The Lord Chancellor’s Letters

On Friday the Lord Chancellor once again found a letter he wrote to The High Court Enforcement Officers Association (the “HCEOA”) plastered across the news. This letter is the second such letter that has been sent to the HCEOA in recent weeks. As those who tuned into 1CL’s webinar last week will know, the first letter, dated 21 October 2020, was a “request” for no evictions to be carried out a) where Tier 2 or Tier 3 restrictions are in place and b) during the 11 December 2020 to 11 January 2021 period. As we mentioned in the webinar, the legal basis for that “request” was (and is) unclear to us.

The second letter, dated 5 November 2020, involves a wider range of “requests” and is again devoid of any explanation as to why these requests are lawful. It is clear, however, that the government expects the HCEOA to adhere to the guidelines for the duration of the current lockdown measures.

The Lord Chancellor’s first request was for HCEOs to adhere to the Covid-secure guidance and to refrain from entering residential properties in England “for the purpose of enforcement by taking control of goods.” This guideline will seemingly apply without exception.

The Lord Chancellor’s second request was for HCEOs not to attend properties in England for the purpose of enforcing a writ of possession or restitution, including service notice of enforcement. There are, however, exceptions to this guideline. More particularly, enforcing a writ of possession or restitution, including serving notice of enforcement, will apparently be permitted where an order for possession has been granted either:

• Following a claim against trespassers to which CPR r55.6 applies;
• Section 84A of the Housing Act 1985;
• On Ground, Ground 2A or Ground 5 in Schedule 2 to the Housing Act 1988;
• On Ground 7A, Ground 14, Ground 14A or Ground 17 in Schedule 2 to the Housing Act 1988;
• Under case 2 of Schedule 15 to the Rent Act 1977; or
• On Ground 7 in Schedule 2 to the Housing Act 1988 and where the person attending is satisfied that the dwelling house is unoccupied at the time of attendance.

The Lord Chancellor also promised to “introduce an exemption for cases with extreme pre-Covid rent arrears”, with details forthcoming.

It seems this second letter has gone further than the first in that the Lord Chancellor has decided, without any real explanation, that certain categories of cases ought to be exempt from his guidelines on the enforcement of eviction. It is also unclear how these “requests” override Bailiff’s or HCEO’s standard duties to enforce warrants or writs. It is our understanding that the Lord Chancellor’s letters have not yet been subject to legal challenge, but that may well change this time around.