8 September 2006, LBS advised AA that the hearing of its possession claim would be on 13 November 2006. AA did not attend the hearing and the court was informed that the arrears were £1,563.86, that Housing Benefit had been paid throughout, that the rent payment that was payable by AA was £11.68 per week, that he had failed to respond to 5 letters sent between December 2005 and September 2006 and that there had also been no response to two home visits. On 13 November 2006, the court ordered possession on or before 27 November 2006 and gave judgment for the total sum in arrears of £1,551.86 and £150 costs. This was the only order for possession that has been made in this case.
- AA consulted solicitors with the benefit of legal aid. This was the only recorded occasion that he has acted through solicitors in any of his various cases. On 22 November 2006, these solicitors applied to have the order either set aside or varied so as to postpone the date for possession. AA provided a detailed witness statement in support of his application. In it, he explained that a substantial part of the arrears had occurred because he had arranged that the shortfall between the weekly rent and his weekly Housing Benefit payment would be paid directly to LBS out of his Jobseeker's Allowance but that those responsible for making these direct payments had failed to make them. He also explained that the multifarious litigation he had been engaged since he had moved into the flat had distracted him. He had not attended the hearing on 13 November 2006 because he had understood from the LBS representative at the One Stop Shop he had visited in Peckham to discuss the claim that LBS would arrange for the rent shortfall to be paid directly to the Housing Department out of his Jobseeker's Allowance payments and that it had therefore not proceed with the claim. He offered to pay off the arrears at the rate of £2.90 per week. He also intimated a claim for disrepair arising from problems with the radiator in the living room, the fans throughout the property and cockroach and mice infestation. On 2 February 2007, the court varied the possession order. The terms of the variation were in Hassan form. The order as varied postponed possession on terms that LBS would not be entitled to apply for a date for possession so long as AA paid the current rent and £2.90 per week off the arrears and that the order would cease to be enforceable once the arrears had been cleared in full.
- AA's solicitors received a letter dated 19 February 2007 from Jobcentre Plus who administered Jobseeker's Allowance payments. A copy was sent to LBS and was placed on AA's Housing File. The letter stated that a weekly deduction from AA's Jobseekers' Allowance, which was an income-based benefit, of varying amounts between £11.20 and £11.50 per week had been made over various periods between 28 August 2002 and 12 July 2005. These sums had been deducted over a total period of 27 months and a total sum of £1,343.90 was stated to have been paid directly to LBS. However, none of these payments are recorded on the section of LBS's rent payment database relating to AA's rental payments as having been received by LBS and there is no evidence that LBS chased up these payments or, if it received them, credited them to AA's account. Had this information been available to the court at the hearing two weeks earlier, it seems unlikely that it would have done other than set aside the possession order subject to a condition that the small outstanding sum of about £218 was first paid off.
- AA's solicitors were instructed on legal aid and the certificate only covered the possession claim. They therefore ceased to act for AA at this point and AA has subsequently always acted in person.
- AA did not comply with the order dated 2 February 2007 and at a hearing on 1 July 2007, LBS applied for and was granted a date for possession. LBS then applied for a warrant which was due to be executed on 1 September 2007 but AA applied for and was granted a stay of the warrant pending a hearing of his application for possession to be suspended. At a subsequent hearing on 12 September 2007, possession was suspended and no new date for possession was provided for on terms that AA paid the current rent and £3.05 off the arrears of £3,201.87 and the warrant was ordered to be struck out.
- On 3 June 2008, LBS applied for a date for possession because the condition concerned with AA's direct payments had not been complied with. On 1 July 2008, AA was ordered to give up possession on 8 July 2008 and LBS applied for a warrant which was issued and was due to be executed on 1 September 2008. AA successfully applied for the warrant to be suspended and on 4 September 2008 the court ordered that the warrant would remain suspended on terms that AA paid his current rent and £3.05 per week off the arrears and a further £1,000 on or before 18 September 2008 and that all future stay applications were to be heard by a circuit judge. AA paid a total of £950 and on 4 November 2008 the court ordered that the warrant would remain suspended and was not to be enforced so long as AA paid the current rent plus £3.05 off the arrears.
- By 3 February 2010, the current arrears were £2,426.19 and the shortfall in payments make pursuant to the order dated 4 September 2008 was £269.80. Since the last payment that AA had made had been on 9 December 2009, LBS's Housing area manager authorised the income officer to initiate enforcement action. A warrant was applied for on 5 February 2010 and it was issued on 2 March 2010. AA applied for a stay and on 6 May 2010, the court ordered that the warrant should remain suspended on terms that AA paid the current rent plus £3.30 off the arrears of £1,152.31. No payments were made towards the rent shortfall and the area manager again authorised the income officer to apply for the issue of a warrant. When issued, LBS and AA were notified that it would be executed on 13 September 2010.
- AA applied to set aside or vary the original possession order or to strike out the application for a warrant. He supported this application with a lengthy statement which made the following points:
(1) Since May 2010, he had personally made payments totalling nearly £2,000 (in fact these payments totalled £1,880.89).
(2) LBS had not re-activated direct payments from Jobseeker's Allowance as it had been asked and had agreed to do.
(3) One of his friends had contacted LBS directly and offered to pay £500 towards the outstanding arrears but this offer had been refused so that the money was never paid.
At the hearing on 10 September 2010, the income officer informed the court that AA's current arrears that is the shortfall in meeting the suspended possession order payment conditions were currently £187.02.
- AA's arrears on 15 September 2010. The court dismissed AA's application to set aside or vary the original possession order since the court had already dismissed a similar application on 6 May 2010. However, by consent, it ordered that provided the rent was paid whilst AA's application for direct deductions to be made from his Jobseeker's Allowance, the warrant would be suspended on terms that AA paid the current rent plus £3.30 towards the arrears. On 20 October 2010, LBS wrote to the Direct Payments Section of Makerfield Benefits Centre requesting it to confirm that third party deductions had been set up from Jobseeker's Allowance in the weekly sum of £20.78 in relation to AA's tenancy and, on 5 November 2010, Jobcentre Plus replied confirming that such deduction payments in favour of LBS had been set up.
- Summary. In the period between 2 February 2007 and 10 September 2010, there were the following periods between court orders: between 2 February 2007 and the suspended order of 4 September 2007, between 4 September 2007 and the suspended order of 4 September 2008, between 4 September 2008 and the suspended order of 6 May 2010 and between 6 May 2010 and the suspended order of 10 September 2010. Throughout each of those periods, AA paid a total of about £3,100 in intermittent lump sum payments but no Jobseeker's Allowance is recorded as having been paid directly to LBS although third party evidence on the Housing File suggests that at least £1,343 had been paid directly to LBS out of the Jobseeker's Allowance fund. The total arrears were £1,106.95 and the shortfall in arrears payments on 10 September 2010 was £187.02. It is to be noted that, had the database recorded AA's Jobseeker's Allowance payments that had apparently been paid to LBS on his behalf, there would have been no arrears on 10 May 2010 and the suspended order for possession would presumably have been discharged.
- Housing File deficiencies. For unexplained reasons, the last document on AA's Housing File when it was finally disclosed was Jobcentre Plus's letter dated 5 November 2010. The Housing File had not been disclosed by LBS before the trial as it should have done. Mr Rutledge QC explained on instructions that LBS considered the Housing File to be irrelevant to the live issues in dispute, being on its contention, the assessment of special damage resulting from the destruction of AA's possessions. On the second day of the trial, I directed that it should be disclosed since these documents were relevant to issues of general damages arising from the destruction of AA's possessions and to all issues arising out of AA's eviction that AA correctly maintained remained in contention. LBS's legal team complied with my direction and obtained the entire hard copy of AA's Housing File. This was copied it in its entirety and LBS provided one set of the copies of the documents on AAS's Housing File to AA and added a second set to the trial bundles on the third day of the trial. I asked Mr Rutledge QC to take instructions as to whether AA's entire Housing File had been disclosed and, on instructions, he informed me that all the documents then on the Housing File had been disclosed. It is clear from the iWorld entries concerned with AA that there were a number of documents that had been generated in the period since November 2010 which were of a type which would have been placed on the Housing File. It was also significant that the contents of AA's file on the Residential Management Team's EDMS system had not been disclosed and were never disclosed so that it was not possible to ascertain what relevant resident officers had done in relation to AA's tenancy since November 2010.
- LBS's acquiescence between November 2010 and July 2012. It is clear from the iWorld and rent database entries between November 2010 and July 2012 that there was no direct contact between AA and his income officer in that period and that he made no payments towards his rent shortfall. Initially in that period, AA's income officer was Mr Ron Wubuya who had been his income officer since August 2008. AA's Housing Benefit was paid to LBS and in addition to AA making no payments towards his rent shortfall, nothing was recorded as being paid towards it out of his Jobseeker's Allowance. There was only one recorded intervention of any note by Mr Wubuya. He wrote to AA on 8 June 2011 and pointed out that there was a 16-week period of rent shortfall non-payments totalling £335.18 that had built up since 10 September 2010 which AA was asked to clear. The letter made an appointment for AA to see Mr Wubuya but AA failed to attend that appointment and Mr Wubuya did nothing further even though AA paid nothing towards his rent shortfall and no third party payments were made.
- Mr Wubuya was replaced as AA's income officer by V Seale in October 2011 and he or she was replaced by Ms Christine Okwara in June 2012. Ms Okwara's first contact with AA was a letter that she recorded on iWorld that she had hand delivered to AA's flat on 2 November 2012. The letter warned him that his arrears with the payments he had been ordered to make as a condition of the order dated 10 September 2010 staying the execution of the warrant totalled £1,367.27. He was instructed to make up that shortfall within 7 days and he was told that if he failed to do so, LBS would seek a further eviction date from the court. The letter concluded by informing him that Ms Okwara had made an appointment to see him on 9 November 2012 at LBS's Harris Street office to discuss what the letter described to be "this serious matter".
- A copy of this letter was the earliest of four letters that were purportedly addressed to AA and signed by Ms Okwara that had not been disclosed and were not on the Housing File but which Mr Rutledge QC produced during his opening without any explanation of where they had come from or when they had been created originally. Unlike the three later letters, this first letter was referred to on iWorld as having been hand delivered to AA who accepted that he must have received it but since all his documents had been destroyed, he had no means of checking what documents he had received and he was understandably uncertain which documents he had received. LBS did not explain why this document, although it had been referred to on iWorld, was no longer on AA's Housing File.
- AA's meeting with Ms Okwara on 9 November 2012. AA attended the meeting and Ms Okwara recorded the outcome of the meeting on iWorld as follows:
"[AA] attended the appointment. I advised what the council's position is if the shortfall is not paid. [AA] said he is trying to put the shortfall money together but this is going to take about 6 weeks to 2 months to raise the money. I informed [AA] that no payment had been received for over a year and this is unacceptable. [AA] understands this, and pleaded not to apply for eviction, I said this is not acceptable to the council and I will apply for an eviction date. I have also advised [AA] to resume payment of £43.02 per fortnight. [AA] said he will start doing this on 17/11/12."
AA stated that he showed Ms Okwara a letter from Student Finance England which confirmed that he was eligible for SFE funding up to £9,500 having enrolled on a course that it recognised as being one for which its funding was available. AA's evidence was that this funding availability was subsequently withdrawn by SFE after all his documents had been destroyed because he could not satisfy SFE of his continuing entitlement to be funded.
- Mr Davis's involvement. The next event recorded on iWorld was a telephone call that Ms Okwara's line manager Mr Brian Davis made to AA on 27 December 2013. Mr Davis informed Mr Matthews in his first interview with him that Ms Okwara had been on leave for the whole of December and that he had covered her patch. Mr Davis had only been an Income Team Leader since September 2011 when he became an income officer having previously spent many years as a Senior Debt Collector. He would therefore have had a debt-focused approach to the collection of rent arrears. His note in iWorld recorded that he informed AA that it was unacceptable that he had made no payment since February 2011 and that LBS would be seeking his eviction without further warning. His note ended by instructing Ms Okwara to submit paperwork as soon as possible. The reference to paperwork was clearly to two standard forms that had to be prepared and submitted by an income officer when initiating eviction action against a tenant. The first was the LBS standard SEVRA or Subsequent Eviction Request form that had to be submitted to Mr Hilder as the relevant area manager to obtain his authorisation for the initiation of eviction action and the second was an application in writing to the LCC on a different standard Request for a Warrant of Possession of Land form produced by the Court Service requesting the court to issue and execute a warrant for possession. It does not appear that Ms Okwara attempted to apply to a judge through LCC for permission to apply for a warrant so that Mr Davis' reference to paperwork does not appear to include a reference to papers associated with such an application.
- Mr Davis told Mr Matthews that when Ms Okwara returned from leave in early January 2013, he expressed his dissatisfaction to her that AA had not been paying rent for a year without any action had been taken and he instructed her that he wanted AA's case progressed to eviction proceedings. He also told Mr Matthews that it was pointless writing to AA as he had already been told that LBS would initiate eviction action against him. Mr Matthews reported that Mr Davis instructed Ms Okwara to start eviction proceedings during the course of this discussion. It is inconceivable that the subsequent steps taken by Ms Okwara in connection with AA's eviction were taken without consultation and discussion with and the agreement of Mr Davis.
- Ms Okwara's telephone call on 18 January 2013. The next entry on iWorld was dated 18 January 2013 in Ms Okwara's name. It recorded that she telephoned AA and informed him of LBS's intentions as per their discussions in November since he had not resumed payments. She recorded that AA informed her that he was waiting for his student loan his evidence at the trial was that he had been accepted on a law degree course at the Metropolitan University and had applied for a full student loan and Ms Okwara's note stated that she told him that since no payment had been received for over a year the eviction would be applied for and that when he was given the date for the eviction, he should seek legal advice.
- SEVR application. The next three entries on iWorld dated 24 January and 11 and 26 February 2013 related to internal actions that Ms Okwara, Ms Maresch and Mr Davis recorded as having taken in relation to AA's eviction. The first action, on 24 January 2013, was recorded as being "SEVR Completed and ready to be authorised". This is a reference to the SEVR form that had to be sent to Mr Hilder for authorisation of eviction action. It is clear from the copies of previous SEVR authorisation applications on AA's Housing File that were made in relation to previous eviction action in his case, that the form provided spaces for all relevant details to be set out. These details included the date of the last scheduled eviction, the reason why the last eviction had not been carried out, the current rent arrears and shortfall, the history of previous stays, any vulnerability considerations or changes in the tenant's condition (such as job, income, family or Housing Benefit) and a concluding section headed "Any other useful information". Mr Davis stated in his short statement that he made on about 31 May 2013 that he had approved the application that Ms Okwara had prepared on 24 January 2013 to proceed with eviction proceedings and had then submitted it to Mr Hilder for his authorisation.
- Mr Hilder's authorisation of the SEVR. The second of these entries on iWorld recorded that Mr Hilder authorised the eviction request on 11 February 2013 and that the shortfall was £1,683.62. AA maintained that the correct shortfall figure was £1,485. The database recorded that the total arrears were £2,353.26. In the absence of documents dealing with AA's shortfalls in payments, it is not possible to determine what the correct totals were for arrears and shortfall payments. The authorisation process involved the income officer sending a copy of the SEVR to the area manager through the internal post and for the area manager to consider it, add any comments and either authorise or reject the application for authorisation to initiate eviction action against the tenant and then return the form to the team who had made the authorisation request. The signed SEVR, when it arrived back with the team, was entered onto iWorld on 11 February 2013 by Ms Aggie Maresch, the income officer service manager.
- What then happened to the SEVR authorising AA's eviction is not known. No copy of the form was placed on AA's Housing File or more accurately no copy was on the Housnig File when it was disclosed during the trial. Mr Hilder had no recollection of signing the SEVR although that is not particularly instructive since he signed several SEVRs every week and could not be expected to remember details of each one he signed. However, he had not been provided with a copy of the signed SEVR when he approved and signed the draft of his statement that had been prepared for him by a member of LBS's legal team using the contents of LBS's documents as source material and there is no evidence that the drafting lawyer had a copy when preparing the draft.
- Furthermore, no copy was provided for use by LBS's representative appearing at any of the hearings concerning the enforcement of the warrant, being those that took place in LCC on 22 and 23 April 2013, the High Court on 1 May 2013 and in LCC on 3 and 14 May 2013. This is particularly surprising since Ms Michelle Ford, a colleague of Ms Okwara, was asked by a member of the legal team dealing with the application hearing in the High Court on 1 May 2013 in an email sent on 30 April 2013 to send that colleague everything concerned with the eviction which would have inevitably have included a copy of the SEVR. It was clear that a copy of neither the SEVR nor of any other document were sent over to the Complex Cases team who dealt with that and subsequent applications and copies of none of these documents were provided to counsel for the hearing. Furthermore, on 4 July 2013, Mr Davis sent a message to Ms Okwara which stated:
"Hello Christiana Please can you scan the eviction paperwork (SEVR) and copy of the paperwork that you would fax to the bailiff confirming our attendance to Aynne. I've checked EDMS but it had not been scanned onto the system. Thanks."
Ms Okwara did not reply to this message and the SEVR paperwork does not appear to have been sent to Aynne or to anyone else and a copy has not since been disclosed by LBS in these proceedings.
- It seems unlikely that no SEVR was ever submitted to or signed by Mr Hilder or that Ms Maresch did not receive a signed SEVR from him when she entered its receipt on iWorld on 11 February 2013. However, it also seems likely that the SEVR was subsequently suppressed since there is no copy of it on the Housing File, Ms Okwara did not provide a copy to the judge at the hearings on 22 and 23 April 2013, no copy was provided to the legal team representing LBS at the subsequent hearings concerned with AA's subsequent applications and a copy was not produced in answer to Mr Davis's request for a copy that he emailed to Ms Okwara on 4 July 2013. Moreover, LBS has not at any stage since produced a copy of the SEVR and the Housing File now appears to have had all documents after November 2010 removed from it.
- The suspicions arising from these omissions are further aroused since it was, or should have been, clear from the details on the SEVR that the warrant had been applied for more than six years after the order for possession that provided the foundation for its issue had been made and any experienced income officer, or legally qualified officer, court official or judge involved in AA's eviction would, or certainly should, have known instantly on seeing the SEVR that the warrant could not be issued without a judge first approving its issue.
