Notice of eviction considered in person and remotely and ECRO imposed

Dispensing with the delivering of a notice of eviction before issuing the writ of possession was correct in circumstances where there was evidence of previous assaults on process servers and association with a group who organises gatherings to prevent bailiffs from discharging their duties. Where a civil restraint order was insufficient an extended civil restraint order was imposed. In Lloyds Bank plc v Mealham and another [2024] EWHC 2737(Ch) David Halpern KC (sitting as a high court judge) considered the defendants’ application to set aside an order dispensing with service of notice of eviction and whether the court should make a civil restraint order. On 30 October 2013 the claimant bank loaned £86,275 to the defendants secured on their property Grove House, 56 Romney Road, Willeborough, Ashford, TN24 ORR. The loan was not repaid and possession proceedings were commenced. These were defended and met with counterclaims on numerous grounds including allegations of fraud by the bank. There were numerous adjournments and transfers of the proceedings. The first defendant (D1) made an application for extensive disclosure against the bank. This was refused and his appeal was dismissed as being totally without merit. The bank obtained an injunction to restrain D1 from harassing and intimidating its witnesses. D1’s appeal against the grant of this injunction was dismissed and found to be totally without merit. In July 2018 a process server attempted to serve that injunction and gave evidence in her witness statement that she was assaulted by D1. The possession proceedings took place over four days in August 2022. The hearing was not straightforward but ultimately a possession order was made. D1’s application for permission to appeal was dismissed as being totally without merit. An application made by D1 under the Bankers’ Books Evidence Act 1879 was dismissed as being totally without merit. In July 2023 a county court bailiff attended to serve the warrant and evidence was given that he was assaulted such that he had to be off work for several weeks. Applications by D1 for suspension of the possession order and for an injunction against the bank were both refused and by consent the proceedings were transferred to the high court (enforcement being then the  only issue outstanding). D1’sapplication to have the matter transferred to the King’s Bench Division as it concerned matters of national security was dismissed as being totally without merit. On 8 May 2024 at the bank’s request (and in light of the previous assaults) an order was made dispensing with the requirement to deliver notice of the eviction on the defendants before issuing the writ of possession. This order was resealed by Master Brightwell on 20 May 2024 giving D1 the opportunity to apply to set it aside under CPR 23.10. It was D1’s application to set aside this order which was before Mr David Halpern KC. The hearing of D1’s application began as an in person hearing  on Friday 25 October 2024. However, there were frequent interruptions by D1 and members of the public gallery. The judge’s efforts to allow tempers to calm by rising were unsuccessful. The security staff were unable to clear the court and the police were called. The judge directed that the hearing be adjourned to the following Monday to continue as a remote hearing. This was to enable D1 to be muted if he continued to disrupt proceedings (without having to exclude him from the proceedings). It would also prevent further interruptions from the members of the public gallery whom the judge found were being encouraged by D1 to disrupt the proceedings. At the remote hearing the judge accepted that D1 had apologised for his previous conduct and warned that D1 would be muted if he referred to irrelevant matters. The judge was satisfied that this was a proportionate response to D1’s inability to behave in court. It respected the principles of open justice and access to justice whilst ensuring that D1’s behaviour would not further disrupt the proper administration of justice. The court had D1’s written submissions in the application in his witness statement and in additional papers that he had served. After 10 minutes he was muted as he persisted in referring to national security and the bank’s frauds. The court’s discretion to set aside the order arose only from CPR 23.10 which provides that any party who is not served with an application notice before an order is made may apply to set it aside. Here the order was entirely justifiable – D1’s real complaint was the order for possession and that was longstanding and unchallengeable, there was credible evidence of at least two assaults by D1 and also that he was associated with a group called Rapid Response which organises gatherings outside homes threatened with lawful eviction preventing bailiffs from discharging their duties. The application was dismissed as being totally without merit. Under CPR 23.12 where a court finds an application to be totally without merit it is required of its own motion to consider whether it should make a civil restraint order. Under Paragraph 3.1 of PD 3C an extended civil restraint order may be made where a party has persistently made claims or applications which were totally without merit. In the present case, the court was satisfied that a limited CRO would not suffice and found that it was necessary to make an ECRO. Before reaching this decision, the court invited D1 to make submissions but as he persisted in referring to national security and fraud he was muted after 15 minutes. The ECRO was imposed for three years. Elizabeth Dwomoh is a barrister at Lamb Chambers