District Court Case No. 2EC58592
In the Circuit Court (Civil Division) on appeal from the District Court Between:-
DECLAN HEAVEY Appellant/Defendant
v
BELINDA McKENZIE Respondent
________________________________________________________________________________ DECLAN HEAVEY’S GROUNDS OF APPEAL FOR PERMISSION TO APPEAL TO THE CIRCUIT COURT AGAINST A DECISION BY THE DISTRICT COURT TO MAKE AN ACCELERATED POSSESSION ORDER ________________________________________________________________________________ 1.
The appellant is seeking permission to appeal to the Circuit Court against an order of the District Court granting the respondent accelerated possession of a rental property. On 17 October 2012, Deputy District Judge Peart ordered (1) the appellant and his wife give the respondent possession of Top Floor Studio Flat, 83 Priory Gardens, London, N6 5QU on or before 1 November 2012, and (2) the appellant pay the respondent’s costs assessed at £175.00 on or before 1 November 2012. The appellant holds that Judge Peart’s order was unjust because of a serious procedural irregularity in the lower court proceedings and must be set aside.
2.
The appellant’s belief that his defence, dated 30 August 2012, was not read by Judge Peart when he made his order for accelerated possession is supported by substantial evidence: (1) the order states that the Judge read the written evidence of the respondent but there is no mention of him having read the written evidence of the appellant, and (2) the Judge’s order awarded the respondent her costs assessed at £175.00, but she did not ask for her costs to be paid in her application of 20 August 2012 for an accelerated possession order. No reasonable judge would have granted costs to the respondent unless he was under the impression that no defence had been filed, not to mention that the appellant had declared total means amounting to £347.54.
3.
It is acknowledged that on 11 September 2012 the respondent asked the court to make a possession order and an order of costs (not previously applied for), alleging that the appellant had not filed a defence and the time for doing so had expired. However, the respondent then wrote to the court manager on 14 September requesting that this form be destroyed because she knew the appellant had filed a defence in time.
4.
On 19 April 2012, the respondent withdrew a previous application for the accelerated possession procedure due to the “wrong information” she provided the Court, to quote from an email of hers later that day. The appellant submits that had his defence to the respondent’s latest application for same been read, Judge Peart could not have made an accelerated possession order, because: (1) respondent provided incorrect paperwork, relating to the first Page 1 of 2
and most recent tenancy agreements; (2) respondent made a false statement of truth in her claim form relating to the date of the first tenancy agreement despite having been corrected for making exactly the same false statement in her previous application for the accelerated possession procedure; (3) respondent made a false statement of truth in her claim form relating to the date of the most recent tenancy agreement; (4) respondent let the property using a threemonth tenancy agreement which does not benefit from the accelerated possession procedure. 5.
On 24 October 2012, Her Majesty’s Courts and Tribunals Service (HMCTS), Clerkenwell and Shoreditch County Court refused the appellant permission to submit an application to have Judge Peart’s order varied via the public counter because it was not deemed to be urgent. The appellant was further advised to file his application using the court’s letter box, and that the fee to vary a possession order is £40. He was not told that if in answer to section 5 of his application (“How do you want to have this application dealt with?”) he had ticked “at a hearing”, the correct fee is £80 not £40.
6.
Having been denied a counter service on 24 October 2012, the appellant received on 31 October a letter from HMCTS dated 26 October (franked 29 October), returning his application and postal order for £40 because he had not paid the correct fee of £80 (see paragraph 5 above). The appellant received this letter on the afternoon of 31 October, leaving him insufficient time to submit an application to have a possession order that was due to take effect the following day varied. Even if the appellant had been granted a counter service on 1 November, he could not have availed of it because, inter alia, he had to sign on for Jobseeker's Allowance that day.
7.
The Court is respectfully urged to grant permission to appeal to the Circuit Court because there is substantial evidence of a serious procedural irregularity in the lower court proceedings (namely, that the lower court judge never read the appellant’s defence) which has resulted in an unjust order that must now be set aside. The appellant further requests that if this permission be refused on the papers, without oral argument, his right to renew his application orally to a Circuit Court judge not be denied to him.
DECLAN HEAVEY 83 PRIORY GARDENS LONDON N6 5QU 5 NOVEMBER 2012
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District Court Case No. 2EC58592
In the Circuit Court (Civil Division) on appeal from the District Court Between:-
DECLAN HEAVEY Appellant/Defendant
v
BELINDA McKENZIE Respondent
________________________________________________________________________________ DECLAN HEAVEY’S SKELETON ARGUMENT FOR PERMISSION TO APPEAL TO THE CIRCUIT COURT AGAINST A DECISION BY THE DISTRICT COURT TO MAKE AN ACCELERATED POSSESSION ORDER ________________________________________________________________________________ 1.
As stated in the grounds of appeal, the appellant is seeking permission to appeal to the Circuit Court against an order of the District Court granting the respondent accelerated possession of a rental property. On 17 October 2012, Deputy District Judge Peart ordered (1) the appellant and his wife give the respondent possession of Top Floor Studio Flat, 83 Priory Gardens, London, N6 5QU on or before 1 November 2012, and (2) the appellant pay the respondent’s costs assessed at £175.00 on or before 1 November 2012. The appellant holds that Judge Peart’s order was unjust because of a serious procedural irregularity in the lower court proceedings and must be set aside. A copy of Judge Peart’s order is filed in the appellant’s bundle, p. 15.