- All these considerations point to the suppression of the SEVR by Ms Okwara and/or Mr Davis for an ulterior purpose. This purpose appears to have been, or to have included, a wish to suppress general awareness that there had been a failure to apply to a judge for permission to apply for a warrant more than six years after the order for possession and that authorisation to proceed to an eviction had been obtained using an incorrectly filled-out SEVR.
- Application for warrant. The third of the three internal entries on iWorld showed that Ms Okwara applied for the administrative issue of a warrant soon after the SEVR was apparently signed and LCC rapidly thereafter notified LBS of the appointment date since Mr Davis placed on iWorld on 26 February 2013 the information that LCC had notified LBS that the eviction had been listed for 23 April 2013 at 10.35am. The application would have been made on a standard County Court N445 Form and a copy of this application and of the Notification of the bailiff's eviction visit to the flat that was issued pursuant to it would have been placed on the Housing File in conformity with the practice followed on the three previous occasions when this form had been used on 9 August 2007, 15 July 2008 and 5 February 2010.
- EVDA letter - general. Ms Okwara should, in accordance with the EP and standard income officer practice have delivered an EVDA pre-eviction letter to AA and handed it to him in the form set out in the schedule to the EP immediately after she learnt of the eviction appointment on 23 February 2013. However, the EVDA letter was only dated and then sent or delivered to AA, if was sent or delivered at all, on 15 or 18 April 2013.
- Ms Okwara's letter dated 13 February 2013. Before considering those letters, it is necessary to consider a letter dated 13 February 2013 which purports to have been signed by Ms Okwara and sent to AA. There is no reference to this letter on iWorld and a copy of it was neither on the Housing File nor formally disclosed by LBS and its authenticity has not been established. A copy of it, and the letters dated 1 November 2012 and 15 and 18 April 2013 were produced to the court during LBS's counsel's opening at the trial without them having previously been disclosed, and without any explanation as to who had created each letter, when each had been created, from which file they had come from, why they had not been referred to on iWorld or placed on the Housing File and why there was no proof of postage or delivery being provided then or subsequently.
- The letter dated 13 February 2013 was modelled on the EVDA form but it omitted vital passages from the standard template letter which the EP required an income officer to send and which was apparently sent when a full copy of the EVDA letter was prepared or purportedly prepared on 15 April 2013. The missing passages were as follows:
(a) The date on which the warrant was to be executed was not set out in the letter. This was inevitable since the information as to when the eviction was to take place was only received by LBS from LCC on 26 February 2013.
(b) The date on which LCC had made an order suspending the eviction previously scheduled was left blank in the letter. This passage referring to the previous suspension order does not appear in the EVDA letter form.
(c) This passage from the EVDA letter form was omitted: "You are advised to remove all your belongings before the eviction date as anything left in the property once the bailiffs have given the council possession will be regarded as unwanted items to be disposed of."
(d) This passage was also omitted: "In line with the Council's policy you may be found to be intentionally homeless due to your failure to pay rent. Under the Provisions of the Housing Act 1996, the Council will be under no obligation to re-house you."
(e) This vital passage was also omitted:
"Please do not ignore this letter and act now by
3) Making an application to Lambeth County Court. A Judge will decide whether the eviction will proceed. Please note that your application will be opposed by the Council."
- The amount of arrears was stated to be £2,371.47 which tallied with the database entry for 17 February 2013. There was no reason in principle why an income officer should not send a tenant a warning letter in these terms. However, income officer standard procedure was to send AA such a letter soon after Ms Okwara's meeting with AA on 9 November 2012 or Mr Davis' telephone call to him on 27 December 2012. Moreover, in conformity with similar letters sent on previous occasions when eviction was contemplated, the letter would not have omitted the date of the order suspending the previous warrant and it would have advised AA that he could make an application to LCC to stay the eviction, of the need to remove all his possessions from the flat prior to the warrant being executed and of the danger of his becoming intentionally homeless if he were to be evicted.
- Moreover, Ms Okwara had received Mr Hilder's authority to initiate eviction action in a signed SEVR two days before the letter was purportedly written and had either applied for, or was about to apply for, a warrant. She would therefore have been aware that, in conformity with EP procedure, she was about to visit AA in his flat to hand-deliver an EVDA letter and to discuss his imminent eviction with him. It was therefore most improbable that Ms Okwara sent out a pre-EVDA letter of this kind when she knew that an EVDA letter was about to be delivered. Furthermore, AA had no recollection of receiving this letter. Given all these considerations, there is considerable doubt about its authenticity.
- Ms Okwara's EVRA letter dated 15 April 2013. The EVRA letter dated 15 April 2013 was also produced during counsel's opening without it having been referred to on iWorld, appearing on the Housing File, referred to in any court hearing, provided to any legal representative or disclosed by LBS save informally and unannounced during LBS's counsel's opening. The letter stated that the amount of the arrears was £2,536.20 which tallied with the database entry. This letter, if sent or delivered on 15 April 2013, was sent over 6 weeks after LBS had been notified of the date of the eviction by LCC, it would have arrived at AA's flat 5 working days before the eviction took place and, had the EP been followed, it should have been delivered or received by AA very soon after LBS's receipt of LCC's notification of the bailiff's enforcement date some 6 weeks earlier.
- There is therefore considerable doubt as to whether this letter was sent or delivered at all. AA had lost all his papers and had no clear recollection of what letters he had received. He assumed, and Mr Rutledge QC submitted, that he must have received the letter dated 15 April 2013 since that letter informed him of the date and time of the execution of the warrant and he had issued his application seeking to vary or set aside the possession order and suspend the warrant on 17 April 2013 on receipt of it. However, AA has typed into his application the number of the warrant which was B0000157. He could not have obtained this number from Ms Okwara's letter since it was not recorded on that letter. He could only have obtained it from a copy of the Notice of Appointment with the Bailiff which the LCC court office of would, in conformity with usual practice, have sent to him and which probably arrived in AA's flat on 16 or 17 April 2013 and certainly only a day or two before AA lodged his application to LCC since he was always very quick to react to notifications of intended evictions.
- Delay in pre-eviction home visit. It is instructive to consider this email which was sent by Mr Hilder to Ms Okwara as an iWorld message on 11 October 2013 which reads as follows:
"Hi Chistiana. I have to write a witness statement with disclosure and this is part of my statement and I have two questions I need to try and answer before my 4 days in court and I'm hoping you can help me. Please answer honestly for me as barrister suspects I will be asked these in court.
1. Notice of Eviction notice of the bailiff's appointment setting an eviction date of 23 April 2013 at 10.35am was received by the Council on or about 26 February 2013. I understand it is the practice of the Court to deliver a Notice of Eviction to the property.
2. On 15 April 2013 the Income Officer Ms Okwara delivered an eviction letter (EVDA) to [AA] in accordance with the EP, paragraph 3 informing [AA] of the eviction date and advising him to remove all his belongings in the property and that anything left would be regarded as unwanted items to be disposed of. Why did it take nearly 6 weeks to deliver this letter and only 8 weeks before the eviction?
3. The EVDA letter reflects the EP at paragraph 11 which states that those personal belongings left which are clearly junk/unusable may be disposed of but requires that an inventory should be taken by the (Resident) Housing Officer and a photograph of every room be kept on the record.
4. On 18 April 2013, the Income Officer Ms Okwara recorded on the iWorld notepad that she had visited the property to carry out a pre-eviction visit and as no-one was in put a calling card through the letterbox to advise [AA] of her visit. As per eviction procedure/pre-eviction report, when there is no-one at home you have to highlight the case to a resident officer to assist with contact and another visit with you. Why did this not happen?"
- Mr Hilder assumed that Ms Okwara had delivered the EVRA letter to AA on the date it was dated, 15 April 2013, in accordance with the requirements of the EP that required the EVRA letter to be delivered to the tenant by the income officer soon after the date for the eviction was known. Ms Okwara did not visit AA's flat until 18 April 2013 as she recorded on iWorld and, if she delivered a letter at all during that visit, would have delivered the letter dated 18 April 2013. Ms Okwara did not reply to Mr Hilder's enquiry on iWorld nor, according to his evidence, in other any other way so that he never got answers to his instructive questions. Mr Hildred could not explain why he had not chased Ms Okwara up to answer his questions and LBS made no attempt to adduce evidence at the trial to answer them.
- There is therefore good evidence that Ms Okwara deliberately delayed her pre-eviction home visit and there is no reliable evidence that Ms Okwara sent AA or delivered to him the letter dated 15 April 2013.
- Booking of carpenter. On 16 April 2013, Ms Okwara booked a carpenter for the eviction from Mears who LBS used on a regular basis to supply locksmiths and carpenters for evictions.
- AA's stay application. AA received a copy of the warrant from the court on about 16 April 2013. AA's evidence was that he attempted to see Ms Okwara at LBS's Harris Street office but she was unavailable and other officers there declined to discuss his case with him. He had a similar result when he visited the Peckham One Stop Shop. In consequence, he issued an application in the LCC on 18 April 2013 seeking an order to vary or set aside the possession order and to suspend the warrant. This application was faxed by LCC to LBS on 18 April at 12.37 with a hearing date on 22 April 2013 inserted on it.
- Ms Okwara's notification to Ms Ashley. Half an hour later, at 13.06 on 18 April 2013, Ms Okwara emailed Ms Ashley to inform her that AA's flat was up for eviction on 23 April at 10.35. At 17.32, Ms Ashley emailed back that she had "intro visit and tenancy checks" between 10.00am and 2.00pm that day and Ms Okwara emailed back at 10.07 the following morning "OK".
- Ms Ashley was asked by Mr Matthews when he interviewed her during his investigation whether Ms Okwara had asked her to attend the eviction and she replied that Ms Okwara had not asked her, she had merely advised that there would be an eviction at his flat. Later in the interview she accepted that the resident officer should undertake a pre-eviction visit to establish whether there were likely to be storage issues. Ms Ashley had been a resident officer for 31 years and was very well acquainted with LBS's eviction procedures and she accepted that she was very well acquainted with them in this interview. It is inconceivable that she considered that Ms Okwara's email was sent her, as AA's resident officer, merely for information and it was also inexplicable that if she was already engaged to undertake another task, she did not re-arrange that task or arrange for a colleague in her team to attend the eviction on her behalf.
- In fact, nothing further was done by either Ms Okwara or Ms Ashley to ensure that another member of Ms Okwara's resident officer team attended AA's flat eviction or to re-arrange the time of the flat eviction to accommodate Ms Ashley's other engagements. Ms Okwara stated that she requested Ms Ashley to attend and when she responded that she was unavailable, she didn't do anything since her responsibility was to inform her of the eviction which is what she had done. It is inconceivable that Ms Okwara considered that she had no obligation to chase up Ms Ashley to arrange for another housing officer to carry out a pre-eviction visit and to attend the eviction. She was an experienced income officer of 11 years standing who was well acquainted with the EP that she was in the process of purporting to implemt.
- The panel who dealt with Ms Ashley's disciplinary hearing found that she had failed to follow the Goods Storage or Disposal Procedures since, amongst other failings, she had failed to carry out a pre-eviction visit and also had failed to re-arrange her time so that she was available to attend the eviction. Ms Okwara likewise was found to have failed to chase up Ms Ashley or her team to ensure that a resident officer carried out a pre-eviction visit and also attended the eviction.
- A further curiosity is that Ms Okwara emailed Ms Ashley who responded by email. This exchange should have appeared on iWorld and was only disclosed to Mr Matthews when he insisted on receiving copies of relevant emails that each had sent out.
- All these considerations point to Ms Okwara and Ms Ashley agreeing in a private exchange that no resident officer would attend AA's eviction and that since this arrangement was a flagrant departure from the EP, it would be masked by Ms Okwara "notifying" Ms Ashley of the eviction and she, in turn would not attend or arrange for someone else to attend and instead state if asked that she had assumed that all that the email was doing was notifying her of the time and date of the eviction without it being a request for her to attend.
- Ms Okwara's letter dated 18 April 2013. The letter dated 18 April 2013 that Ms Okwara apparently sent to AA, like the two earlier suspicious letters dated 13 February and 15 April 2013, was not referred to on iWorld, was not on the Housing File and had not been disclosed save during LBS's opening. It is a somewhat confusing letter since it does not tally with the letter dated 15 April 2013. It reads as follows:
"Re [AA's flat] Notification of Court Hearing
Lambeth County Court have now advised me of the date when it will hear the Council's case for seeking repossession of your home.
The hearing will be on Tuesday 23rd April 2013 at 10.00am and you should make every effort to be at the Court by 9.30am. It is important that you attend as your home is at risk.
I attach an up to date rent statement, and also attach my understanding of your housing benefit position. At the court hearing, I intend to seek an outright possession order.
We do not want to evict you, but unless you take steps to clear your arrears, we have no option other than to proceed with this action.
If you need help to manage your finances then I may be able to assist you but your rent payments must be your first responsibility. You may be entitled to claim Housing Benefit and, if you have not done so already, I can help you with your application.
If you are evicted for non-payment of rent, then it is likely that you will be found to be intentionally homeless. The Council will then have no obligation to assist you further with housing.
Please do not ignore this letter. You still have a chance to prevent substantial court costs and a possession order if you clear your debt in full. Alternatively, we can assist you by obtaining a suspended possession order if you make an appropriate arrangement to clear the debt in instalments."
- Thus, the letter notifying AA of a forthcoming hearing of a claim for possession was wholly inappropriate as a response to AA's application to stay execution of a warrant. Had he received it, AA was entitled to assume that LBS would discuss and be prepared to negotiate terms as to a further suspension of the order for possession and the consequent withdrawal of the warrant. He would not have realised that LBS had no intention to negotiate on any terms and only intended to seek to ensure that the bailiff executed the warrant on 23 April 2013.
- Overall, however, there is considerable doubt as to the authenticity of this letter as well.
- Ms Okwara's pre-eviction home visit on 18 April 2013. Ms Okwara then carried out her cursory visit to AA's flat on 18 April 2013. It seems likely that Ms Okwara went round to AA's flat having received notification of the date and time of AA's application to suspend the warrant in order to post her card through his letter box. She does not appear to have delivered the letter dated 18 April 2013. It was a wholly inappropriate letter to send in response to the notification of AA's application to stay the warrant that had been issued administratively some weeks earlier. The letter is, in appearance, a standard letter sent to tenants prior to the hearing of a claim for possession. AA's claim for possession had been issued more than six years earlier in November 2006. The terms of the letter are entirely directed to a tenant who is in arrears of rent, who has not previously been involved in court proceedings initiated by LBS and against whom it has issued a claim for possession which is about to be heard in the county court. Had the letter been seen by AA, he would have been extremely confused since it ended with the suggested that LBS could assist him by obtaining a suspended possession order if he made an appropriate arrangement to clear the debt in instalments.
- It is highly doubtful that Ms Okwara intended to visit the inside of the flat or to meet and converse with AA. She had not announced or warned AA of her visit in advance. AA was in the flat when she called by and, being a small flat, he could hear anyone standing outside the front door. He heard Ms Okwara leaving the calling card but he did not hear any knock or other audible sign of her presence. He went to the front door, found Ms Okwara's visiting card on the floor with no message on it and rapidly opened the door but could not see her, an indication that she had left the scene very rapidly. On several occasions over the next few days, Ms Okwara declined to speak to AA or appeared to take avoiding action so as to avoid meeting or speaking to him. Taking all this evidence together, it is clear that Ms Okwara had planned to carry out the appearance of a pre-eviction visit in a way that would ensure that she never actually met AA or entered his flat.
- AA's stay application hearing on 22 April 2013. As with all so-called DIY evictions, Ms Okwara attended AA's hearing and represented LBS. This initial hearing was solely concerned with AA's attempts to stay execution of the warrant pending a full hearing of his application for a stay. Neither AA nor Ms Okwara provided the district judge with a witness statement or it would seem, with any papers save AA's application notice. The judge did not consider, and Ms Okwara did not ask him to consider, whether the warrant was valid given that the possession order had originally been made more than 6 years previously and no reference was apparently made to the non-observance of the EP or the short notice that AA had had of the pending eviction. Ms Okwara was invited to speak first and informed the judge that AA had not made any payment of his part of the rent, namely the shortfall rent, for the last 2 years even though he was on full Housing Benefit. AA was reported in Ms Okwara's iWorld note as informing the judge that the warrant should be stayed because he was making a disrepair claim which was at least 4 years old. The judge dismissed that as being out of time. By way of explanation for the non-payment of shortfall payments over the previous 2 years, AA mentioned a payment of £600 that had been made 2 years previously and that he had applied for a student loan which had not yet come through. Ms Okwara reported that the judge had dismissed AA's application because he was satisfied that the procedure had been followed correctly with several breaches of the court order and he refused permission to appeal.
- AA attempted to discuss his case with Ms Okwara both before and after the hearing but she evidently refused to speak to him or discuss his case on both occasions.
- Ms Okwara stated in her interviews with Mr Matthews that she had not witnessed any difficult or argumentative behaviour from AA during this hearing and that he had not been evicted from the hearing for any such behaviour or for any other reason. She also stated that AA posed no risk and that she had seen him on previous occasions and had chatted to him about his rent arrears without any difficulties. This was significant evidence since the carpenter, Mr Lammas, when interviewed by Mr Matthews, contended that AA had become so argumentative during this hearing that the judge had ordered him to be forcibly removed from the courtroom. It was for that reason that the bailiff had decided that the eviction should go ahead without waiting for a resident officer so as to avoid any trouble if AA returned. Mr Lammas had not been present in court. It follows that, in the light of Ms Okwara's evidence that AA had not caused any trouble in court, someone must have told Mr Lammas to provide that false excuse as the reason for the eviction proceeding without a resident officer being present.
- AA's permission to appeal and interim stay applications. AA immediately issued an application for permission to appeal and an interim application to stay the eviction pending the outcome of that appeal. LCC responded promptly to this application and notified AA and LBS that the application for a stay pending the outcome of his appeal would be heard the following day, the day of the eviction, at 10.00am. The LCC served the notification of the hearing on LBS and Mr Davis was notified and his evidence to Mr Matthews was that he instructed Ms Yusuff to attend the eviction at the flat in place of Ms Okwara since he had asked Ms Okwara to attend and oppose AA's renewed application for a stay.
