Possession proceedings should usually be started in the local County Court, even when seeking to evict trespassers from non-residential property. It is sometimes possible to bring proceedings in the High Court, which may be quicker, but the circumstances in which this is allowed are limited. A very recent case, LB Enfield v Phoenix and others, showed just how painful the consequences of getting it wrong can be.
A group of occupier moved into an empty former children’s centre, owned by Enfield Council, which is apparently to be sold to a private developer. Enfield tried to get an Interim Possession Order (a kind of emergency order) in the Barnet County Court, but this was dismissed because of procedural failings by the Council. Enfield then issued a possession claim in the High Court, which the occupiers defended as having been improperly issued in the High Court.
Practice Direction 55 to the Civil Procedure Rules says that a possession claim may be issued in the High Court if:
(1) there are complicated disputes of fact;
(2) there are points of law of general importance; or
(3) the claim is against trespassers and there is a substantial risk of public disturbance or of serious harm to persons or property which properly require immediate determination.
Enfield argued that at the previous hearing the occupiers had raised a defence involving Article 10 and 11 under the Human Rights Act on the right to free expression and the right to protest, which involved complex issues of law. The Council also argued there was a risk of disorder at the eviction stage.
The occupiers argued that County Court Judges were well able to hear and decide on human rights defences, as there was nothing expecially complex about the issues of law. The occupiers denied that there was any risk of disorder at present or when and if they were evicted. They presented letters of recommendation from community figures in Barnet, where they had occupied and kept open the Friern Barnet Library until a local community trust took over.
The High Court agreed that this was not a matter of complex law that would require a High Court hearing. On the risk of disturbance or harm, the Practice Direction required an immediate, present and/or substantial risk. The possibility of future risk was insufficient. There was no evidence to suggest that the occupiers posed any such risk nor was there even any likelihood of such a risk occuring.
The claim was transferred to the Barnet County Court. Enfield were refused their costs and were ordered to pay £500 to the Access to Justice Foundation in costs for the occupiers’ pro bono legal representation. So Enfield will have to wait for another hearing date, lost the costs of the High Court hearing and even had to pay pro bono costs.
The lesson is that the rules in Practice Direction 55 1.3 are strict and unless they are met, a possession claim should be in the County Court.