Especially since appearing on TV, an increasingly common question from members is about the use of High Court Enforcement Officers (HCEO`s) in relation to obtaining 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.
- 1 When can a High Court Enforcement Officer be used?
- 2 When should a High Court Enforcement Officer be used?
- 3 Choosing a High Court Enforcement Officer
- 4 Permission to transfer to High Court
- 5 Refusal
- 6 Transfer to High Court
- 7 Money judgment
When can a High Court Enforcement Officer be used?
A HCEO can be used for securing possession after a possession order has been obtained from the court. Using a HCEO doesn’t change that initial procedure except for seeking permission which will be discussed shortly.
Also, a 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).
When should a High Court Enforcement Officer be used?
A HCEO can be quite expensive – between £400 and £900 compared with the County Court Bailiff (CCB) which is £121.00. Therefore whether to use a 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 6 weeks or longer, then it might be worth considering the use of a HCEO but it might also depend on other factors such as:
- is rent being paid?
- Is damage being caused?
- Is there regular anti-social behaviour?
- Has genuine threats of violence been used and a HCEO might be more appropriate?
- A HCEO does not have to give notice of their attendance unlike the County Court Bailiff.
Seeking permission to transfer and then completing the transfer itself can be time consuming and stressful. Permission 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 a HCEO attractive.
In our case currently going through, 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 the purpose of this article and research.)
Choosing a High Court Enforcement Officer
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. In the end we found it easier and quicker to simply carry on the process ourselves rather than relying on them.
Before a High Court Enforcement Officer will be authorised by government, they must be a member of the High Court Enforcement Officer Association. That association has on their website a directory of members.
Permission to transfer to High Court
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 an application should be made by a party to the proceedings.
The application can be done either at the time of making the possession claim but the court may ask for a formal application notice (form N244) be submitted instead. Alternatively, permission can be sought on form N244 after possession has been ordered.
Permission at time of making the claim
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 contain permission to transfer the claim to the High Court.
If permission is granted within the possession order, 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.
In order 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):
- long delays for the County Court bailiff
- tenant not paying rent
- damage being caused
- anti-social behaviour towards neighbours
- violence threatened
In our case, the County Court bailiff was only going to be two weeks. Therefore, we couldn’t put any 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 if when you ring the bailiff it is going to be 6 to 8 weeks and the tenant owes rent or is being anti-social, that is likely 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 a HCEO.
The wording of the covering letter is straightforward and we have a suitable template available here.
You should edit the covering letter as follows:
- Insert the name and address of the court.
- Change the number of weeks delay to whatever the County Court informed you of.
- To get permission you must have good reasons – the delay will be a good reason but you should also edit the bullet point reasons by adding to / deleting as appropriate.
Please note, just by inserting the covering letter does not mean you will necessarily get permission. The following outcomes are possible:
- permission granted in the possession order
- refusal to deal with the permission request and the claimant must make a separate application after the possession order has been made accompanied by the appropriate fee
- permission refused
Seek permission after possession order
Note: according to www.highcourtsolutions.co.uk, they can obtain permission directly from the High Court without having to seek permission from the County Court (the County Court is notorious for refusing permission). Therefore, you may want to 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 way detailed below we know is correct. However they claim to have had a decision confirming it can be done (but refuse to provide us with details of that decision)!
Where no permission was sought in the original papers or the court refused to hear the permission application at the same time, 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 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 for £50.00 (at the time of writing, see form EX50 for court fees) made payable to HMCTS should be enclosed.
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. It is important that the delay of the County Court bailiff is mentioned and then additional reasons (such as non-payment of rent, anti-social behaviour etc.) is 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 ideally there should be more than just the delay inserted.
The reasons for the refusal given by the court in our members 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].
These seem very unfair reasons to us! But, 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 though 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 but in reality, you are probably as well at that stage to just complete the warrant of execution for the CCB because an appeal could take even longer.
Transfer to High Court
Once you have obtained permission to transfer the claim to the High Court either from the request within the claim form or by separate application, the next stage is to actually do the transfer. A writ of possession will need to be applied for which requires permission of the High Court first. Before permission will be 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. Normally, the High Court Enforcement Officer of your choice 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 Sheriffs 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 claims 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 judgment 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.