(3) What should and could have happened
- Application for a warrant. As already explained, the first step that an income officer should have taken when initiating eviction action was to prepare a SEVR and submit that to an area manager to authorise that action. An income officer undertaking a DIY eviction would have been aware of the requirement that an application for a warrant to enforce a possession order that was six years old or more required the approval of a judge and that that approval usually required a hearing at which the tenant was present and was in any case sparingly given. Moreover the SEVR would have provided details of the history of suspended orders, stays and applications for and postponements of the date for possession as well as the tenant's history of compliance and non-compliance with such orders. The SEVR should also have informed the area manager that an application for the issue of the warrant required a judge's approval since more than six years had passed since the possession order had been made on 13 November 2006 so that a fresh claim might have to be issued. It is therefore likely that, had he been given a complete account of the background, Mr Hilder would not have authorised Ms Okwara to apply for a warrant but instead would have directed her to issue a fresh section 82 letter followed by fresh possession proceedings.
- Application for permission to apply for a warrant. The County Court Request for a Warrant form included a space entitled: "Date of judgment or order" and on the second and third of the three previous requests for a warrant dated 15 July 2008 and 5 February 2010 the income officer had filled this date in as "20/2/2007". On the first previous request dated 9 August 2007, this date had been correctly filled in as 13 November 2006 but it had been inaccurately changed to 20 February 2007 in the subsequent requests due to AA's then income officer confusing the order for possession dated 13 November 2006 with the subsequent order varying that possession order.
- Hearing of application by a judge. CCR 27r5(2) provided that an application for permission to apply for a warrant issued six years or more prior to the date of issue should be supported by a witness statement or affidavit establishing the applicant's right to relief and might be made without notice being served on the other party AA in this case in the first instance but the court might direct that the application notice should be served on such persons including AA in this case as it thought fit. In this case, the supporting witness statement would have needed to explain why the possession order had not yet been enforced since it had been made on 13 November 2006, some 6 years 3 months previously, why the shortfall had been allowed to build up unpaid for 2 years 5 months since the most recent suspended order dated 10 September 2010, AA's personal circumstances such as his employment if any, the benefits he was in receipt of so far as these were known to Ms Okwara and the contacts he had had over that period with his income and resident officers. It would also have had to explain why LBS had apparently acquiesced in AA's non-payment of rent shortfall in the two year between September 2010 and November 2012 and had not then attempted to discuss that shortfall with him.
- A judge considering the application would have had to have examined closely both AA's payment record and LBS's attempts to evict him for non-payment of outstanding arrears over the preceding 12 years. AA's consistent failure to address the payment of the shortfall in rental payments was inexcusable. But as the record of suspended orders shows, this non-payment was never of a kind or extent that would be likely to persuade the court to permit AA to be evicted from his secure tenancy and to terminate his 22 years as a LBS tenant, particularly as he had some excuse for the recent non-payments and LBS had apparently acquiesced in his non-payment for about two years. There was therefore a significant chance that the court would permit AA at least one further chance to pay of all his arrears and to start paying shortfall payments promptly and regularly before allowing LBS finally to dispossess him of his tenancy.
- It is noteworthy that one of Mr Matthews' recommendations following his investigation was to the effect that a review should be carried out by LBS into why AA had been allowed to run up rent arrears since September 2010 without making payments. There is no evidence that this recommended review has since been undertaken and no explanation has been given as to why it was not undertaken. However, the apparent laxity of income officers in any acquiescence of AA's continuing disregard of his shortfall payment obligations would have been a relevant factor that a court considering an application to issue a warrant more than six years after the making of a possession order would have had to take into account and which would have weighed heavily against such an order and in favour of LBS being required to issue both a fresh section 82 notice and a fresh claim for possession
- Given these considerations, given that it was not mandatory to apply without notice, given that a full explanation of the background circumstances should have been provided to the court and given the court's reluctance save in exceptional circumstances to permit a warrant to be issued so long after the original possession order had been granted, it is likely that an oral hearing would have been sought by LBS or directed by the judge dealing with a without notice application. It is also likely that the judge dealing with the application would have refused it and would have left LBS to issue a fresh claim for possession if AA did not settle the arrears in the meantime.
- EVRA letter and visits by Ms Okwara and Ms Ashley. About 8 weeks separated the issue and execution of the warrant. Within a few days of its issue, an EVRA letter should have been delivered to AA by Ms Okwara and she should have conducted a pre-eviction home visit to discuss the threatened eviction and the steps that AA could take to remove that threat. These steps should also have included Ms Okwara notifying Ms Ashley that AA had possessions in the flat which might not be removed with him when he was evicted. On being notified, Ms Ashley should have made her own home visit to discuss with AA what was to happen to his possessions and to decide whether it would be necessary for her to make arrangements for their removal to storage following the execution of the warrant. Ms Okwara should also have notified LBS's Homelessness service of AA's pending eviction.
- Steps that AA could have taken. If the EVRA letter had been delivered at the right time, AA would have had at least 6 weeks' notification of the date the warrant was to be executed and would have had time to find and consult a solicitor. He would also have had tome to seek and obtain funds from the Sudan to pay off the entirety of the arrears, as he did in May 2013 when attempting to get himself reinstated into his flat, and properly to prepare his evidence for an application to suspend the warrant. As it was, AA was left with about 3 clear days to do everything necessary and possible to avoid his immediate eviction.
(4) AA's eviction
- The EP that should have been followed. The full facts surrounding AA's eviction have only become clear as a result of a careful and detailed study of the Matthews Report. It is helpful in evaluating them to have in mind what should have happened if the eviction procedure set out in the EP had been followed. The eviction should have been attended by the county court bailiff, a locksmith or carpenter to force entry if the front door was locked and to secure the flat following the eviction and the tenant's income officer Ms Okwara and resident officer Ms Ashley. Each member of this quartet had a defined role to play. Ms Okwara should have undertaken a pre-eviction visit to the flat in order to ascertain whether there would be, or there was, a possibility of there being, tenants' possessions left in the flat. Since she would have seen that this was a possibility, she should have informed Ms Ashley of that fact so that Ms Ashley was present at the eviction. At the eviction, the bailiff with a copy of the warrant being enforced would first attempt to enter the property peacefully on his own. If that was not possible, the carpenter would break into the property and allow the bailiff in alone to take possession. If violence or any form of aggression was suspected, the income and resident officers should pre-warn the bailiff to arrange for police assistance and also notify the Safer Neighbourhood Team. Otherwise, the bailiff should supervise and oversee the departure of anyone who was present in the property at the time of the execution of the warrant.
- Once everyone had left the property, the income officer should enter the property and sign off the warrant and keep a copy. Once the income officer had obtained possession of the property on behalf of the LBS, the resident officer should enter the property, preferably with two others to assist, and take photographs of every room and make an inventory of everything left in the property whereupon both would leave, locking up the property using the new locks, keys or other means of security that had in the meantime been installed by the carpenter. The keys and a copy of the signed warrant should be left with the resident officer who should retain the copy of the warrant, arrange with the Voids team for everything in the property to be taken into storage by LBS save for any rubbish that had identified when the inventory was being made up and then hand over the keys, a copy of the warrant and the inventory and photographs to the Voids team to clear the possessions into storage and then start on the necessary repairs and renovations needed before the property was relet. The goods in storage would be stored for one calendar month and their owners notified and permitted to remove them. At the end of that month, anything uncollected would be disposed of.
- This procedure is much simplified if the occupants were giving up possession without argument or difficulty. The bailiff might not be needed and if the occupants intended to leave with their possessions, they would be asked to sign a Termination of Tenancy ("TT1") form which contained a forwarding address and which the tenant would leave with the resident officer with the keys.
- The eviction - introduction. This clear and readily operable procedure was not followed in a number of significant respects. In order to ascertain what actually happened, it is necessary to consider the sequence of events that occurred with some care. The starting point was the failure of Ms Okwara to ensure that she had conducted a pre-eviction visit of AA's flat with AA present. Since the EP envisaged that the tenant should be given as much notice as possible of the planned eviction so as to enable him to arrange to pay off the arrears in full, and since it might take a number of visits in order to arrange a home visit when the tenant was present, Ms Okwara should have sent an EVDA letter to AA and visited him with a copy of the letter soon afterwards. She should also have arranged with Ms Ashley to undertake a pre-eviction visit as well in order to check what property might need to be taken into storage following the eviction. Ms Ashley, as AA's personal officer, would also have been expected to offer AA advice and practical support in an attempt to assist in the successful resolution of the problems that had occurred without the need for an eviction.
- AA's application for a stay and permission to appeal. AA's application was listed for hearing at 10.00 on 23 April 2013. AA stated that he arrived in good time and that when Ms Okwara arrived, she avoided speaking to him and rebuffed all of his attempts to speak to her whilst they were waiting for the hearing to be called on. As it turned out, this was a long wait so that had Ms Okwara been prepared to discuss the arrears with AA, as the EP envisaged that she would do if possible, a detailed and possibly productive discussion could have taken place.
- From Ms Okwara's iWorld entry, it is clear that, when the hearing was called on, AA opened his application for a stay and for permission to appeal the order made on 22 April 2013 The judge first considered his application for permission to appeal and dismissed it on the grounds that the district judge's decision disclosed no error of law. He therefore also dismissed the application for a stay. The judge was presented with no papers save AA's application notice, was not informed of any detail save a brief account of the district judge's decision and, on that basis, inevitably dismissed the application for permission to appeal.
- The hearing did not start until about 11.20 and it was concluded within about 20 minutes. This significantly later starting time and the finishing time were clearly established by the evidence contained in the Matthews Report. The carpenter, Mr Lammas, told Mr Matthews that he arrived at the flat at about 10.00 and that the bailiff, Mr Ogborn, turned up at the flat about half an hour after the allotted time for the eviction which had been fixed for 10.35. On arrival, the bailiff informed him that AA's stay application was in progress and that AA and the income officer were in court dealing with it. It is also clear from both the carpenter's interview and the written evidence emanating from the bailiff that the bailiff waited somewhat impatiently for some time after he had arrived before receiving a pre-arranged mobile phone call from the court authorising him to execute the warrant and then speaking to Ms Okwara who the phone records show had phoned him at about 11.41. Other evidence including the phone records suggest that the hearing lasted for about 20 minutes and concluded at about 11.40. AA in his evidence provided support to this conclusion since he confirmed that the hearing had been late in starting and that it had ended before noon.
- The carpenter had turned up outside AA's flat about half an hour early at about 10.00. He was expecting the income officer and the bailiff to be there but neither was present. Ms Yusuff never turned up and neither Ms Ashley nor a substitute resident officer was present since Ms Ashley had never intended to be present and had not made arrangements for anyone else to be present. The bailiff finally turned up about one hour later.
- Ms Yusuff's evidence. Ms Yusuff's evidence in her interview with Mr Matthews was not very informative. She stated that she had been asked by Mr Davis, her manager, to be on standby for the eviction because Ms Okwara had to be at court to represent LBS at AA's application. She had originally driven to the immediate vicinity of AA's flat and had parked her car. She waited in her car for about half an hour and received no call. She phoned Ms Okwara but her phone was switched off so she assumed Ms Okwara was in court. She was not told to leave the scene by either Mr Davis or Ms Okwara but decided herself to go to LBS's Harris Street office nearby to get on with her work and wait for a call and dash back if needed. She was asked but didn't answer who was the person was whose call she was waiting for but the only two people she might have been referring to were either Mr Davis or Ms Okwara. About half an hour after she arrived at Harris Street, she was called by the CSO who was on duty there who said that the carpenter had arrived to deliver the keys for the replacement locks. She met the carpenter who gave her the keys which she then left for Ms Okwara in reception. She then called Mr Davis to tell him that she was not at the eviction but was at Harris Street, that the carpenter had dropped the keys off and that she was leaving Harris Street because she had visits to make. She confirmed with Ms Okwara at some later unspecified time that Ms Okwara had received the keys. She concluded with the firm but as shown by other evidence incorrect statement that there had not been any discussion about this eviction in team meetings and that any discussion would have only been with the officers involved.
- The carpenter's evidence. The carpenter stated that he arrived half an hour early and the bailiff arrived half an hour after the allotted time (which would have meant that he had arrived at about 11.00). The carpenter called his office to find out whether the eviction was going ahead when the bailiff arrived. The bailiff asked him whether he wanted to go ahead before AA came back from court. Mr Lammas said that he agreed that the eviction should go ahead if the income officer agreed because they wanted it completed before AA arrived back so as to avoid meeting him given his aggressive nature. He had been forcibly removed from court the previous day on the judge's orders because of his argumentative manner behaviour. The bailiff then called the income officer and after the completion of that call told Mr Lammas that the income officer (i.e. Ms Okwara) had said that it was OK to go ahead. The eviction then went ahead and the bailiff called the income officer again who told him that the keys should be dropped off by the carpenter at Harris Street for the income officer. Mr Lammas said that he then agreed that the eviction should go ahead on that basis.
- The bailiff's evidence. The bailiff was a court official and he was either not prepared or not permitted to see Mr Matthews but he did provide answers to some written questions that had been prepared by Mr Matthews and then sent to him. It was reported that the bailiff had stated that he had had three evictions on 23 April scheduled, at 10.00, 10.35 and 11.25. He stated that the income officer was not present because she was at court. Had he and the carpenter waited for her, they would have had to reschedule the eviction. He received confirmation from the court that AA's case had been dismissed. The bailiff and the carpenter then waited for 20 minutes for the income officer and then proceed with the eviction. The income officer arranged for the warrant to be signed off by the carpenter so that the bailiff obtained his signature because he considered that he was acting on behalf of LBS. The income officer also arranged for the carpenter to drop the new set of keys off at Harris Street.
- Ms Okwara's evidence. Ms Okwara was interviewed three times by Mr Matthews. In her first interview on 15 July 2013, she stated that she had been an income officer for 10 years and that this was the first eviction that she was aware of at which no income officer had been present. On this occasion, only the bailiff and the carpenter where present at the eviction with Ms Yusuff who Mr Davis had arranged to be on site as an alternative income officer attendee to herself who was unavailable to attend since she was in the LCC. She stated that on her way back to her office, Mr Davis called her and told her that Ms Yusuff had left the keys for her at the Harris Street Office. Having obtained the keys, she phoned him again and to ask about the keys and he told her to give them to the duty resident officer to pass onto Ms Ashley. She also stated that she had informed Mr Davis the outcome of the hearing out shortly after the hearing had finished and that he then told Ms Yusuff of the outcome. She only heard that Ms Yusuff was not present on hearing rumours to that effect circulating in the office. In a conversation with Mr Davis, he told her that he had instructed Ms Yusuff to be present at the eviction and he didn't know why she was not there. She also claimed not to have had any contact with Ms Ashley since the eviction.
- At her second interview on 12 August 2013, she stated that the only person she spoke to after the hearing was Mr Davis at about 11.45 and told him that LBS had won to which Mr Davis replied that he would tell Ms Yusuff. She indignantly denied Mr Davis' evidence that she had told him that the eviction had been carried out. She stressed that she only heard that it had been carried out when she got to Harris Street. She stated that she knew that the keys were at Harris Street because Mr Davis had called her to tell her that they were there but she denied that Ms Yusuff had called her to tell her that the keys were at Harris Street. She also stated that she spoke to Mr Davis once she had got the keys, this being the third phone call that she referred to as having taken place between her and Mr Davis.
- At her third interview on 21 August 2013, she was confronted with her mobile phone record of her incoming and outgoing calls during the morning of 23 April 2013. The first relevant call was one she had made to Mr Davis at 09.24am and she stated that she couldn't remember it. She was then asked about a call she had made to Mr Davis at 11.16 and she stated that she probably asked him whether Ms Yusuff was on site. She was then asked about a third call she had made to him at 11.39 and she replied that couldn't remember anything about that call. She was then asked about a fourth call to the bailiff at 11.41 and she couldn't remember anything about that call either. She couldn't explain why she had previously stated that she had not called the bailiff. She stated that she had not agreed that the carpenter should sign the warrant, that she did not arrange for the keys to be dropped off at Harris Street and that she had not given permission for the eviction to go ahead without a LBS officer being present. She was then asked about a fourth call she had made to Mr Davis at 11.42 and she stated that the probable reason for the call was to ask if Ms Yusuff had attended the eviction and to inform him that she had spoken to the bailiff and he had told her that the eviction had gone ahead. When it was pointed out to her that she must have known that Ms Yusuff was not at the eviction since she had stated that the bailiff had told her that the eviction had gone ahead and there was no need for an officer to attend, she merely repeated that she did not know that Ms Yusuff was not at the eviction.
- Mr Davis' evidence. Mr Davis was also interviewed three times. At his first interview on 4 July 2013, he stated that he had instructed Ms Okwara to phone him as soon as she came out of court with the result of AA's application. He had checked to see whether Ms Yusuff was at the property and had found to his surprise that she had gone to Harris Street when she informed him that she had not been present when the bailiff and the carpenter were at the property.
- At his second interview on 5 August 2013, he stated that Ms Okwara had called at about 11.15 on leaving court to say that LBS had been successful. He then contacted Ms Yusuff to inform her that the eviction had gone ahead.
- At his third interview on 21 August 2013, he was asked about his phone records for 23 April 2013. He stated that the call he made to Ms Okwara at 09.24 was, he presumed, to wish her luck at the hearing. He next heard from Ms Okwara after the hearing when she told him that LBS had won, that the eviction had gone ahead and the he would need to tell Ms Yusuff. He was unable to say what his any of his calls to Ms Yusuff at 10.19, from Ms Okwara at 11.16 and again at 11.21 and to Ms Okwara at 11.42 and Ms Yusuff at 11.55 were about. He also said that Ms Okwara must have spoken to the bailiff because how else would she have known that the eviction had been carried out.
