INJUNCTION AND POSSESSION AGAINST TRESPASER SUSPENDED BECAUSE OF COVID

January 26, 2021 · by · in Civil Procedure, Coronavirus

In Merritt v Thurrock Council & Anor [2021] EW Misc 2 (CC)  HHJ Karen Walden-Smith found that the defendant had no defence to a claim for trespass. However enforcement of the order was delayed because of the coronavirus situation.

 

THE CASE

The defendant moved back into a property owned by the defendant after the locks had been changed.  The judge found that the defendant had no right to remain in the property as she was not a tenant.  The defendant was a trespasser.

THE JUDGMENT

The judge found that the defendant had no right to remain in the property. However possession was deferred because of the coronavirus situation.
38.As the granting of an interim injunction in favour of Midos would be tantamount to final relief, it should only be granted if there is clearly no defence to the action (see Injunctions (13th Ed. 2018) Bean LJ, Burns QC and HHJ Parry). For the reasons I have already set out when considering Ms Merritt’s application for an injunction, it is clear that there is no defence available to Ms Merritt.
  1. It would be wrong to grant injunctive relief to enforce Midos’s right to possession of the property if it were arguable that the same interfered with any public law rights that Ms Merritt may enjoy. Recovering possession of temporary accommodation does not interfere with those pubic law rights but, in any event, her reliance on article 8 rights does not impact upon Midos as a private body.
  2. It is clear that there is no defence to the claim brought by Midos and that inevitably means that the balance of convenience falls more in favour of Midos. In more normal times, pre-pandamic I would be clear that the balance of convenience lay in favour of Midos in order that this property could be freed up to provide accommodation to another. Midos does not have any obligation to keep Ms Merritt housed and she has no rights to compel them to do so. Her previous breaking into the property after the locks were changed is clear evidence that it is appropriate for there to be some restraint on her behaviour.
  3. The moratorium on the execution of writs or warrants of possession does not directly apply to this matter. Midos does not require a warrant for possession in the circumstances of this case. However, the current Covid-19 pandemic cannot be ignored. For a significant period of time last year there was a moratorium on possession claims being heard. That moratorium did not apply to trespassers. Even when that was lifted, there was a moratorium on evictions and, as set out above, that moratorium has been extended until 21 February 2021. Again, that moratorium does not apply to trespassers. The reason for that moratorium is clear. With the rapid spread of the virus, there is a public health requirement for as few people as possible to be outside their own homes.
  4. As a consequence, while I find that Midos is entitled to the interim injunction sought, I will suspend the enforcement of that injunction until the expiry of the moratorium on execution of any writ or warrant of possession on 21 February 2021, with the parties having liberty to apply for a further suspension should circumstances change or the moratorium extended further. In granting the injunction but suspending its enforcement, the order is consistent with Midos’s rights for an injunction while not running contrary to the current restrictions introduced as a consequence of public health requirements.
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