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Especially since appearing on TV, an increasingly common question from members is about the use of High Court Enforcement Officers (HCEOs) to obtain possession of let premises. Fortunately for this article, we have recently had a genuine case, so we decided to test the procedure for using a High Court Enforcement Officer.
An HCEO can be used for securing possession after a possession order has been obtained from the court.
Using an HCEO doesn’t change that initial procedure except for seeking permission which will be discussed shortly. Also, an HCEO can be used for recovering unpaid money after a judgment has been obtained from the court (including where the money judgment is included in a possession order - such as a section 8 notice claim based on rent arrears).
An HCEO can be pretty expensive - between £400 and £900 compared with the County Court Bailiff (CCB). Therefore whether to use an HCEO depends on multiple factors but primarily the length of time the County Court Bailiff is likely to take to attend after the date given in the possession order has passed.
The first thing to do before you complete a claim form for possession (if not already done) is to contact the county court and ask the bailiff or clerk how long it is estimated it will take to attend after a possession order. If the reply is six weeks or longer, then it might be worth considering the use of an HCEO, but it might also depend on other factors such as:
Seeking permission to transfer and then completing the transfer itself can be time-consuming and stressful. Consent is not always granted either.
Therefore, in our view, the default position should be that the County Court bailiff should be used in all cases except where (a) there are likely to be considerable delays in the County Court bailiff attending and (b) there is some further factor making the use of an HCEO attractive.
In our case, our bailiff only had a two-week delay. Therefore, in reality, they would be the best option. However, we did proceed down the HCEO route for this article and research.
For a short period of our case, we used a company called The Sheriffs Office (update: no longer linked to as it seems they have possibly been doing these wrong by using form N239A, which is for trespasser claims only - see this nearlylegal blog post) who provided lots of information, to begin with.
It should be noted this article is in no way a review nor recommendation for the company or its services. Ultimately, we found it easier and quicker to carry on the process ourselves rather than relying on them.
Before the government authorises a High Court Enforcement Officer, they must be a member of the High Court Enforcement Officer Association. That association has on their website a directory of members.
Under section 42 County Courts Act 1984, it is possible for the court to transfer proceedings from the County Court to the High Court, but permission is required first. The transfer is discretionary, and a party should make an application to the proceedings.
The application can be made either at the time of making the possession claim, but the court may ask for a formal application notice (form N244) to be submitted instead. Alternatively, permission can be sought on form N244 after possession has been ordered.
When commencing a possession claim with the accelerated possession form N5b or the standard possession claim forms N5 and N119, you can insert a covering letter containing a request that if possession is ordered, the order should also include permission to transfer the claim to the High Court. Suppose permission is granted within the possession order. In that case, the landlord will still have the opportunity to use the County Court bailiff (CCB) or High Court Enforcement Officer because it’s only permission at that stage, and the claim would still need to be transferred. Once it’s been transferred, though, only the HCEO can be used.
To be entitled to permission (also called “leave”), the landlord claimant will need to show good reasons, and from what we’ve seen, permission is not granted easily. Examples of reasons will include (but not be limited to):
In our case, the County Court bailiff was only two weeks. Therefore, we couldn’t put “delay” in our reasons showing good cause (it was likely to take two weeks just to get permission). Time will always be the primary good cause, so when you ring the bailiff, it will be 6 to 8 weeks, and if the tenant owes rent or is being anti-social, that is likely a good cause. However, where the bailiff is going to be a couple of weeks, there’s not necessarily as much good cause because the CCB can attend almost as quickly as an HCEO.
The following outcomes are possible:
Note: according to www.highcourtsolutions.co.uk, they can obtain permission directly from the High Court without seeking consent from the County Court (the County Court is notorious for refusing permission). Therefore, you may consider contacting them, who will assist with the permission route. It must be said we’re not sure of the legality of seeking permission this way, and the method detailed below we know is correct. However, they claim to have had a decision confirming it can be done (but refuse to provide details of that decision)!
Where no permission was sought in the original papers or the court refused to hear the permission application simultaneously, an application notice to the County Court (form n244) will be required. Here we have a sample completed form adjusted from our case, which was successful and leave was granted.
Like above, the reasons showing good cause should be inserted (long delays for the bailiff, not paying rent, damage etc.).
The application should be sent to the same court that made the possession order, and a copy of the order should be attached.
A cheque made payable to HMCTS should be enclosed. See form EX50 for the fee. It is likely to take 2 - 3 weeks for you to be notified of the outcome.
The main reason for not getting permission seems to be a lack of reasons provided. The delay of the County Court bailiff must be mentioned, and additional reasons (such as non-payment of rent, anti-social behaviour etc.) are given.
One of our members who also tested the process was unsuccessful in gaining permission. This was probably due to a lack of reasons, but the delay of 11 weeks for the County Court bailiff was inserted. This shows that there should be more than just the delay inserted. The reasons for the refusal given by the court in our member’s case (who was using a solicitor to do the transfer) were:
(a) There is no reason why the County Court bailiff cannot execute the warrant. (b) There is greater protection for the tenant [by not giving permission] ie: notice of eviction will be given [by the County Court bailiff].
Note: since that decision, the rules have now changed, and both County Court bailiff and High Court Enforcement Officers must give notice to the tenant before attending.
These seem very unfair reasons to us! But, it does show how difficult it can be to get leave to transfer. That being said, the one we did was successful despite not mentioning any delays. We inserted several reasons, including how the tenant had had a fire, flooded downstairs three times, tampered with the fire alarm, anti-social behaviour, and potentially aggressive dog.
If permission is refused, you could, in theory, appeal that refusal. Still, in reality, you are probably as well at that stage to complete the warrant of execution for the CCB because an appeal could take even longer.
Once you have obtained permission to transfer the claim to the High Court from the request within the claim form or by a separate application, the next stage is to do the transfer.
A writ of possession will need to be applied for, which requires the permission of the High Court first.
Before permission is granted, every occupant must have received notice of the application under CPR 83.13(8)(a):
every person in actual possession of the whole or any part of the land (‘the occupant’) has received such notice of the proceedings as appears to the court sufficient to enable the occupant to apply to the court for any relief to which the occupant may be entitled
Once the claim has been transferred to the High Court, your only option will be to use the HCEO. Typically, your High Court Enforcement Officer will look after the transfer for you. Many High Court Enforcement Officers have been advising the use of form N239A (which we were advised to by The Sheriff’s Office). This advice is wrong, and that form is only suitable for trespasser claims.
Where a landlord has a money judgment only against a person, for example, a small claim for rent arrears or damage and the person has failed to pay within the time-scale specified in the judgment (usually 14 days), enforcement of the decision can be transferred to the High Court where the amount due is for £600.00 or more. Like with the possession transfer, your High Court Enforcement Officer of choice will likely handle the transfer for you, but they may charge.