- Ms Ashley's evidence. Ms Ashley was interviewed by Mr Matthews on 10 July 2013. She had been a resident officer for about 30 years and had been present at many evictions in that time. She first became aware that the eviction had taken place when she received an email from the CSO at Harris Street at about 16.30 on 23 April 2013 which informed her that an income officer had given that CSO the keys to AA's flat and that the tenant had been evicted that day. The keys were at Harris Street, there was no paperwork with the keys and Ms Ashley was asked to let the Voids team know or whether the CSO should inform them. Ms Ashley replied to that email at 17.32 stating that she didn't know who had given the CSO the keys, that they should have been given to voids by the income officer since the relevant resident officer, who was herself, was not in attendance and that there were no storage issues. This email was copied to Ms Okwara and four other officers.
- Thus, at that stage on 23 April 2013, Ms Ashley appeared to be surprised that keys had been left for her, was stating truthfully that she had not been in attendance at the eviction and that no tenant's possessions requiring storage had been left in the flat. In her interview, Ms Ashley stated that she had known that an eviction was to take place at the flat because Ms Okwara had advised her about it but she couldn't go. She gave no explanation for her failure to arrange for another resident officer to attend or for her view that all Ms Okwara was doing was advising her of the fact of the eviction without any expectation that she would attend or arrange for another resident officer to attend. An explanation from Ms Ashley was called for given the widely held expressed to Mr Matthews by a number of witnesses that the income officer should advise the relevant resident officer about a forthcoming eviction so that that resident officer was aware of the need for him or her or a substitute resident officer arranged by the first resident officer to attend the eviction. In other words, the evidence was that the mere fact of an income officer advising a resident officer of the forthcoming eviction of one of that resident officer's tenants was sufficient to notify that resident officer of the necessity of a resident officer's attendance at the eviction.
- Ms Ashley was asked why she had emailed in response to the email notifying her that keys had been handed in at Harris Street that there were no storage issues and that there should have been paperwork handed in with the keys and that the income officer should have passed on the keys directly to the Voids team. Ms Ashley's answers were that her email should have read that the keys should have been given directly to the Voids team "if" there were no storage issues rather than her innocent mistake which had lead to the email stating "and" there were no storage issues. Ms Ashley also stated that she had assumed that nothing had been left in the flat and that an income officer had been present at the eviction.
- Mr Akinsola's evidence. Mr Akinsola was Ms Ashley's line manager. He was interviewed by Mr Matthews on 4 July 2013 six days prior to Ms Ashley's interview. He stated that the keys should have been returned to or passed to the relevant resident officer. He became aware that Ms Ashley was unhappy about the way that the keys had been handled with no accompanying paperwork on 24 April 2013 and told her to get on with it by which he meant to hand the keys onto Voids without further ado. He had taken this view because he had seen her email which had stated that there were no storage issues. When, some days later, he learnt that AA's possessions had been removed and destroyed, he spoke to Ms Ashley to ask her what she had meant by her statement that there were no storage issues. His recollection was that her answer was not very clear but she felt that she had left out a word on the email.
- AA's evidence. AA was, of course, unable to give direct evidence about the eviction since he was not present. It is surprising that Mr Matthews had not invited him to a meeting at which he could have obtained AA's side of the eviction story. AA was able to give some evidence at this trial about the hearing in LCC but he understandably only had an impression of that stressful hearing which was the second of at least seven hearings between 22 April and 24 July 2013 concerned with his eviction and loss of possessions. He clearly recollected that the hearing had not started at 10.00 am and that it had lasted for a relatively short time once it started. He also recalled Ms Okwara refusing to speak with him before the hearing was called on and her rushing out of court before he could speak to her after it had ended. He was informed, to his surprise, by the usher as he was leaving court that the bailiff was at his flat enforcing the warrant having been notified by phone of the result of his application. He confirmed that no papers save for his notice of application were provided to the judge and he considered that he had not had a fair hearing since he had been stopped from addressing the judge early in his submissions and that Ms Okwara was then asked questions by the judge and responded in a way that did not bring out his principle contentions. He believed that he had drawn the attention of the judge to the failure to apply to a judge for permission to execute the warrant but that he had not been able to explain his extenuating circumstances, his lack of notice of the bailiff's enforcement of the warrant, his unsuccessful attempts to discuss the matter with Ms Okwara and his genuine and realistic prospects of being able to discharge the entire arrears within a short time if given a respite from the eviction enforcement. He also considered that Ms Okwara had not been objective when presenting the background facts, the amount of the arrears, his payment record and his prospects of meeting the draconian payment terms that might be inserted into a final suspended order. He also thought that the hearing had not finished until about noon.
- Summary. I have set out at length the evidence about what each witness who was directly or indirectly involved with the eviction told Mr Matthews about their respective parts in that eviction because these accounts are inconsistent with each other and, in the case of both Mr Davis and Ms Okwara, each of whom was interviewed three times, their account of their actions changed from interview to interview in an apparent attempt to explain away contradictory evidence that Mr Matthews presented them with. Similarly, Ms Ashley's evidence was muddled and unclear, particularly her evidence as to whether she knew that no income officer had been present at the eviction, as to whether or not she was aware that AA's possessions might have been left behind in the flat after the eviction, as to whether the keys should have been left for her at all and as to whether she should have realised that she should have visited the property on 24 April 2013 given that the keys were not accompanied by paperwork showing that the flat was empty or still contained possessions.
- In short, the four relevant individuals' inconsistencies and prevarications highlighted their apparent attempts to exculpate themselves rather than to tell the truth.
- Analysis of the eviction evidence. In order to test their evidence, I have considered those parts of it that can be compared to external and credible evidence. The principal objective evidence collected by Mr Matthews that can be used to test the veracity of the evidence of Mr Davis, Ms Okwara and Ms Yusuff are their mobile phone records which, tellingly, had not been seen by them before they had been interviewed save that they had been made available to Mr Davis and Ms Okwara for their respective third and final interview after Mr Matthew had already interviewed them twice. These records and the obviously erroneous evidence about their phone calls given by the four principle witnesses enable a clear picture to be built up about the significant level of collusion and collaboration there was between them that had led to the unlawful manner in which AA was evicted from his flat and had lost all of his possessions.
- The phone records show that 7 critical phone calls emanated from one or other of these three participants in the eviction process between 09.24 and 11.55 on the morning of the eviction. These were:
Mr Davis called Ms Okwara at 9.24 for 19 seconds
Ms Yusuff called Mr Davis at 10.19 for 1 minute 8 seconds
Ms Owkara called Mr Davis at 11.16 for 41 seconds
Ms Okwara called Mr Davis at 11.20 for 15 seconds
Ms Okwara called the bailiff at 11.41 for 45 seconds
Mr Davis called Ms Okwara at 11.42 for 39 seconds
- In addition, I can also use the clear and objective evidence provided to Mr Matthews by Ms Okwara and Mr Davis' line manager Ms Maresch and Ms Ashley's line managers Mr Akinsola and Mr Mansaray to test the evidence of the four principal witnesses who are potentially responsible for AA's eviction and loss of possessions.
- This clear, objective, third party evidence can be contrasted with the muddled, inconsistent and subjective evidence of Mr Davis, Ms Okwara and Ms Yusuff. My starting point is to analyse when the hearing started and was concluded. It is clear from the pattern of phone calls listed above and from the evidence of the carpenter, the bailiff, AA and the evidence of Ms Okwara that the hearing did not start until well after 11.00 and had been completed well before noon. Given the gaps in Ms Okwara's phone calls, that would place the hearing as having taken place between about 11.20 and 11.40 and those records also support the conclusion that it had taken about 20 minutes.
- The principal pieces of evidence which are self-evidently untrue are as follows.
- Mr Davis. There was no coherence or consistency in the evidence given by Mr Davis in his three interviews. That evidence must be read alongside the brief statement that he made following an internal meeting he had had with Ms Okwara and Ms Yusuff on about 31 May 2013. This meeting appears to have been held to enable these three officers to co-ordinate their accounts of the eviction and disposal of AA's possessions that had occurred on 23 April 2013 and in the light of their learning that a Management Inquiry had been, or was about to be, set up to investigate their apparently gross misconduct. Senior management had learnt on about 16 May 2013 that LBS had managed to destroy all of AA's possessions when evicting him as a result of what appeared to be serious failings in the execution of the EP procedures by the officers concerned. Senior management decided to appoint Mr Matthews to investigate those apparent shortcomings soon afterwards. Mr Davis's short self-generated statement is a masterful example of evasion and avoidance. The critical events on 23 April 2013 are dealt with in that statement were as follows:
[AA] had submitting (sic) an appeal
A hearing date was listed on 23rd April 2013 at 10am. This was the same morning as the eviction, again I asked Income Officer Christiana Okwara to attend.
The outcome of the Appeal Hearing was that it was dismissed and the eviction went ahead with London Borough of Southwark carpenter and the court bailiff in attendance."
This evidence is brief to the point of being positively misleading.
- In relation to his evidence to Mr Matthews, he gave clearly untruthful evidence in the first two interviews about the phone calls that he had made and received and when finally confronted with the phone records, he could only explain his call to Ms Okwara at 09.24 with a fatuous suggestion that he had called her to wish her good luck at the forthcoming hearing. He could not, or would not, remember what his other 4 calls had been about.
- Ms Okwara. Ms Okwara's evidence was similar to Mr Davis's evidence. The third interview, when confronted by the phone records set against her earlier evidence, led to a similar memory failure with regard to all five calls that she had been involved in. She also continued to maintain that she had asked in the last call at 11.42 with Mr Davis whether Ms Yusuff had attended the eviction even though it was pointed out to her that it was already clear that she already knew that that was the case given her account of her conversation with the bailiff who, she had stated, had informed her that the eviction had gone ahead so that there was no need for an income officer to attend. Ms Okwara's statement made on or following the meeting with Mr Davis and Ms Yusuff on 31 May 2013 is also positively misleading in its brevity and lack of information as to what actually occurred on 23 April 2013.
- Ms Yusuff. Ms Yusuff's single interview and her brief self-generated statement dated 31 May 2013 are also singularly misleading. The most significant defect is that she denied receiving a call from Mr Davis prior to the eviction or that she had left the vicinity of the flat at about 11.00 because he had told her to leave. In his second interview, Mr Davis made no mention of any call with her until he called her after the eviction to inform her it had taken place a call that Ms Yusuff also maintained had occurred although she claimed she had told him that the keys had been left for Ms Okwara at Harris Street. Thus, neither she nor Mr Davis could remember or provide details of the phone call made by Mr Davis to her at 10.19 that lasted for 68 seconds when, on her account, she was still sitting in her car near the flat and soon after which she left for Harris Street.
- The carpenter. The principle relevant feature of the carpenter's evidence was his remarkable statement that AA had been so disruptive the previous day in court that the judge had ordered his forcible removal and that that had led him and the carpenter to conclude that the eviction had to proceed in a hurry and without an income officer or resident officer present in order to get it over with before AA returned and became aggressive or otherwise made trouble. The carpenter was not a LBS employee but was employed by an outside contractor, Mears, who were frequently used by LBS. It would seem that the carpenter often worked for LBS. He was not in court the day before the eviction and there is no evidence that he had spoken to Ms Okwara or any other LBS officer in the time that had elapsed between the court hearing on 22 April 2013 and his attendance on site on 23 April 2013. In reality, he either made this explanation up to exculpate himself from his serious error in signing off the warrant or he had been told by Ms Okwara to give that excuse if he was asked why the eviction proceeded without a LBS officer being present. He did, however, confirm that the bailiff had spoken to Ms Okwara on the phone after the court hearing was over in order to receive her confirmation that the eviction could go ahead with just the bailiff and himself present.
- The bailiff. The bailiff's evidence was consistent with the actions of both himself and the carpenter at the eviction being taken on Ms Okwara's instructions and with her approval and knowledge. In particular, he stated that the keys were delivered to Harris Street as a result of her instructions.
- Ms Ashley. Ms Ashley's evidence in attempting to explain why she informed the CSO, Ms Okwara and three other officers that there were no storage issues was demonstrably disingenuous. The context in which she sent that email was such that the email would have made no sense if she had actually said "if there are no storage issues". Her reaction to receiving the keys was equally nonsensical from someone who had been a resident officer for over 30 years. She appeared to feign surprise that the keys had been passed to her, her evidence was that the income officer should have passed them straight to Voids. Ms Maresch was particularly critical of Ms Ashley. She was reported as telling Mr Matthews:
"Ms Ashley called me [on about 2 May 2013] to discuss the issue [as to whether it was her or Ms Okwara's fault that AA's possessions had been lost] and tried to implicate Ms Okwara. When keys were delivered to Ms Ashley she should have gone to the property but she claimed that she emailed Ms Okwara to ask what was inside the property and did not get a response. I stated that when Ms Ashley heard nothing from Ms Okwara that didn't mean neither "yes" nor "no", so it was her duty to inspect the property.
Ms Ashley said "OK, thank you" and put down the phone as she did not get the response that she wanted from me."
- Conclusions the eviction. Taken with the evidence of the bailiff and the carpenter and the statements and inconsistencies of the other individuals' evidence, the following conclusions emerge:
(1) Mr Davis called Ms Okwara at 9.24. Ms Okwara was probably still at her desk in Tooley Street. It is inevitable conclusion from all the evidence that the general purpose of this call was to discuss the impending court application in LCC at 10.00 and the eviction that was timed for 10.35. The specific purpose of the call must have been for Mr Davis to give instructions to Ms Okwara and Ms Yusuff as to what each should do that morning and how they should respond to either the dismissal or the granting of AA's stay application since the outcome of that application would have been in doubt. Given that the call lasted for 19 seconds and that only 36 minutes remained before the application was due to start in the near-by LCC building, there could not have been any significant discussion and, instead, Mr Davis must have given instructions to Ms Okwara or confirmed his previous instructions crisply and without scope for discussion.
(2) Ms Yusuff left her location in her car close to AA's flat at about 10.30 as she stated she had done but that change of location must have occurred as a result of the telephone call that Mr Davis made to her at 10.19 which lasted for 1.08 seconds. During that call, Mr Davis must have given instructions for her to go to Harris Street and wait for the delivery of keys to the Harris Street office by the carpenter and as to what she should do with the keys once she had been given them.
(3) The hearing did not start at 10.00 and in fact took place over a 20-minute period between about 11.20 and 11.41. Ms Okwara called Mr Davis from LCC at 11.16, probably to inform him of the delay in the start of AA's application and to take instructions as to what should happen if the conclusion of the hearing was further delayed. She called Mr Davis again at 11.20 for 15 seconds, presumably to tell him that the application had been called on and was about to start.
(4) Ms Okwara called the bailiff at 11.41 and told him that AA's application had been dismissed, that the eviction could go ahead and should go ahead forthwith without an income officer or a resident officer in attendance and that the carpenter should sign the warrant and deliver the warrant and the keys to the customer service officer at Harris Street.
(5) Either just before or just after Ms Okwara's call to the bailiff, the court usher in the court in which AA had made his application called him, as arranged as part of the practice adopted in LCC in cases where an eviction has been held up by a last-minute stay application, to tell him that the stay application had been dismissed and the eviction could go ahead as planned.
(6) Mr Davis called Ms Okwara at 11.42 and Ms Okwara confirmed that the application had been dismissed, that the eviction was in train and that the keys would be taken to Ms Yusuff at the Harris Street offices for handing over to Ms Okwara who would go from LCC to the Harris Street office to collect them from Ms Okwara.
(7) Ms Yusuff called Mr Davis at 11.55 to report that the keys had arrived and to discuss how the keys were to be got to the Voids officer and was told that she should give the keys to Ms Okwara who would pass them to the CSO who in turn would pass them to the Voids officer.
- In summary, therefore, the arrangements were devised and executed by Mr Davis, Ms Okwara, Ms Yusuff, the bailiff and the locksmith acting in concert and in direct and flagrant contravention of the EP and the Goods Storage or Disposal Procedure. Ms Ashley had contributed to these unlawful arrangements in two particular respects. Firstly, she agreed with Ms Okwara prior to the eviction that neither she nor any other resident officer would attend the eviction or would undertake a pre-eviction visit and survey to ascertain what would need to be removed and stored if it had not been removed by AA prior to his eviction. Secondly, she sent an email about 5 hours after the eviction to the CSO at Harris Street which she copied to Ms Okwara and the CSO of Voids and to three other officers which she knew or ought to have known was untrue. This stated that there were no storage issues in AA's flat by which she meant that none of AA's possessions or property remaining in the flat after the eviction needed to be preserved and stored and everything there could, in consequence be disposed of.
(5) Post-eviction cover up
- Ms Okwara's iWorld postings of 23 April 2013. Ms Okwara's initial iWorld postings on 23 April 2013, which can now be seen as her first attempt to cover-up her part in the course of action that led to neither an income officer nor a resident officer being present at the eviction. She stated that the judge had said that the district judge had held at the first hearing that LBS had followed the correct procedure during the eviction and that the judge at the second hearing had held that there was no error in the first decision. She reported that the eviction had gone ahead successfully and had been carried out with the bailiff and carpenter present. She had not been present but the warrant had been signed off. She also reported that the keys had been given to the resident duty officer who had given them to the receptionist to hand over to the Voids team. This series of posting are masterful in the favourable gloss they paint of the eviction and in failing to draw to the attention of the reader of the EP errors that had occurred during the eviction.
- Ms Ashley's "no storage issues" email. Ms Ashley's email of 23 April 2013 was a further step in the cover-up of her and Ms Okwara's unlawful complicity in arranging that no resident officer undertook a pre-eviction inspection or attended the eviction. Having stated that she had not attended the eviction, and, she should have stated in the email that that no further step should be taken by Voids until she had gone to the flat and carried out an inspection of it. She should have inspected the flat as a matter of urgency, prepared the necessary inventory and photographed every room and then belatedly passed that paperwork to Voids. Instead, she attempted to cover up her failure to attend the eviction by suggesting that there were no storage issues and by emailing the CSO with instructions to pass the keys to Voids and copying-in Ms Okwara to that email. Ms Okwara, in turn, forwarded Ms Ashley's email of 23 April 2013 to Mr Davis.
- Mr Davis' "TTI email." An exchange of emails involving Mr Davis, Ms Okwara, Ms Ashley and Mr Davis's colleague Ms Maggie Maresch then occurred which included this remarkable email from Mr Davis which was sent to Ms Okwara and Ms Maresch during the morning of 24 April 2013:
"While I am happy that this tenant lost his appeal at court (1) and the arrangements we had in place beforehand (Christiana [Okwara] attend court to oppose appeal and Lara [Yusuff] to wait at the property until the outcome is revealed(2)) the serious cause for concern is the TTI not being signed(3).
