No interim injunction to reverse eviction

In the interesting case of Barkatali v (1)Davies (2)HSBC UK Bank Ltd (3)Elderbridge Ltd [2020] EWHC 753, Mr Justice Morgan declined to order an interim injunction which would have allowed the applicant to return to a flat from which he had been evicted following the determination of his licence. The applicant had lived at 12A Maygrove Road, NW6, (the flat) with Richard Davies (Richard). Richard was the flat’s owner and the applicant was Richard’s licensee. On 19 January 2020, Richard died intestate and the applicant’s licence determined by operation of law. Richard was survived by his father (Mr Davies being the first respondent) and his brother. Under the rules of intestacy Mr Davies would ultimately inherit the whole of Richard’s estate, but the letters of administration had not been obtained by the time of the hearing. The applicant continued to live in the flat until 15 March 2020, when Mr Davies caused the locks of the flat to be changed while the applicant was out. The applicant had not been able to gain access to the flat since and had been staying with a friend. The  applicant sought an order that Mr Davies deliver up to him immediately a key to the flat and allow him to resume occupation of it. The applicant did not argue that he had any present right to be in possession or occupation of the flat pursuant to a tenancy or licence or a beneficial interest or anything similar. There were two bases on which he put his claim for an injunction giving him the ability to return. The first was that he asserted that he would be entitled to an order under the Inheritance (Provision for Family and Dependents) Act 1975 (the 1975 Act). It was argued that he would be entitled to seek and obtain an order allowing him to remain in the flat either as the transferor of the flat or pursuant to a life interest under a settlement. Mr Justice Morgan considered the limited evidence before him and found that (prima facie) the intestacy rules did not fail to make reasonable financial provision for the applicant. He found that there was no reasonable financial provision that ought to be made for the applicant. Further, although Lewis v Warner [2018] Ch 450 makes it clear that it is possible that an individual needs to reside in a specific flat, this was not such a case. The 1975 Act would not assist the applicant in obtaining the interim injunction he sought. The second basis is of particular interest to those considering possession matters. The applicant did not assert that he had any legal interest in the flat when he was evicted but rather that he had a better right to possession than Mr Davies (who evicted him) and therefore he should be allowed to retake possession of the flat as before. Mr Justice Morgan was prepared to accept that the applicant was unlawfully evicted and expressed strong disapproval of what Mr Davies had done (at least as it was described in the applicant’s witness statement). However, the judge considered that it “is appropriate to take into account wider considerations before determining whether the court should intervene by making the interim order which is sought”. The judge continued, “The flat is owned by Richard’s estate. As there is not currently an administrator, title to the flat is vested in the Public Trustee. It may be that Mr Davies would wish to be the administrator. If he does not wish to be the administrator, perhaps by reason of his age, I expect the administrator will be someone selected by Mr Davies, or with his approval, as he is the sole beneficiary of the estate. “Most recently, the absence of an administrator is partly attributable to the fact that [the applicant] has lodged a caveat in relation to the appointment of an administrator. However, I do not see how (in the light of my conclusions as to the 1975 Act) [the applicant’s] views will be relevant as to the selection of the administrator. If there were an administrator and if [the applicant] wished to obtain an interim order against the wishes of the administrator, the court would not grant the order. “Such an order would involve allowing [the applicant] into possession when he has no right to possession against the wishes of the owner of the flat. I do not consider that I should take a different view when there is currently no administrator, particularly in the circumstances described above as to why there is no administrator. The interim order which is sought would still consist of putting into possession someone who has no right to possession and without the consent of the owner of the estate.” The application for interim relief was dismissed. This application was obviously heard on an interim basis and as a matter of urgency,  the coronavirus pandemic had allowed limited instructions and it is fact specific. However, allowing an eviction by someone without a right to possession is something to be noted. Elizabeth Haggerty is a barrister at Lamb Chambers