Forced Access Oh No You Can’t

Forced Access Oh No You Can’t – Oh Yes You Can!

Joseph Warren • July 15, 2024

Recent CobbWarren court success clarifies the position on Access Injunctions

Applying for an access injunction can feel like a bit of a lottery. There’s largely no consistent approach amongst Judges about whether they can grant an order for forced entry. Some Judges simply refuse. Some say they don’t have the power to do so, while others have no problem granting force access at all.

Thankfully, we now have some clear guidance.

CobbWarren, acting on behalf of a large registered provider of social housing, has successfully appealed the decision of a District Judge on this issue.

The background is an all too familiar scenario. Our client’s tenant refused to allow access to her property as per the terms of her tenancy agreement. Our client therefore applied for and obtained an injunction. In breach of the injunction, the tenant continued to refuse to allow access. So we made an application to enforce the injunction by way of forced access.

In February, the application came before a District Judge at Gloucester County Court. They decided that the County Court did not have the power to make such an order. It lacked jurisdiction.

We appealed that decision. On 10 July, a Circuit Judge heard our client’s appeal. He agreed with our submissions that the County Court does have the power to permit forced access where there has been non-compliance with an injunction or order for specific performance requiring access to be provided.

The Circuit Judge decided that the appeal was so strong on one specific point that he did not need to consider the other arguments raised as part of the appeal.

What was our core argument? It hinged on Civil Procedure Rule 70.2A.

This allows the Court to authorise a party to proceedings to do any act that another party has failed to do (where that other party was required to do the act by an injunction or order for specific performance). Here by way of an injunction, the Court had ordered the tenant to allow our client access. Despite the injunction, the tenant had failed to do so. Through the use of a locksmith, our client had the ability to gain access and was willing to do so.

Rule 70.2A also allows the Court to order the party who should have done the act to reimburse the other party for its costs of actually doing the act.

According to the Circuit Judge, allowing forced access to the property was within the scope of Rule 70.2A. It merely permitted our client to do the thing (gain access to the property) which the tenant should have enabled under the terms of the injunction.

The Circuit Judge therefore reversed the District Judge’s decision and made an order allowing our client to force access to the property (if the tenant carried on refusing to permit access).

And so, this decision confirms beyond doubt that the County Court can order forced access.

However, there’s an important point that’s worth noting. Although the County Court can allow forced access, it’s not obliged to do so. A Judge can still decline to make the order.

But what they can’t do is say they had no power to do so.

Each application will be assessed on its own merits. Forced access may be more likely to be allowed when the reason for requiring access relates to a matter of health and safety, such as gas or electrical safety inspections or the need to carry out urgent works.

As the decision to allow forced access is a discretionary one, it’s vitally important that the evidence accompanying any application to seek forced access sets out:

· why forced access is needed,

· the potential (or actual) consequences of access not being allowed, and

· how access will be obtained – i.e. via the use of a locksmith, use of a master/spare key, etc.

CobbWarren prepared all the appeal documents and our Senior Associate, Daryl Bigwood, was the advocate at the appeal hearing. We also acted for the landlord during the initial injunction application and the application for forced access. We continue to act for them in respect of an application for committal for the tenant’s continued failure to comply with the injunction.

Please get in touch for more details of how we can help you with similar cases.

< Older Post Newer Post >

What the Crime and Policing Bill has in store

February 26, 2025

What the Crime and Policing Bill has in store for ASB and Housing Providers

Are you prepared for Awaab's law

January 23, 2025

Are you prepared for Awaab's law?

Pitch fee increases and exceptionally high RPI/CPI

By Joseph Warren • October 21, 2024

Is an exceptional level of RPI good reason to depart from an increase in pitch fees at that level? – Mobile Homes Act 1983

Positive Requirements in ASB injunctions

By Daryl Bigwood • October 14, 2024

Cobb Warren were recently successful in an appeal against the decision of a District Judge to refuse an application to include a positive requirement in an injunction pursuant to Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014 ("the 2014 Act"). This took place in October in front of a Circuit Judge in the County Court at Bristol. Our client sought to include a provision requiring the respondent to engage with support services to help address the underlying causes of the anti-social behaviour the respondent engaged in. The District Judge at first instance refused the application on the basis that such an order would amount to an order of mandamus (orders of mandamus have, since 2004, been known as ‘mandatory orders’ - they are specific to public law matters) and therefore, pursuant to section 38 of the County Courts Act 1984. The District Judge said that the County Court lacked jurisdiction to make such an order. The appeal was argued on two points: 1. The order was not an order of mandamus (or mandatory order) as such orders are remedies in public law proceedings only and not private law proceedings; or 2. In any event, even if it were, the 2014 Act creates a separate statutory scheme which enables the County Court to include any positive requirements in an injunction in order to prevent the respondent from engaging in anti-social behaviour. The Circuit Judge hearing the appeal allowed the appeal on both grounds. In respects of the second ground, we advanced an argument that the decision in Swindon Borough Council v Abrook [2024] EWCA Civ 221 supported the ground as: 1. The Court of Appeal determined that the Court’s usual case management powers to vary or set aside an order of its own volition did not apply to injunctions under the 2014 Act. This was therefore indicative of the 2014 Act creating its own statutory scheme. 2. The Court of Appeal was considering an appeal from the decision of a District Judge in the County Court and determined, at paragraph 109 of that earlier judgment that a Court should consider making positive requirements. Therefore, the Court of Appeal seemingly accepted that positive requirements were available in the County Court. Overall, we achieved a good outcome for our client and obtained clarity as to the use of positive requirements. Such requirements can often be more effective in addressing anti-social behaviour, by addressing the causes of the behaviour, rather than simply prohibiting the behaviour itself. A review of the Court's powers in relation to Anti-Social Behaviour by the Civil Justice Council in 2020 emphasised the importance of including positive requirements in injunctions. One of its recommendation was to increase their use as a way of addressing underlying issue causing Anti-Social Behaviour. If you need to discuss the above case or require any guidance please get in touch with us.

What the Crime and Policing Bill has in store

Are you prepared for Awaab's law

Pitch fee increases and exceptionally high RPI/CPI

Positive Requirements in ASB injunctions

Newsflash - Renters' Rights Bill 2024

Responding to the riots: what powers do Housing Associations have?

CobbWarren Ranked in Chambers & Partners for First Time

Renters Reform Roundup for Registered Providers