Once the tenant lost the appeal at court and decided just to hand back the keys at Harris Street (rather than be evicted by the bailiff) why did we not inform (sic the words "voids and" appear to be missing) get him to sign a TTI(4). On iWorld there is not even a note stating "tnt came into office and handed in keys etc etc". The problem now is this tenant in 1 month or 2 month time could come back and make a false claim that we illegally evicted him and seek compensation. We have no proof to say otherwise because we got no TTI(5).
I'm working at home tomorrow but I need you both to come to Tooley Street on Friday so we can discuss in person(6). I will book a room and place an appointment in your calendar.
Christiana [Okwara] Bisi will have to cover your cases on Friday
Aggie [Maresch] Please can I seek advice about this matter at some point today."
- The following points can be made about this email:
(1) It is wholly inappropriate for an income officer to be "happy" that a tenant has lost his stay application and has been evicted. This shows that Mr Davis had a personal interest in obtaining AA's eviction. It is particularly revealing of his state of mind that he is happy at what he knows to have been an unlawful eviction and it supports the consideration that this eviction had been successfully engineered for an ulterior and purpose.
(2) Mr Davis knew that Ms Yusuff had never been to the property and had waited in her car until he instructed her to move to Harris Street in order to receive the keys from the carpenter. Furthermore, the statement that Ms Yusuff was to wait at the property "until the outcome (of AA's application) is revealed" is contrary to what he told Mr Matthews at his first interview which was that he had asked Ms Yusuff to attend the eviction in place of Ms Okwara who would be in LCC opposing AA's last-minute application to stay the eviction. This is the first of the passages which appear to be an attempt to mislead and to cover up his and his colleagues wrong-doing.
(3) The passages suggesting AA should have signed a TTI were also intended to mislead. A TTI was only used when a tenant voluntarily surrendered possession having removed all his possessions from the flat. Thus, any relevant officer, on reading this email, would assume that AA had voluntarily left the flat with his possessions and that there had been a failure to obtain a record of that by means of a signed TTI. These passages must therefore have been intended to mislead anyone reading this email. It was not posted onto iWorld but its contents were subsequently passed around the income team and it, and Ms Ashley's email the previous day, led to a number of officers declining to assist AA in his attempts to obtain both reinstatement and a return of his property.
(4) Mr Davis was well aware of the fact that AA had not come into the office, had not surrendered his tenancy without involving the bailiff and could not have signed a TTI since, as Mr Davis knew or ought to have known, his possessions remained in the flat.
(5) This passage appears to be suggesting that Mr Davis and his colleagues should put together a false story to cover up AA's illegal eviction who did indeed subsequently start proceedings of the kind suggested. If Mr Davis or his colleagues had then given evidence to support any false story that had been devised in the proposed cover-up meeting, they would have committed perjury.
(6) This meeting between Mr Davis, Ms Okwara and Ms Maresch was both collusive and conspiratorial since it was clearly intended to discuss how to cover-up the wrongdoing that had occurred on 23 April 2013. A similar cover-up meeting appears to have occurred when Mr Davis, Ms Okwara and Ms Yusuff met on 31 May 2013 just after it had been announced that a full investigation would take place into the destruction of AA's possessions. Following the meeting and self-evidently as a consequence of it, each of the three produced an anodyne and highly misleading account of the eviction which appeared to exculpate all three of them of all responsibility and blame for those unlawful events.
- Confusion as to who should pass the keys to Voids. By the time that the Voids team arrived at AA's flat in the late morning of 24 April 2013, the following assertions about responsibility for passing the keys to Voids had appeared in emails and on iWorld:
(1) Ms Okwara on 23 April 2013 soon after the eviction and her taking possession of the keys. Ms Okwara stated that the resident duty officer Ms Marsh had accepted the keys and had given them to the receptionist to hand them over directly to Voids.
This explanation is to the effect that Ms Marsh had given the keys to the receptionist to pass directly to Voids.
As is clear from the receptionist Ms Scheibner's email sent a few minutes later to Ms Ashley, Ms Okwara had in fact handed the keys to Ms Scheibner with a request to pass them onto Ms Ashley. Ms Marsh had refused to take the keys because there was no accompanying paperwork so that Voids would not accept them from anyone who had not been at the eviction.
(2) Ms Scheibner on 23 April 2013 following her being given the keys by Ms Okwara with a request to pass them to Ms Ashley. "There is no paperwork with the keys, will you let Voids know or should I inform them?"
This shows that in Ms Scheibner's mind it was open for either her or Ms Okwara to pass the keys to Voids
(3) Ms Ashley on 23 April 2013 in an email to Ms Scheibner copied to Ms Okwara, and others. "The income officer should have given the keys to Voids having attached the paperwork because there were "no storage issues".
Ms Ashley's explanation was that Ms Okwara should have passed the keys to Voids.
(4) Mr Davis on 24 April 2013 in an email to Ms Okwara, Ms Yusuff and copied to Ms Maresch. "AA should have been informed to sign a TTI and a posting put on iWorld to the effect that "the tenant came into office and handed in keys".
The clear implication of this email was that Mr Davis was stating that the keys could be handed straight to Voids bypassing the resident officer because there were no storage issues.
(5) Mr Davis on 24 April 2013 on iWorld. "The Income Team has been instructed by the previous Central Operations Manager that following all evictions for rent arrears we should always return keys to Resident Officer not the Void Team regardless of items left in the property"
This email was prompted by a response from Ms Maresch to Mr Davis' earlier email that implied that where a TTI was signed, the keys need not pass through the resident officer's hands en route to Voids.
- This bewildering and obvious confusion about the route the keys should have taken in order to end up in Voids' hands arose from the way that the plans for the unlawful eviction had changed.
(1) Initially, it appears that Mr Davis and Ms Okwara had agreed that she would attend the eviction and that Ms Ashley had agreed that she would not attend it and that no other resident officer would be involved in it either.
(2) It then turned out the evening before the eviction that RG's stay application was to be heard at 10.00 am and that the eviction was due at 10.35. Since the eviction was a DIY eviction, Ms Okwara had to attend LCC and she and Mr Davis arranged for Ms Yusuff to cover for Ms Okwara, it would appear initially as a reserve in case Ms Okwara could not get from court to the flat in time.
(3) A further change of plan occurred when AA's hearing did not start until 11.20 and it was realised by Ms Okwara that the bailiff might have to put off the eviction at 10.35 due to his other evictions booked for that morning.
(4) This led to Mr Davis instructing Ms Yusuff to go to Harris Street to receive the keys from the carpenter and hand them to Ms Okwara when she arrived and to Ms Okwara instructing the bailiff to proceed without either an income officer or a resident officer and for the carpenter to sign the warrant and accept the keys and take them to Harris Street to give to Ms Yusuff whilst she went straight to Harris Street from LCC, collected the keys from Ms Yusuff and gave them to the duty resident officer to pass to Voids.
(5) Finally, another change of plan was necessitated by the duty resident officer not being prepared to accept the keys but, instead, insisting that they should be sent to Ms Ashley who had not expected to be involved at all and, on being notified that she should deal with the keys, arranged for them to be sent to Voids without her handling them and posting a justification for that on iWorld to the effect that there were no storage issues.
(6) Mr Davis, for his part, sent out a different justification to cover-up his and his fellow conspirators' activities to the effect that the eviction had been a TTI eviction (even though that was a contradiction in terms) so that there was no paperwork to go with the keys other than the absent TTI, no involvement of the resident officer and no possessions to take to storage.
- Mr Davis' meeting with Ms Okwara and Ms Yusuff on 26 April 2013. It can be seen from Mr Davis' email sent to Ms Okwara and Ms Yusuff on 24 April 2013 arrange for the three to meet on Friday 26 April 2013 in a meeting room in Tooley Street "so we can discuss in person" the events leading up to his sending his "TTI" email was called by Mr Davis to enable the three conspirators to agree upon a "party line" which might keep each of them out of trouble. In other words, the three officers directly involved in AA's eviction needed to discuss and deal with the emerging details of the unlawful eviction and AA's possible response to that eviction. The meeting presumably took place but there is no evidence of what was discussed or agreed by the three participants. What is now evident is that none of three conspirators participated in any recorded way in any subsequent court hearing, inter-departmental discussions about the eviction and possessions issues or in any other action concerning AA.
- Absence of Housing File. It is very telling that the contents of AA's Housing File since the autumn of 2010 have not been produced and appear to have been mislaid deliberately. This absence was first evident in the failure of the Income team in general and Ms Okwara in particular to pass any relevant papers to the Complex Cases Team who took over AA's various applications on Monday 29 April 2013 and Tuesday 30 April and who were not briefed or passed any relevant papers by the Income team in time to respond to AA's re-entry interim injunction application heard in the High Court on 1 May or the full application in LCC that was heard on 14 May 2013
- Cover-up general. The end result was a cover-up of the fact that AA had been evicted with no resident officer or income officer in attendance and with the confusion that AA's resident officer had posted on iWorld the statement that there were no storage issues in relation to his possessions which remained in the flat so that they could be removed and disposed of and Mr Davis informing his department in an email that the possessions had been removed by AA but, regrettably, he had not been asked to sign a TTI. Meanwhile, Ms Ashley had asked Harris Street reception to pass the keys directly to Voids. In this circle of confusion caused by the relevant officers trying to cover-up their unlawful handling of the eviction, none of the officers directly involved, being Mr Davis, Ms Okwara, Ms Ashley, Ms Maresch, Ms Marsh or Ms Scheibner, made any attempt to ensure that AA's possessions were saved, that his eviction had been lawfully carried out or that the legal team that took over AA's court attempts to re-enter his flat and regain his possessions were informed of the unlawful nature of AA's eviction or of the failure to ensure that his possessions were not destroyed. It is clear that all these officers knew, or had turned a blind eye to the fact that AA had been unlawfully evicted and that his possessions were still in the flat despite his having been evicted and that they were about to be removed and destroyed.
- In evidence to Mr Matthews, it was suggested that it was first fully realised within the Incomes and Resident Officers teams that AA had lost his possessions when enquiries were made of the Voids team on 2 May 2013 following a court hearing earlier in the day at which AA sought access to his possessions. Ms Ashley was one of the first to learn that AA's possessions had been destroyed and Ms Okwara also appears to have learnt about it on that day. Neither had the decency to raise this with their colleagues. Had the alarm been raised on 2 May 2013, an urgent and immediate investigation would have revealed that AA had been evicted from his tenancy unlawfully and it would still have been possible to restore it to him since it would not have been relet by that date. He would not have recovered his possessions but, with the assistance of a loss adjuster, he could have been adequately and rapidly compensated for them by LBS. In reality, however, those directly involved in AA's eviction were aware from the moment the eviction took place that the eviction had not been lawfully carried out and that his possessions remained in the flat and would be likely to be removed and destroyed and yet none of them did anything about this.
(6) AA's attempts to regain his flat and possessions
- Introduction. AA made repeated and despairing efforts to regain both possession of his flat and his possessions. These attempts may be summarised in this way.
- Contact with Ms Ashley and Ms Okwara. AA should have had the advantage of a face to face meeting with Ms Okwara and, separately, with Ms Ashley in separate pre-eviction meetings at the flat that each should have had with him. Each would have provided advice as to the action he could and should take in order to avoid the eviction that he was threatened with. Furthermore, if he had received the EVRA letter dated 15 April 2013 and the pre-hearing letter dated 18 April 2013, he would have been advised that he should seek to pay off the arrears that founded the application for the warrant and that his income officer should be approached to discuss and, if possible, agree to a solution that avoided eviction. AA was not seen by either officer and, if he did receive the two letters, he received them so soon before the threatened eviction that he would have been unable to do anything about them given that he was acting in person and was desperately shortage of time to arrange for his stay application before the bailiff's eviction visit took place.
- In the days following his eviction, he attempted to contact Ms Okwara and Ms Ashley on numerous occasions. On each occasion however, each of them either put the phone down without speaking to him or did not answer the phone. This is a remarkable omission, particularly in the case of Ms Ashley. She was AA's resident officer who had agreed with Ms Okwara not to attend the eviction. However, she still retained pastoral obligations which extended to advising him how he could belatedly rescue his tenancy, retrieve his possessions, seek alternative accommodation since he was street homeless and obtain temporary financial assistance given that he had no access to any funds. Had she seen AA in the days after the eviction, the full extent of the abuse of process that had occurred would have been revealed to her and she would have had a duty to bring such abuse to the attention of Mr Hilder and other senior managers in order to avert the catastrophe that befell AA and to provide him with a fair opportunity of recovering his flat and possessions and obtaining temporary emergency assistance to avert his homeless and penniless existence.
- Harris Street, Queen's Road, Tooley Street and Peckham One Stop Shop. AA went into LBS's offices at Harris Street, Queen's Road, Tooley Street and to the Peckham One Stop Shop repeatedly but to no avail. Officially, LBS tenants could only approach their landlord by calling in at the One Stop Shop but in AA's case, the receptionist or other officer present when he called referred him to his income or resident officer or their team. His evidence was that he found himself being referred in a circle to and from these various offices and officers, all to no avail.
- Gerri Scott and Barbara Asaam. AA attempted to speak to the Strategic Director of Housing, Ms Gerri Scott by contacting her PA, Ms Barbara Asaam who sent the following email to Ms Maresch and one of Ms Maresch's colleagues Mr Mansaray on 2 May 2013:
"[AA] telephoned Gerri's line a moment ago demanding to meet with Gerri to tell her about his problem.
He states that he was evicted on 23 April due to rent arrears and his belongings still in the building and he has been sleeping rough. He went to court yesterday and the judge filed in favour of the council.
He says his rent arrears is £2,500 and he has paid off £500.
I have copied in Ramautu as she may know where his belongings have been stored.
Can you please contact him to advise what can be done for him, if anything."
- Nothing was done for him and no LBS officer attempted to contact him as a result of this approach to Ms Scott and Ms Maresch. Instead, Ms Maresch replied to Ms Asaam as follows:
"I suspect that [AA] contacted Gerri as he's not got anywhere with us or the judges. He simply wants Gerri to intervene as the highest ranking manager in Housing. Its not his possessions he's really after, he wants to be let back into the flat.
We evicted [AA] after a very long and protruded battle. He is a persistent and wilful non-payer and had numerous chances to put things right over the years. To top this, [AA] has also been in the past abusing and threatening to both Southwark and court staff (including judges!), so we certainly don't want him back in any of our neighbourhoods!"
- Income and resident officers' "party line". There was in fact no evidence that AA had been abusive or threatening or had displayed inappropriate behaviour of any kind at any time. Nothing had been posted or flagged on iWorld or in his Housing File to that effect, no instance of such behaviour was referred to in any of the disclosed documents save for the obviously erroneous and untruthful suggestion by the carpenter who, although he had not been in court, had informed Mr Matthews that AA had been abusive at the hearing on 22 April 2013 to such an extent that the judge had ordered his forceful removal from court. Ms Okwara, who had been present, expressly disclaimed this suggestion in her interview with Mr Matthews and the carpenter had either made it up or had been fed this misinformation by an unidentified third party. Ms Maresch's email is also misleading in referring to a very long and protruded (i.e. protracted) battle to evict AA. In reality, the "battle" had started on 18 April 2013 with Ms Okwara's somewhat diffident visit to AA's flat and had ended with AA's unlawful eviction from the flat on 23 April 2013 whilst he was absent in court.
- Ms Maresch was, in truth, merely repeating the Income and Resident Officers' party line that AA's behaviour had been repeatedly unacceptable over a long period of time. This is shown by this exchange between Mr Matthews and Mr Ola Akinsola, who was Ms Ashley's line manager, during Mr Matthews' investigation:
"Mr Matthews: When did you get the understanding that the chap was volatile?
Mr Akinsola: Conversations in the office from Resident Officers who have known him over the years, through previous rent/evictions and court cases, I understand that he is a serial litigant.
Mr Matthews: Where there any flags?
Mr Akinsola: I can't really say.
Mr Matthews: Would you expect there to be flags and markers, if he was volatile?
Mr Akinsola: Yes."
- It is also important to realise that even if AA had been flagged up as being volatile, that had nothing to do with whether or not he should be evicted for non-payment of rent shortfall yet the references to this suggested volatility appear to have been put forward as some sort of justification or excuse for not ensuring that his eviction and the removed of his possessions from the flat were both lawfully executed.
- Local councillors. AA also sought to invoke the assistance of both of his LBS ward councillors. Neither was able to penetrate the wall of silence that had been erected by the relevant officers within the Housing Department at LBS. He first saw Councillor Soane at one of her ward surgeries. Councillor Soane texted and wrote to relevant personnel in the Housing Deartment to no avail. He then saw Councillor Brown soon afterwards and he, too, was sympathetic and wrote to the Housing Department, again to no avail. It is, to say the least, surprising that neither Councillor's letters and texts of concern appear to have been answered, investigated or followed up.
- Police involvement. AA asked the police at Peckham Police Station to intervene to get his possessions back. Their enquiries also resulted in LBS fobbing of enquiries about his eviction and loss of possessions. A duty officer at that Police Station contacted Ms Asaam in her capacity as PA to the Strategic Director of Housing who became involved briefly in AA's struggles to obtain re-entry and the return of his possessions. Ms Asaam in turn contacted Mr Akinsola on 16 May 2013 and informed him that she had just taken a call from Peckham Police Station to the effect that AA had turned up complaining that he had been evicted for rent arrears and was being prevented from collecting his belongings and would like to make arrangements for this to happen. Mr Akinsola responded to Ms Asaam to the effect that he would arrange for Ms Ashley to arrange AA's visit to his flat since she had access to the keys but added:
"She may require police escort as I understand the man is quite volatile.
He was there repeating the line, unsupported by any evidence, that AA was volatile and potentially dangerous to those from LBS having contact with him about his flat, eviction or possessions.
- Ms Ashley responded to Mr Akinsola's email, which she had been copied in on, with this highlighted and untruthful statement at the end of it:
"Voids just confirm (sic) to me that they have the keys and whatever was left in the property has been disposed of. There are pictures from Voids re the state of the property i.e. the occupier took what was needed and the rest was left in a real mess."
She was well aware that AA had not taken any of his possessions from the flat, had not abandoned any of his possessions in the property and the flat had not been left in a real mess. Indeed, it had been left in its normal state when AA had gone out on the morning of the eviction to go to court.
- Rebuffed by Mr Akinsola despite having proof of funds to clear the arrears. These latter contacts were particularly unsatisfactory for AA because he had succeeded, amongst all other efforts, in raising a sum to cover the entire rent arrears from his contacts in the Sudan. AA saw Mr Akinsola on three occasions and was told by Mr Akinsola when he saw him on the second of these occasions on 17 May 2013 that all his possessions had been removed from the flat and destroyed. This was the first time that he had been told of this destruction although it had occurred on about 25 April 2013 and had been known about by relevant officers from that time onwards. Mr Akinsola also told AA that if he was able to raise enough money to discharge his arrears and then paid it to LBS for that purpose, he would stand a good chance of getting his tenancy back. AA obtained from the Sudan payment of a sum sufficient to clear his entire rent arrears and accumulated court costs and produced evidence to Mr Akinsola on his return to see him on 20 May 2013 that that sum was sitting in an account in AA's name awaiting transfer to LBS. Mr Akinsola then asked AA what he wanted as an outcome to his complaints and AA suggested:
(1) Somewhere to live, preferably his old flat, on condition that he cleared the entire debt on his rent account; and
(2) The return of all his possessions.
- Both these conditions appeared reasonable, the first was capable of being fulfilled and the second was only unachievable because, as LBS well knew, it had destroyed his possessions unlawfully.
- Mr Akinsola told AA that his complaints that he had been unlawfully evicted and had lost all his possessions and was street homeless without money, passport, credit cards or means of support all of which appeared to be correct were being investigated by a senior manager who was not identified and that LBS would come back to him as soon as Mr Akinsola had a response to his suggested outcome.
- On 24 May 2013, AA went to see Mr Akinsola for the third time and was presented by him with a letter which informed AA that this possessions had been disposed of. The letter stated:
"Please accept our apologies for any inconvenience this may be causing."
This was the only apology that AA ever received from LBS who have taken no subsequent action to investigate AA's needs or to offer him assistance or to take steps to investigate whether his eviction was lawfully carried out or to reinstate him in his flat or to provide practical assistance from the resident officers or to pay without proceeding having been started recompense for destroying his property or to ameliorate his street homelessness or to help him to replace his possessions or to re-accommodate him.
- Instead, Mr Akinsola informed AA in the letter that the matter was still being investigated by a senior manager and that Mr Akinsola was happy to keep him informed of progress once he received an update which never came.
- Homelessness assistance. AA sought homelessness assistance from LBS on two occasions merely to be told that he was ineligible for this since he was both intentionally homeless and not in priority need. No-one was prepared to investigate his case, consider him for exceptional assistance given that he had been made homeless unlawfully or to offer him practical advice and assistance of any kind.
- Mr Hilder's' lack of concern. Mr Hilder first heard about the destruction of AA's possessions on about 16 May 2013 and, on hearing about it, initiated Mr Matthews' investigation. Surprisingly, he did nothing about AA's obvious plight. He did not instruct any of his officers to arrange to see AA or to investigate whether he had been evicted unlawfully or to consider providing emergency financial assistance and accommodation in the light of the destruction of his possessions.
- When giving evidence, Mr Hilder had no genuine concern for AA and gave the impression that he was content to rest on the payment of £6,190 that had already been paid to AA as being sufficient to compensate AA adequately for the loss of all his possessions and for being made street homeless. He clearly had not studied the Matthews Report and appeared to continue to think that the eviction had been lawful and that the loss of his possessions had arisen from an unfortunate accident which could be adequately compensated for by the interim payment of £6,190. In short, he appeared to display a remarkable callousness for someone who had been unlawfully evicted and who had also had all his possessions destroyed as a result of a collusive serious of unlawful actions by a significant number of officers within his Department.
(7) Applications and orders
- Application on 1 May 2013. The first application that needs to be considered was an interim application heard in the High Court on 1 May 2013. AA made an application to the interim applications judge which was issued on 25 April 2013. In it, AA applied for
"Reentry into the property known as [AA's flat], London, SE15 6JD."
It was accompanied by a short statement stating that he had been locked out of his flat, had no access to his possessions and nothing to live on. This application was not issued in or as part of an action in the High Court and had been issued in an emergency, being unsupported by a claim form or an originating summons. Such an emergency application is issued pursuant to CPR 25.2(3) which provides that where such an application is issued before proceedings are started, the court must give directions requiring a claim to be commenced where it grants an interim remedy. Where such an application is dismissed, it is open to the applicant to commence a claim seeking the same relief by issuing a claim form to seek that relief since the dismissal of the interim application is no more than a refusal to provide interim relief. This was a course adopted by AA in issuing the claim form in this action on 29 May 2013.
- The application was dismissed by Thirlwell J. The judge was not provided with any papers save the application notice and at an early stage in the application, counsel instructed on behalf of the LBS intervened in AA's submissions at the invitation of the judge and submitted on instructions that the application was an application for the hearing of a re-entry application and that it was in consequence an abuse of process since the same application was listed for hearing in LCC on 8 May 2013. In fact, the application was for an interim injunction requiring LBS to restore AA to his flat pending the hearing and determination of his re-entry application and to return his possessions to him which he assumed were still in the flat. The judge dismissed the application. No grounds were provided in the order to explain the basis of the dismissal but it would seem that the basis was that AA had also issued a the same application in the LCC which was due for hearing on 8 May 2013 and that, in those circumstances, it was inappropriate to consider the application for interim injunctive relief. This application was, therefore not heard for those procedural reasons.
- The judge did, however, make this order by consent:
"Upon it being agreed that the [LBS] will allow [AA] access to his former property to collect his belongings at a mutually convenient time to be arranged in advance
This agreed recital to the order, and one which the dismissal of the application was based, was offered by counsel on instructions. Those instructing counsel informed him that AA's possessions were still in the flat although it had been known to Ms Okwara, Mr Davis and Ms Ashley prior to the hearing that AA's possessions were no longer in the flat and that they had probably been disposed of. This knowledge is demonstrated by the fact that all three officers were aware that the eviction had gone ahead without an income or a resident officer being present, that AA had not had an opportunity to remove his possessions from the flat given the shortage of notice he had had and the lack of any pre-eviction visit and that Voids had been informed by Ms Ashley that there were no storage issues. These experienced officers must have known, therefore, that his possessions had been removed and taken to a waste disposal facility. Furthermore, although being asked by the Complex Cases Team to whom this application had been referred for full details of the case, no papers were sent through and neither Mr Davis nor Ms Okwara attended the hearing or briefed the team representing LBS although it would have normally been regarded as imperative that an officer with personal knowledge of the case briefed the team before the hearing and attended the hearing itself.
- Application on 3 May 2013. The second application was heard on 3 May 2013 in LCC. AA had issued an identical application in the LCC dated 24 April 2013 and although it had originally been listed for hearing on 8 May 2013, LCC brought the hearing date forward at AA's request following the dismissal of his application for an interim injunction had been dismissed on 1 May 2013. LBS were informed by LCC of the changed date but no-one attended to represent it at the hearing. AA's application was not supported by any other documents and the Recorder hearing the application refused it without hearing any argument on the grounds that it was procedurally irregular since no appropriate evidence had been served in support of it. Thus, the application was not heard for procedural reasons.
- Application on 14 May 2013. The third application was heard on 14 May 2013, also in LCC. AA issued an application in the LCC dated 10 May 2013. In it, he sought orders as follows:
(1) To set aside the original possession order and to suspend the executed warrant because it was obtained by:
(ii) abuse of the court process,
(iii) fraud to get the tenant out of the property, and
(iv) malicious and persistent wrongdoing on the part of the local authority.
(2) The rent arrears were relatively small compared to any previous arrears and there was no evidence that the tenant was not willing to enter into agreement with the council to pay the arrears.
- AA again appeared in person and lodged a witness statement and LBS attended the hearing by counsel but lodged no evidence in opposition. No note of the Recorder's judgment was taken and no transcript of it has been obtained. The order provided these reasons in the recitals for the dismissal of the application by way of explanation that it should be dismissed because the court had no jurisdiction to hear it:
"Upon [LBS] undertaking to the court, through counsel, on the instructions of the rent income officer who attends today, that in the event that [AA's] possessions remain in the custody or control of the [LBS], [LBS] will not dispose of the same for a period of 21 days from today (i.e. before 4 June 2013) and will make the same available for collection by [AA] before then if he so requests at a time which is mutually convenient to the parties;
(1) And upon the record showing that on 3 May 2013 this court dismissed [AA's] application for re-entry, the notice of application being dated 24 April 2013;
(2) And upon the Court being informed that [AA] made an application to the High Court, the notice of application being dated 25 April 2013, for re-entry, and the application was dismissed on 1 May 2013;
(3) And upon reading the witness statement of [AA] dated 10 May 2013 (signed by him in Court today), and determining that such evidence could reasonably have been put before the Court in the two previous applications;
It is ordered that:
1) The application be dismissed, the Court having no jurisdiction to hear the same;
2) [Costs order]
3) [Permission to appeal refused]."
- The application sought re-entry, a form of relief and a cause of action that is not available as such in the County Court or the High Court in relation to a secure tenancy. Mr Rutledge QC accepted that AA, in applying for "re-entry", was in reality making a compendious application under section 85(2) of the HA for an order to stay or suspend the execution of the possession order or to postpone the date for possession on such conditions for the payment by AA of arrears of rent and, if and when the conditions were complied with, the discharge or rescission of the order for possession. However, that section only applies to an application that is made before the warrant for possession has been executed. In those circumstances, the court had no jurisdiction, as it found, to hear the application since the warrant had been executed, albeit unknown to the court, unlawfully.
- In any event, the court appears to have been misinformed about the previous history of AA's case. Firstly, the High Court had only dismissed AA's application on the grounds that the same application had also been issued in LCC and was due for a hearing very shortly after the hearing in the High Court. Thus, the High Court application, which was an application for interim relief pending the issue of a claim form and the hearing of the claim in the High Court, was dismissed on jurisdictional grounds without being heard. Secondly, the application in LCC on 3 May 2013 was dismissed on procedural grounds without being heard because no papers or evidence was before the court and it appeared to the judge on that occasion that LBS had not been served with any evidence, was not aware of the hearing and was not represented in court. Thirdly, LCC was not informed of the fact that the warrant had been issued without LBS having first applied to the court for permission to issue it as required by County Court Rules, Order 26r5(1)(a). The warrant had, therefore, been issued in abuse of process. Fourthly, it had been known to LBS since a date several days prior to 1 May 2013 that AA's possessions had been removed from the flat on about 25 April 2013 and had been destroyed soon afterwards. The income officer in court with counsel who was not Ms Okwara knew, or should have known, that AA's possessions had been destroyed but failed to instruct counsel of that fact and permitted a meaningless undertaking to be provided to the court.
- Thus, in summary, had the court been made aware of the unlawful destruction of AA's possessions in addition to the abuse of process that had occurred both prior to and when the warrant had been issued and executed, it would or should have entertained an application to set aside the warrant and order the reinstatement of AA into his flat.
- Issue of the claim form. AA then issued the claim form in this action. The brief details of the claim were stated to be:
"On the 23 April 2013 some criminals, public , at the Lambeth County Court DJ Worthington and J Blunden and others conspired with criminal elements of Southwark Council to have me murder then rob me of my personal belongings. They achieved this by way of evicted me from property known [AA's flat]. On 1 May 2013 and 14/15 may 2013 there were two separate Court Orders which ordered the Council to return my personal belongings but they refused to do so up to date. I have been in contact with them almost daily but they claimed that they had not been able to locate my personal belonging which completely disrupted my education, caused too much distress, anxiety and robbed me of my dignity and pride."
- If the names of the two judges referred to in those details are removed since there is no evidence that they did anything other than correctly decide the two applications on 22 and 23 April 2013 on the materials placed before them the claim as set out in the claim form remained and still remains the claim AA contends that he is bringing. It is true that he is making a civil claim so that the references to "murder", "rob" and "criminal" are misplaced save as colourful hyperbole. However, what occurred certainly appears to have amounted to a civil conspiracy and might even have amounted to a criminal conspiracy so that, improbable as it would have seemed to someone who had not read Mr Matthews' investigation report or the contents of AA's Housing File, the claim form was putting forward a viable and non-abusive claim.
- The particulars of claim referred to the eviction that had occurred and alleged that the eviction had been executed with a warrant which was contrary to law since it had been obtained without LBS applying for the warrant to be issued. The particulars then set out the details of the special damages being claimed, being the replacement value of such items of property as the claimant could readily particularise and then claimed special damages for each item particularised and general damages. The overall sum in special and general damages claimed was £2,400,150.
- Thus, a careful reading of the claim form and particulars of claim, when read against the factual background I have now set out, shows that AA was claiming damages for a conspiracy that had caused him to be unlawfully evicted from his tenancy and to have had all his worldly goods unlawfully removed from his possession and destroyed and that his damages were to be quantified as special damages calculated on a replacement value basis and as general damages with a ceiling of £2.4m.
- LBS in its defence pleaded to the claim form and particulars together and asserted, correctly that AA's Particulars of Claim together with the brief details of claim contained in the Claim Form taken together comprised AA's statement of case. The claim was denied save as admitted in the defence. Paragraph 4 specifically pleaded that general allegations of conspiracy to harm or kill AA were strenuously denied, that there was no evidence whatsoever to suggest malevolent intention on behalf of LBS and that such allegations
are absurd and without factual foundation and that the case on conspiracy fails to disclose any reasonable cause of action against the LBS and should be struck out."
- The defence specifically denied that permission from the court was required to issue the warrant and that the six-year time limit ran from the date of the order fixing a date for possession, namely 1 July 2008. It also denied that LBS was doing anything other than acting in compliance with its duty to manage its housing stock effectively in obtaining and executing a possession order against AA and that AA had suffered oppression in the course of the warrant of possession being executed. It also asserted that the Court's and LBS's conduct had already been scrutinised in the course of the warrant being executed and that in the application for re-entry heard on 1 May 2013, the Court had found that all parties had acted entirely properly and lawfully.
- The defence then pleaded to each item of special loss claimed. This part of the defence is prefaced with this admission:
"7. It is admitted that at some point after the warrant was executed but before the re-entry hearing on 1 May 2013 [LBS] unlawfully disposed of [AA's] personal belongings. The precise circumstances of the disposal of [AA's] belongings are currently the subject of an internal investigation and further details will be given in evidence.
8. It is admitted that, following [LBS's] procedures and statutory duties, [AA's] belongings should have been inventoried and placed in secure storage after the warrant was executed. In defiance of those duties and procedures [AA's] belongings were disposed of during the voids process that prepares the property to be re-let to new tenants."
- Application heard on 5 June 2013. Between the date on which the claim form had been issued and that on which the defence had been served, an application was heard by Stuart-Smith J in the interim applications court on 5 June 2013. The application was made by AA without first issuing an application notice and it is not clear what relief he was seeking. It would appear that he was seeking an interim order for the return of his property and that the application was in the nature of an application for an interim mandatory injunction or an interim order for delivery up of goods pursuant to section 4 of the TIGA 1977. The application and the order made could not be taken to have cut down or reduced the scope or ambit of AA's statement of case, it was merely seeking an interim order in relation to one part of that pleaded case whilst leaving all other parts open for determination at the trial whenever that subsequently took place.
- LBS was represented by counsel and, again, it submitted no witness statement in support of its response to AA's application. The order that was made stated:
"And upon [LBS] accepting and admitting by counsel that it had unlawfully disposed of [AA's] possessions that were in the flat at [AA's flat] at the time that [LBS] obtained possession pursuant to the order of Lambeth County Court
It is ordered:-
"1. [AA] shall by 4.00pm on 12 June 2013 serve on the claimant and file with the court a list itemising all of the possessions which he says were in the flat and are now lost and the value of each item.
- [LBS] shall by 4.00pm on 17 June 2013 serve on [AA] and file with the Court a response to his itemised list in the form of a defence stating in respect of each item (i) whether [LBS] agrees that it was in the flat and has been disposed of by the [LBS] and (ii) whether [AA's] valuation of the item is agreed or, if not, what value [LBS] says should be attributed to the item, treating [AA's] list as if it were a statement of case.
- The case shall be listed before a Master for 45 minutes on the first available date after 17 June 2013 for further directions including in relation to the issues of summary judgment and interim payment."
- It is clear that that order was made because the court had been informed by counsel that AA's possessions had been destroyed although nothing in writing to that effect was before the court. The court was issuing consequential directions in relation to AA's claim for special damages for the individual items that had been specifically pleaded. The order was not dealing with, let alone cutting out or excluding from the statement of case, any claim for general damages for either wrongful eviction or destruction of possessions and it was referring to the Master for further directions the entire claim as well as directing that a summary judgment and/or an interim payment application should be heard for that part of the claim that was made for wrongful interference with AA's possessions under the TIGA. Any other claim based on other causes of action or heads of damage or for unlawful possession remained in play at the trial but not when the summary judgment or interim payment applications were heard.
- It follows that the direction that AA should provide a list of all the possessions which AA said were in the flat was not confining or cutting down the claims to that list but was merely giving procedural directions for the particularisation of the specific claim that was to be the subject of a summary judgment or interim payment application whilst leaving all other claims in play.
- LBS's pleaded admission. AA issued an application dated 20 June 2013 which claimed the following relief:
"Upon the admission of [LBS] before the High Court Judge, [AA] is asking the Court to enter the summary judgment and full assessment of the damages."
The admission that was referred to had been made orally by LBS's counsel at the hearing of the application dealt with on 5 June 2013 and had been repeated in LBS's defence served on about 17 June 2013 n these terms:
"7. It is admitted that at some point after the warrant was executed but before the re-entry hearing on 1 May 2013 [LBS] unlawfully disposed of [AA's] personal belongings. The precise circumstances of the disposal of [AA's] belongings are currently the subject of an internal investigation and further details will be given in evidence.
8. It is admitted that, following [LBS's] procedures and statutory duties, [AA's] belongings should have been inventoried and placed in secure storage after the warrant was executed. In defiance of those duties and procedures [AA's] belongings were disposed of during the voids process that prepares the property to be re-let to new tenants."
- It is important to take account of the nature and scope of that admission. CPR 14.1(1) provides that a party may admit the truth of the whole or any part of another party's case. The admissions pleaded by LBS were limited to the following:
(1) AA's personal belongings were disposed of unlawfully.
(2) AA's personal belongings should have been but were not inventoried and placed in secure storage.
- The pleading makes it clear that the manner of disposal was not admitted and particulars would not be given until an internal investigation into the circumstances leading to that disposal had been concluded at which point such details would be provided that would be based on the report that would be produced. Thus, the admission amounts to no more than an acceptance that some of AA's possessions had been unlawfully disposed of, and therefore had been disposed of in circumstances that at the very least amounted to an entitled to compensation under the TIGA, but the nature, extent, recoverable loss, heads, types and measure of damages flowing from that interference and any cause of action save as provided for by the Act remained to be established at the trial.
- First hearing before the Master on 18 July 2013. Thus, the Master had to deal with directions in relation to the whole claim and a summary judgment and interim payment application in relation to the special damages part of the claim. The Master directed that there should be a hearing on 18 July 2013 at which AA's application would be considered and case management directions would be given if appropriate. At that hearing, the Master entered judgment for damages to be assessed in respect of LBS's admitted unlawful disposal of AA's goods as recited in the order made by Stuart-Smith J dated 5 June 2013. It also ordered an interim payment of £6,190.00. The balance of the application and a consideration of the pleadings would be adjourned to a hearing on 24 July 2013.
- Second hearing before the Master on 24 July 2013. Prior to the adjourned hearing, LBS issued an application which sought permission to amend its defence, a response from AA to its request for particulars and an order striking out all references in the claim form and/or particular of claim to conspiracy as disclosing no reasonable cause of action and/or lacking specificity. The Master made a detailed procedural order at the hearing. This order granted LBS permission to file an amended defence and directed AA to answer the request for particulars. It provided for standard disclosure by list, exchange of witness statements and the provision for one expert from each party to value AA's belongings and set down for trial the assessment of damages.
- The order then provided as follows:
"9. The assessment of damages shall take place between 11th November 2013 and 28th February 2014 ("the trial window"), with a time estimate of two to three days.
10. Each party shall file and serve a completed pre-trial check list as directed by the Clerk of the Lists and there be a Pre-Trial Review on a date to be arranged by the Clerk of the Lists with a time estimate of 11/2 2 hours."
- The Master's order expressly adjourned the striking out application in relation to AA's principal claim for conspiracy and that application was never restored or determined. It follows that both his discovery and witness statement orders extended to all claims for conspiracy and for all recoverable heads of special and general damages. Thus, the assessment of damages trial directed to be set down extended to all claims for general damages and within those claims was a claim for damages for conspiracy. There was a potential lacuna in the orders given since LBS had not admitted that any conspiracy had occurred and had denied that the eviction was unlawful. Strictly speaking, therefore, the assessment of damages provided for in the order related only to the assessment of special damages flowing from AA's claim for loss of possessions under the causes of action covered by the TIGA and the trial that had been set down covered that assessment and a full trial of all matters concerned with general damages. Furthermore, the order does not deal expressly with the other claims not covered by the TIGA claim for special damages.
- Preparations for trial. LBS did not provide any significant disclosure relating to the conspiracy claim, did not serve any witness statements concerned with that allegation and did not provide an expert's report relating to its special damages defence, relying instead on prices obtained from a catalogue by Mr Hildred, valuations that were inadmissible since the Master had directed that valuation evidence should be given by an expert. That ruled out factual hearsay or second-hand evidence given by a witness of fact. Similarly, AA's valuations were inadmissible for the same reasons.
- Of particular significance was the failure by LBS to serve by way of disclosure Mr Matthews' investigation report. It was dated and provided to LBS on 17 August 2013. Disciplinary hearing involving Mr Davis, Ms Okwara, Miss Ashley and Ms Yusuff were heard in October and November 2013 and the internal hearing informed those officers of its decision on 30 October 2013 in Mr Davis' case, 8 November 2013 in Ms Yusuff's case and 15 November 2013 in Ms Ashley and Ms Okwara's cases. No notices of appeal were served, as required under the relevant rules, within 2 weeks of the respective dates of these decision letters.
- LBS did not serve or disclose copies of the Matthews investigation as it had stated it would and did not inform AA or the Court that he had reported. The contents of the report and the findings reached were clearly of great significance to AA's claims and, as this judgment has demonstrated, the findings and its supporting evidence are highly material, clearly disclosable and greatly detrimental to LBS's defence to both the unlawful eviction and unlawful destruction of property claims and to AA's causes of action based on conspiracy. When the disclosure of this report was raised by me at the trial, LBS's initial responses were that it was not relevant and that its disclosure had been withheld on the additional ground that it would prejudice the officers' conduct of their cases before the disciplinary hearing and any possible appeal. Neither of these justifications for withholding the report stand scrutiny and, indeed, I am driven to the conclusion that the report was withheld because its contents were so damning of and detrimental to LBS's defences.
- It is clear that LBS were, until a late stage in its preparations, planning and preparing for a defence that included a defence to the conspiracy claims relating to both the unlawful eviction and unlawful destruction of goods. As already recounted, Mr Hilder asked Ms Okwara by way of an iWorld entry dated 11 October 2013 for answers to two significant questions relating to the apparent delay in her informing AA of the date of the intended execution of the warrant. He stated that he needed her explanation for the delay in notifying AA of the date in contravention of EVDA procedures so that he was only notified of the date on 15 April 2013 for a planned eviction on 23 April 2013 even though LBS were informed of the date some 6 weeks earlier. He also asked for an explanation for the failure to return for a second pre-eviction visit when being unable to gain entry at the first visit. He stated in this posting:
"Please answer honestly for me as barrister suspects I will be asked these in court."
Ms Okwara provided no answers on iWorld and Mr Hilder could not explain to me why he had not chased up answers to these questions, what the answers were or why he had not dealt with these matters in his witness statement.
- Order of 4 November 2013. On 4 November 2013, Cox J ordered that items 3 and 4 of the particulars of special damage did not fall to be considered at the trial. This order merely excluded two small value items with a total claim value of £600 from the schedule of 36 items of special damage that had been pleaded. The order had no significance in relation to the scope of the trial.
- Scope of the trial. I infer from this detailed account of the procedural history that the trial was intended to deal with everything but that at the stage when the directions for trial were given, the application to strike out the conspiracy claim remained live albeit adjourned generally, the disclosure of the Matthews report remained outstanding, the witness statements had not been served and other evidential preparatory steps remained to be achieved and the pre-trial check lists had not been served. Regrettably, neither party but particularly LBS did not undertake any of these steps save for the service of witness statements concerned exclusively with the assessment of the special damages claim under the TIGA.
Part 5 The agenda for trial
- Introduction. In the light of this detailed consideration of the factual background to AA's claims and the ensuing litigation, I must now answer four procedural questions:
(1) What is the scope of AA's pleaded case;
(2) Has any part of that case been eliminated by subsequent court orders;
(3) What has been set down for trial; and
(4) Is any part of the pleaded case excluded as being an abuse of process or as having been previously and conclusively determined.
- Scope of AA's pleaded case. AA's claim was a claim for special and general damages for a tortious conspiracy whereby officers of LBS had conspired to unlawfully evict AA and to evict him by unlawful means from his flat and had further conspired to remove unlawfullly all his possessions from his flat and to dispose of them unlawfully.
- The unlawful means and unlawful ends relied on included failures to follow the LBS's Eviction and Goods Storage or Disposal Procedures, proceeding and securing AA's eviction for an ulterior purpose and in abuse of process, pursuing his eviction more than six years after the possession order had been obtained without first obtaining the permission of a judge to apply for a warrant of execution, covering up and failing to disclose the details of the unlawful actions and omissions that had occurred, failing to act fairly and reasonably with regard to AA's attempts to obtain re-entry and the restoration to him of his property and pursuing its defence to his seven applications in different courts for relief from the unlawful conduct that had deprived him of his tenancy and his possessions in a dishonest and abusive manner.
- This extensive case is ascertained by a consideration of his claim form, statement of case, particulars and schedule of loss, the details of his applications related to this claim, particularly the interim applications heard on 1 May 2013 and 5 June 2013, the amended defence and the particulars and disclosure of the investigation conducted by Mr Matthews that were served pursuant to paragraph 7 of the amended defence and AA's witness statements that had been served in connection with these claims.
- Cutting down by subsequent court orders. This extensive pleaded agenda for the trial was not cut down by subsequent court orders. The relevant parts of these orders that LBS now contends had the effect of confining the trial to a limited agenda were merely concerned with interim applications related to one specific claim for special damages for the loss of AA's possessions quantified under the TIGA whilst leaving open and for trial all other causes of action, loss and special and general damages for the loss of both his tenancy and his possessions.
- What has been set down for trial? All claims made by AA have been set down for trial. The directions for trial identify a limitation on that general setting down order by identifying that one claim is now limited to an assessment of damages. That limitation arises because LBS admitted in its defence that it had unlawfully disposed of AA's possessions. That admission was confined to an admission of liability under the TIGA and it can be seen to have reserved any further admission or denial pending the obtaining and disclosure of the Matthews report. LBS did not subsequently pursue its threatened application to strike out the conspiracy claims as disclosing no cause of action and as being abusive and it only sought to confine the trial to the narrow assessment of damages that it contended was the only claim remaining for determination in order to prevent AA and the court from considering and giving appropriate effect to the matters disclosed in the Matthews report.
- Abuse of process or res judicata. Such abuse of process as occurred was occasioned by LBS's conduct of its defence throughout the seven applications that have so far occurred in this litigation that have been analysed in detail in this judgment. The court has so far not considered AA's applications for re-entry because on each of the three occasions that they should have been considered, the court declined to consider them for procedural reasons. Furthermore, LBS failed to provide the court of much essential detail at each of these hearings and the court was unaware at each hearing of the details of LBS's unlawful conduct and its pursuit of its possession claim and its consequences for ulterior motives and in abuse of process. Moreover, all the applications were made on an interim basis and the judgments and resulting orders in each of them were procedural in nature, interim in outcome and neither conclusive nor determinative of any issue in the present claim.
- No abuse of process has yet occurred since AA's present claim for conspiracy could not have been presented in court until he had had disclosed to him the documents that were relevant to that claim. This disclosure only occurred on the second day of the trial.
- Conclusion. The entirety of AA's pleaded claims, save for items 4 and 5 of the schedule of special damages, remained for trial and no part of those claims were subject to either issue estoppel or an abuse of process.
Part 6 AA's causes of action and summary of the law
- Conspiracy. There are two types of tortious conspiracy. These are conspiracy to use unlawful means whereby loss and damage results and conspiracy to injure by combined action that may be either unlawful or, if carried out by a single person, lawful.
- The tort requires an agreement, combination, understanding or concerted action involving two or more persons that causes or intends to cause loss or harm to the defendant. Each party to the conspiracy must know the facts that form the basis of the conspiracy although it is not necessary for any of the conspirators to understand the legal effect of those facts. It is not necessary for each conspirator to join in all the actions giving rise to the unlawful conspiracy. What must be shown is that each conspirator joined in the execution of the conspiracy to a significant extent.
- In relation to the first head, being a conspiracy to use unlawful means, it is necessary to show that the conspirators intended to cause loss by the means that were used. It is not necessary to show that the conspirators knew that their actions were unlawful, it is however necessary to show that they intended to harm the claimant and to cause harm by the means that were used. It is necessary to show that the relevant actions were in fact and law unlawful. The essential ingredient of the use of unlawful involves any concerted action that is criminal, tortious, intimidatory, a breach of contract, prohibited by statute or an abuse of process. In relation to a statutory prohibition, it is necessary to show that the statute gives rise to a benefit for a particular class of which the claimant is a member and whose members have been harmed by a breach or breaches of the statute or which protects a public right where the claimant suffers damage in excess of what is incurred generally.
- In relation to the second head, being a conspiracy to injure, it is necessary to show that the conspirators combined together to wilfully injure and cause harm to the claimant. It is necessary to show that the actions complained of were undertaken for that ulterior purpose and it is a defence to the claim based on conspiracy that there was a legitimate purpose in the actions taken such as to defend the legitimate trade or other interests of the conspirators.
- In a case where the conspirators acted together as part of their employment, the employer will be vicariously liable for the actionable loss and damage caused by the conspirators unless it can be shown that the actions of the conspirators were so far from and so unrelated to their employment that they were acting outside their employment and "on a frolic of their own."
- Misfeasance in public office. Although this tort is not pleaded, the necessary factual background has been pleaded. The relevant aspect of the tort involves the exercise by a public official of public power for an improper or ulterior motive. An income or resident officer is, for these purposes, a public official and the use of the power to evict and remove a person's possessions from a premises that has been retaken by the exercise of powers of eviction is the use of public power when the tenancy in question is a secure tenancy let out by a local authority. The necessary intention, usually described as malice, requires proof that the officer or officers acted with reckless indifference to the illegality of his or her act and its consequences. The improper or ulterior motive in this case would be the intention to cause AA to lose his flat and his possessions at all costs irrespective of whether there was a good legal basis for the actions that were being taken.
- Negligence. The acts of the officers involved could only give rise to a claim in negligence if there was a duty of care imposed on those officers in relation to AA, that it was fair and reasonable for the duty to be actionable and that loss in the form of physical or emotional damage arose. Such damage could be illness, injury or psychological damage to AA or physical damage or destruction of his possessions.
- In enforcing rent arrears and securing a tenant's eviction, council officers do not owe a duty of care to the tenant. Those actions are taken under the control and supervision of the court and the officers are acting in the public interest in performing their duties. However, in seizing AA's possessions, the officials involved owed a duty of care to AA so that that seizure had to be exercised with reasonable skill and care. If the possessions were destroyed as a direct result of that seizure as a result of a failure to exercise such skill and care, AA would be entitled to claim damages for that resulting loss since, had the removal been undertaken with reasonable care, the possessions would have been bagged up and taken into storage for safekeeping.
- Covenant of quiet enjoyment. The dispossession of a tenant of his tenancy by unlawful means or for an ulterior motive or in abuse of process and the removal and destruction of his possessions would amount to a breach by the landlord of its covenant of quiet enjoyment. This contractual term of the lease would give rise to a claim for damages and in appropriate cases the tenant could claim an injunction requiring the landlord to reinstate him to the premises and to return his possessions if these had not been disposed of or destroyed.
- Article 8 of the Human Rights Act. AA is entitled to the protection of article 8 of the Human Rights Act ("HRA"). The HRA is applicable to the acts and omissions of public officials and it requires those officials to show respect for AA's rights to a family and private life. In this case, AA is entitled to respect for his home and home life and to the possessions that he has for the purpose of enjoying that life. Respect requires observance with the legal process and laws that protect him from harassment, eviction and interference with the use of his home and his possessions and the use of the legal process strictly for the purposes that it is intended for. Thus, any unlawful use of that process leading to the loss of or interference with AA's private life gives rise to an actionable breach of article 8 and, in consequence, section 6 of the HRA.
- TIGA. AA is entitled to compensation for the destruction of his goods as a result of negligence, their conversion or any other tort. The normal measure of damages is the actual loss sustained by the claimant which is measured in such normal cases by reference to the market value of the goods. However, where there is no market value readily obtainable, the loss is to be measured by reference to what would provide just compensation for the loss and destruction of the goods
- Discussion. AA has available at least seven different causes of action on which to base his claims. It doesn't follow that each has been established. Each is subject to separate, and in some cases, different rules as to causation, remoteness and recoverable loss. This makes the task of assessing damages a potentially complex exercise since the overall award of damages must exclude any element of double counting arising from the award of damages for the same loss under more than one cause of action.
Part 7 Discussion - liability
- The principal cause of action relied on by AA is that of the tort of civil conspiracy. He relies on both forms of conspiracy, namely a concerted undertaking of an unlawful eviction and interference with AA's possessions and a similar undertaking of a lawful eviction and interference with his possessions using unlawful means. The first form of conspiracy is the predominant form relied on. The unlawful nature of both processes was the misuse of the EP and 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 in the subsequent defence of AA's applications to stay the eviction and obtain re-entry and in the unlawful covering-up of this wrong doing. Insofar as necessary, the second form is relied on to the extent that the eviction and seizure processes were lawful. If it is established that no unlawful use of those powers occurred, it is contended that those processes were used for an ulterior purpose of harming AA rather than for their legitimate purpose of evicting AA for non-payment of part of his rent.
- It is necessary to consider whether AA has made out his claim based on conspiracy in three stages. Firstly, the primary facts must be considered in order to determine whether there was concerted action and, if so, what its purpose was. Secondly, the same facts must be considered in order to determine whether the acts and actions were unlawful in any or all of the ways summarised. Thirdly, those conclusions must be applied to the two forms of conspiracy giving rise to a claim.
- Having done so, the other potential causes of action will also be considered.
(2) Concerted action
- Phase 1 27 December 2012 18 April 2013: Pre-eviction. The earliest evidence of concerted action directed to AA's tenancy and possessions occurred when Mr Davis telephoned AA in Ms Okwara's absence on leave and warned him that unless he paid off his rent shortfall forthwith, LBS would take eviction action without further warning. Mr Davis was covering Ms Okwara's patch and was her line manager. He must have taken this action having discussed and agreed it with her before she went on leave given her previous involvement with AA and their disgust at what they clearly perceived to be the undue laxity AA had been shown for many years and particularly the last two years and his ability to avoid eviction by repeated and successful applications the stay and suspend the warrant in LCC.
- On her return from leave in January 2013, they both discussed AA's case and their subsequent actions point clearly to their agreeing the course of action that they would then take. This appears to have been to seek AA's eviction as soon as possible in a way that would ensure that he had the least possible warning of his impending eviction so as to minimise his opportunity to yet again avoid the ultimate sanction. Mr Davis sanctioned Ms Okwara's submission of an EVRA to Mr Hilder on 11 February 2013, both would have been aware of its return with Mr Hilder's authorisation endorsed on it and both would have been in agreement that Ms Okwara would not notify AA until just before the execution of the warrant that this was to take place. Both would also have been aware that the possession order had been outstanding for more than 6 years and, given Ms Okwara's lengthy 30-year experience as an income officer, it is inconceivable that they did not know that it was necessary first to apply to a judge for permission to apply for its issue. They must therefore have decided to forego such an application since it would not come to light and neither would have wanted to incur the delay and potential inability to proceed to an eviction that would inevitably result from the need to initiate fresh possession proceedings preceded by a section 83 notice.
- Phase 2 18 22 April 2013: Preparations for eviction. Ms Ashley joined the concerted action on 18 April 2013 when she agreed, or certainly concurred, in a decision that Mr Davis and Ms Okwara must have taken that no resident officer would attend the eviction. Although the reason for this decision has never been stated, its purpose is clear. A resident officer would be likely to hold up possession and certainly increase the chances of another suspended order since a pre-eviction visit would have to be made, an inventory made out and a halt to Voids activity pending arrangements being made to clear the flat. It is likely that Mr Davis and Ms Okwara agreed on a means of obtaining the clearance of the flat with no involvement of a resident officer, possibly by Ms Okwara arranging for clearance to take place whilst she was at the flat whilst it was being evicted.
- Ms Ashley clearly agreed with the suggestion that neither she nor any other resident officer would attend for a pre-eviction visit to the flat or attend the eviction and she probably told Mr Davis and Ms Okwara to drop off the keys to Harris Street for the attention of the Voids team.
- No doubt to their surprise, AA managed against all the odds to arrange for a stay application to be heard the day before the planned eviction only a day or two after he would first have learnt of the impending execution of the warrant. It is likely that Mr Davis discussed with Ms Okwara how she would present LBS's defence to this application and he would certainly have known that no papers would be presented to the court save for AA's application notice, no discussion would take place with AA before or after the hearing and that Ms Okwara would merely stress that no payment towards the rent shortfall had been made for nearly 2 years. As an experienced DIY eviction advocate, Ms Okwara would have been confident that the application would fail.
- The application did fail but, no doubt to Mr Davis' and Ms Okwara's consternation, AA succeeded in having a stay and permission to appeal application listed for hearing by a judge only 24 hours later. This put their planning into jeopardy because the hearing was listed for 10.00, the bailiff's appointment for 10.35 and the likelihood that the appointment would be postponed until a later date because the bailiff would not want to wait for long outside AA's flat given the other evictions he would have been booked to carry out that morning. As a result, Mr Davis, again with Ms Okwara's active support, brought in Ms Yusuff to help. She would be on standby close to the flat ready to go there if Ms Okwara could not get there but able to leave without getting involved if she did manage to get back in time for the eviction.
- Phase 3 23 April 2013: The eviction. Self-evidently, the events on the day of the eviction were the direct result of concerted action linked by a series of telephone calls between Mr Davis, Ms Okwara, Ms Yusuff, the bailiff and the carpenter. The apparently confused events are no doubt explained by Mr Davis, who was orchestrating these events, having to change the planning as the events unfolded because, firstly, the hearing was delayed, then the bailiff turned up at the flat later than expected, then Ms Yusuff had to be asked to move to Harris Street to cover for Ms Okwara and finally, the eviction had to start surprisingly quickly after AA's application was dismissed because of the bailiff's anxiety and impatience generated by his need to complete his list of evictions without running too far behind schedule.
- Phase 4 23 24 April: The immediate cover-up. The actions taken on 23 and 24 April were the result of hasty, possibly even panicked, response to the unexpected refusal of the Duty Resident Officer at Harris Street, Ms March, to pass the keys directly to Voids with no paperwork. Ms Ashley was aware the eviction had taken place and was obviously desperate to cover-up her non-attendance at it. Mr Davis, likewise, was desperate to create the impression that no resident officer was present at the eviction because there was no need for one under the EP he was going through the motions of following. Ms Okwara was desperate to make it appear that the non-attendance of Ms Ashley at the eviction was entirely the fault of the resident officer responsible. As a result, each sent out an email that they must have subsequently bitterly regretted sending. Ms Ashley sent out the infamous "no storage issues" email and a second which stated that the income officer should have given the keys to voids, Mr Davis the equally infamous "TTI" email and Ms Ashley an email to Mr Davis asking him for advice about the "no storage issues email she had been copied in on".
- Phase 5 24 April 1 May 2013 AA's initial efforts to obtain re-entry and the return of his possessions. Those concerned with the concerted action then regrouped. Mr Davis arranged for himself, Ms Okwara and Ms Yusuff to meet in an obviously conspiratorial way in a meeting room in Tooley Street on 26 April 2013. This must have been a meeting to agree the "party line" and, maybe, it was agreed to extract all relevant documents relating to the eviction from the Housing File since none of those documents appear to have been available since soon after the eviction had taken place. Ms Ashley, meanwhile was emailing these three and apparently reaching a consensus that each would acknowledge and accept that keys should always be passed to the resident officer and from him or her to Voids following an eviction. At the same time, it was apparent that Ms Ashley and Ms Okwara had agreed on the line to take with AA and both successfully avoided all his many attempts to speak to each of them. Furthermore, Ms Maresch had had to be brought in and she was persuaded to toe the party line that AA had the eviction coming since he was such a volatile and unacceptable person. This line managed to keep Ms Asaam at bay. Mr Akinsola was also brought in and he was kept at bay by Mr Davis telling him how unacceptably volatile AA really was.
- However, it dawned on the collaborators whilst they were desperately trying to cover-up their unlawful actions in relation to AA's eviction that he had lost all his possessions. The documents suggest that this occurred on 26 April 2013 when Mr Davis, Ms Okwara and Ms Yusuff met to co-ordinate their cover-up and AA's notice of application to the High Court for re-entry. It may not have been until 29 April 2013 when AA's two applications to the High Court and to LCC seeking re-entry and access to his possessions that he had been locked out from using were served on LBS. The income officers' team agreed to refer these to the Complex Cases Team and, given their complete withdrawal from matters, Mr Davis, Ms Okwara, Ms Yusuff and Ms Ashley must have agreed to keep a low profile, do nothing and hope for the best. There was also an apparent agreement that none of them would assist in the court hearings that followed and would pass as little information to the Complex Cases Team as possible. Thus, requests for information and documents passed from the Complex Cases Team to the income officers' team on 29 and 30 April 2013 went unanswered.
- 2 May 31 May 2013: The withdrawal of Mr Davis, Ms Okwara, Ms Ashley and Ms Yusuff. Throughout May, various senior officers, having been fed the party line that AA was too volatile to assist, avoided taking action despite enquiries from AA, two Councillors, Peckham Police Station and the PA to the Strategic Director of Housing and Community Services at bay.
- Senior management only became aware of the loss and destruction of AA's possessions on about 16 May 2013. This led Mr Hilder and Ms Russell to report this to, presumably, the Director of Housing who initiated the Matthews investigation soon afterwards.
- No doubt as a consequence of the initiation of the investigation, Mr Davis, Ms Okwara and Ms Yusuff appear to have met on about 31 May 2013 to co-ordinate their evidence to the investigation. Three short and anodyne statements were produced in very similar terms that gave very similar but inaccurate accounts of the eviction. They even look as if they were produced on the same computer and printer and were drafted in unison. One of these statements is dated 31 May 2013.Thus, the agreed intention of all three officers appears to have been to co-ordinate an attempted cover-up of what happened when they each gave evidence to the Matthews investigation.
(3) The purpose of the concerted action
- When the series of stages is considered in the round and in sequence, it can be seen that there was a central purpose of the concerted action, albeit that that purpose slowly transformed itself. The concerted action lasted from 27 December 2012 until 31 May 2013. Its initial purpose was to ensure that AA was evicted and that his chances of avoiding eviction by obtaining a further stay should be reduced or eliminated. Those involved turned a blind eye to AA's possessions and showed, at best, a wilful disregard for them and, at worst, were completely indifferent as to whether they were retained or destroyed and gave no thought to them at all. However, as soon as the eviction was completed, the concerted action turned its attention to covering up the fact that those concerned with the eviction had acted in a flagrantly unlawful manner thereby ensuring that AA lost his possessions and the opportunity of obtaining re-entry.
- Had the unlawful steps leading to AA's eviction not occurred, it is highly likely that AA would have save his tenancy and kept his possessions. Had the cover-up not occurred, AA would have gained re-entry and would have succeeded in paying off his arrears and he would have been able to retrieve his possessions from the flat or from the storage facility to which they would have been taken.
(4) The unlawful actions that occurred
- Ulterior motive. Mr Davis and Ms Okwara were determined to obtain AA's eviction whether it was lawfully obtained or not. Their motive in acting as they did was demonstrated to be an "eviction at all costs" motive. There is no other explanation for Ms Okwara's delay in attempting to notify AA of the date of the eviction, in only half-heartedly attempting to carry out a home visit, in apparently hiding the relevant documentation from the Housing File and in making no attempt to obtain the permission of a judge to apply for a warrant. Equally, there is no other explanation for the series of lies that they told Mr Matthews about the telephone calls they made during the eviction and in deliberately engineering an eviction at which neither the income nor the resident officer were present and in making no effort to identify AA's possessions, prepare an inventory of them and then remove them safely to storage.
- It has to be remembered that AA had good prospects of persuading a judge not to approve an application for permission to issue a warrant, of obtaining a postponed possession order with no fixed date or a stay or suspension of the order or of a warrant. This was because AA had virtually eliminated his arrears of rental shortfall two years before the eviction attempt was started and LBS had acquiesced in the subsequent non-payment of the shortfall arrears for two years before Ms Okwara became AA's income officer. AA proved subsequently that he could raise the necessary funds to pay off the totality of the arrears and the extent of the arrears was unsatisfactory but not excessive. It follows that Ms Okwara would have been pessimistic in her consideration of whether there were good prospects of evicting AA straight off.
- It follows that both Mr Davis and Ms Okwara had an ulterior motive in seeking AA's eviction. They had limited prospects of evicting him lawfully and they therefore appear to have embarked on an eviction with the intention of evicting AA even though this could not be done lawfully.
- Non-compliance with the EP - eviction. LBS's EP was the expression by a public body of the policy it wished to adopt with regard to the way its evictions were carried out. AA and all other tenants had a legitimate expectation that that policy would be complied with. Any significant departure from that policy by LBS would therefore be unlawful. The many departures, particularly the absence of both AA's income and resident officers, gave rise to a significantly unlawful eviction.
- Failure to obtain a judge's consent to an application for a warrant. The judgment has already determined that the eviction was unlawful and an abuse of process in being undertaken pursuant to a warrant which had not been proceeded by a successful application to a judge for permission to issue it. The relevant possession order was more than six years old when the warrant was applied for and, as has already been demonstrated, a court is usually unwilling to authorise a warrant in such circumstances. The eviction was also an abuse of process.
- Abuse of process in the eviction proceedings. 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 its defence to AA's applications in the district judge's court on 22 April 2013 and the circuit judge's court on 23 April 2013. Ms Okwara was conducting a DIY eviction on behalf of LBS and she had rights of audience for that purpose. That required her to assist the court, to provide the court with accurate and full information about the tenancy, the tenant and the breaches 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 strengths 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 EP. In short, the conduct of the proceedings associated with the application for a warrant was an abuse of process.
- Unlawful eviction. The eviction was unlawful in a number of different respects. The warrant was issued without first obtaining the permission of a judge. The eviction policy of LBS was infringed in a number of significant respects. The bailiff did not surrender possession to LBS but to a carpenter employed by an independent contractor who had no authority to sign the warrant. Finally, the tenant's application to stay or suspend the warrant was defended in an abusive and unfair manner.
- Interference with right to quiet enjoyment. The eviction and the way that it was carried out gave rise to breaches of the tenancy agreement by LBS. These breaches gave rise to a gross interference with AA's right to quiet enjoyment.
- Non-compliance with EP possessions. The non-compliance with the EP with respect to AA's possessions coupled with the removal and destruction of those possessions was unlawful.
- Breaches of duty as income and resident officers. The income and resident officers owed duties of fair dealing, candour and non-discriminatory conduct to LBS. In breach of those duties, Mr Davis, Ms Okwara and Ms Ashley failed to reveal to LBS that the eviction had been carried out in breach of the EP, that AA's possessions were at risk of being destroyed and that their conduct had been unfair, lacking in candour and actually or potentially discriminatory.
- Abuse of process subsequent proceedings. The five applications made by AA after he had been evicted were defended with similar abusive practices as the earlier proceedings had been. In particular, Ms Okwara and Ms Ashley played no part in them and failed to bring to the attention of the court or LBS's legal representatives the details of their unlawful conduct. Subsequently, LBS attempted to conduct the proceedings as if all claims save for a 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 was also an abuse of process.
- Breaches of article 8. LBS's unlawful conduct in seeking and obtaining possession of the flat and in removing and destroying AA's possessions was unlawful and failed to show due respect to AA's private life. It was therefore unlawful.
(5) Conclusion - Conspiracy
- It follows that the various officers of LBS 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.
(6) Other causes of action
- Misfeasance in public office. Mr Davis, Ms Okwara and Ms Ashley exercised their powers as public officers in relation to a local authority secure tenancy for an improper motive. They each acted with the intention of harming AA be evicting him when there were no reasonable grounds for evicting him and by arranging for his possessions to be seized and destroyed unlawfully. Each is, in consequence liable for misfeasance in public office and LBS is vicariously liable for the commission of that tort.
- Negligence. LBS is, in respect of the destruction of AA's possessions liable in negligence to AA. It was unreasonable and a breach of the duty of care owed to AA in respect of his possessions to allow them to be destroyed and to fail to act to prevent that occurring although it was known to its servants that the possessions were at risk of being destroyed yet nothing was done to prevent that occurring.
- Breach of the covenant of quiet enjoyment. LBS is liable in contract for acting in a way that has significantly breached AA's entitlement to quiet enjoyment of his tenancy.
- Article 8 of the HRA. LBS has breached AA's entitlement to respect for his private life.
- TIGA. The unlawful seizing and subsequent unlawful destruction of AA's possessions was both negligent, a conversion of those goods and amounted to tortious conduct. It therefore gives rise to an entitlement to recover the loss that thereby resulted pursuant to the TIGA.
(7) Conclusions - liability
- AA has established that his eviction and the destruction of his goods were unlawful and that he is entitled to claim damages under each of the causes of action that have been established. Such damages are not confined to special or general damages but may in principle, and subject to proof, include claims for aggravated and exemplary damages and damages for breach of contract and duty, in tort and for equitable remuneration for the lost work stored on hard drive, discs and memory sticks and photographs.
HH Judge Anthony Thornton QC
Note 1 The arrears of rent pleaded in the counterclaim were £2,919.69 on 21 July 2013. This figure took account of unpaid court costs of £485, two further costs orders totalling £400 relating to hearings on 1 and 14 May 2013 and two payments made by AA on 24 and 29 April 2013 totalling £550. [Back]
Note 2 Two further payments of £950 by order of Master Kay QC dated 5 November 2013 and £5,000 by order of HHJ Anthony Thornton QC dated 14 March 2014 have since been paid. [Back]
Note 3 AA withdrew has appeal and application for permission to appeal during the trial and that withdrawal was recorded in an order made by the Court of Appeal.
Note 4 The prescribed form may be found in the Secure Tenancies (Notices) Regulations 1987 as amended. [Back]
Note 5 CCR 26r6(1). The warrant may be renewed by an order of a judge from time to time for a period or periods of twelve months. [Back]
Note 6 Form N54 issued by HM Court Service. There is no statutory requirement or requirement imposed by the CCRs for the court to notify the tenant in advance of the eviction enforcement action of the date or time of that enforcement. The evidence suggested that, on previous occasions, LCC had notified AA at the same time as notifying LBS using form EX96 but in this case LCCs service of N54 on AA appears to have occurred on about 16 April 2013 for an eviction that was to take place on 23 April 2013 even though it had served LBS with notification on about 26 February 2013. [Back]
Note 7  EWCA Civ 1938, CA per Peter Gibson LJ at para 21. [Back]
Note 8 Order 46 rule 4(2) of the Rules of the Supreme Court which continues in force as part of the CPR is in identical terms to CCR 26r5. [Back]
Note 9 National Westminster Bank v Powney  Ch 339, CA. [Back]
Note 10  1 WLR 1425, CA. [Back]
Note 11 Amendments to the HA made by schedule 11 to the Housing, Grants and Regeneration Act 2008. [Back]
Note 12  UKSC 28, SC. [Back]
Note 13  1 WLR 1425, at pp 1430-1431. [Back]
Note 14 Knowsley Housing Trust v White  AC 636, para 91, HL. [Back]
Note 15  1 WLR 2582, CA. [Back]
Note 16 The relevant parts of each relevant order are emboldened. [Back]
Note 17 `(1996) 28 HLR 219, CA. [Back]
Note 18 Suspended Eviction Request. [Back]
Note 19 See paragraph 82 above. [Back]
Note 20 The database showed that the total arrears on the same date were £2,080.11.
Note 21 The numbers in brackets refer to the comments immediately following this extract from the email [Back]
Note 22 Emphasis in the original. [Back]
Note 23 See paragraphs 109 113 and 123 125 above. [Back]
Note 24 See paragraphs 50 66 and 68 70 above. [Back]
Note 25 The order here referred to can only be a reference to the order of 13 November 2006 since that is the only order for possession made by LCC throughout the history of AAs litigation. The orders made subsequent to that order were all orders varying the original order by staying or suspending the execution of the order or postponing the date for possession pursuant to section 85(2) of the HA. [Back]
Note 26 See paragraph 111 above. [Back]
Note 27 Those listed in paragraph 19 above. [Back]
Note 28 See paragraph 75 above. [Back]
Note 29 Section 1 of the TIGA and see Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5)  2 AC 883 at para 67 per Lord Nicholls. [Back]
Note 30 See paragraph 42 above. [Back]
Note 31 See for this topic paragraphs 52 67 above. [Back]
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