2.
The appellant’s belief that his defence, dated 30 August 2012, was not read by Judge Peart when he made his order for accelerated possession is supported by substantial evidence: (1) the order states that the Judge read the written evidence of the respondent but there is no mention of him having read the written evidence of the appellant, and (2) the Judge’s order awarded the respondent her costs assessed at £175.00, but she did not ask for her costs to be paid in her application for an accelerated possession order to the Court. A copy of the respondent’s completed claim form dated 20 August 2012 (and enclosures) is filed in the appellant’s bundle, pp. 16-23.
3.
The appellant believes that no reasonable judge would have granted costs to the respondent when she did not ask for them unless he was under the impression that no defence had been filed. This is not to mention the fact that the appellant had declared total means amounting to £347.54 at the time of filing his defence. A copy of the appellant’s defence is filed in the appellant’s bundle, pp. 49-53.
4.
It has been acknowledged in the grounds of appeal that on 11 September 2012 the respondent asked the Court to make a possession order and an order of costs (not previously applied for), alleging that the appellant had not filed a defence and the time for doing so had expired. However, the respondent then wrote to the court manager on 14 September requesting that this form be destroyed because she knew the appellant had filed a defence in time. A copy of the
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respondent’s email to the court manager acknowledging that the appellant’s defence had been served upon her in time is filed in the appellant’s bundle, pp. 68-70. 5.
The appellant holds that had his defence to the respondent’s application to the Court been read, Judge Peart could not have made an accelerated possession order. Firstly, the respondent stated at section 2 of her claim form that the tenancy began on 14 January 2010, notwithstanding an undertaking to the Court dated 21 August 2012 not to harass the appellant and his wife that acknowledges that the tenancy began on 14 July 2009. (A copy of this undertaking dated 21 August 2012 and a copy of the appellant’s preceding statement to the Court following the removal of their flat door on 27 July 2012 was submitted with the appellant’s defence and is filed in the appellant’s bundle, pp. 54-56.) In support of this false statement as to when the appellant’s tenancy began, the respondent then failed to provide the Court with the tenancy agreement she cites, dated 14 January 2010, which was a fourth three-month tenancy agreement. Instead, the respondent provided the Court with a 12-month tenancy agreement dated 16 July 2010, marked ‘A’, and filed in the appellant’s bundle, p. 20.
6.
Secondly, the respondent stated at section 2 of her claim form that the most recent tenancy agreement was made on 26 July 2011, and provided the Court with a copy of a tenancy agreement that the appellant and his wife had not signed in support of this claim, marked ‘A1’, and filed in the appellant’s bundle, p. 21. In fact, the most recent tenancy agreement is the 12month agreement both parties signed on 16 July 2010. Since 26 July 2011, the tenancy has been a periodic one, on a one-month rolling basis. A copy of each of the four 3-month tenancy agreements and the 12-month tenancy agreement dated 16 July 2010 were submitted with the appellant’s defence and are filed in the appellant’s bundle, pp. 59-64.
7.
The appellant submits that the respondent let the flat to him and his wife using a written tenancy agreement that does not benefit from the accelerated possession procedure. As explained to the respondent in section 3 of her claim form, to avail of the accelerated procedure the first tenancy agreement must have been for a fixed term of not less than six months, with no power for the landlord to end the tenancy earlier than six months after it began. As the respondent had been made aware following her previous application for the accelerated procedure (see paragraph 8 below), she entered into the first of four three-month tenancy agreements with the appellant on 14 July 2009 (the day after they met), which was terminable by one month’s notice on either side. Moreover, the respondent received rent from 14 July 2009 under Haringey Council’s Housing Benefit scheme.
8.
Perhaps the fact that the first tenancy agreement was for a period of three months rather than six months explains why the respondent has repeatedly sought to mislead the Court about the length of the tenancy when it began, amounting to an abuse of process significant enough to warrant striking out the respondent’s application for an accelerated possession order. Not only did the respondent acknowledge in an undertaking to the Court on 21 August 2012 that the tenancy began on 14 July 2009, but she withdrew her previous application for the accelerated procedure on 19 April 2012 due to the “wrong information” she provided the Court on this particular point, according to an email of hers later that day. This email from the respondent acknowledges the appellant’s statement of rebuttal then filed at the court, with which he had supplied a copy of each of the four 3-month tenancy agreements and the 12-month tenancy Page 2 of 4
agreement dated 16 July 2010. A copy of this statement of rebuttal was submitted with the appellant’s defence to these proceedings and is filed in the appellant’s bundle, pp. 57-58. 9.
To summarize paragraphs 5-8 above, the appellant submits that had his defence to the respondent’s application been read, Judge Peart could not have made an accelerated possession order, because: (1) respondent provided incorrect paperwork, relating to the first and most recent tenancy agreements; (2) respondent made a false statement of truth in her claim form (at section 2) relating to the date of the first tenancy agreement despite having been corrected for making exactly the same false statement in her previous application for the accelerated procedure; (3) respondent made a false statement of truth in her claim form (at section 2) relating to the date of the most recent tenancy agreement; (4) respondent let the property using a three-month tenancy agreement which does not benefit from the accelerated possession procedure, which in itself means automatically the case is not well-founded.
10. The appellant acknowledges that if the case is well-founded and the paperwork is correct, there will be no defence available to the accelerated procedure. However, neither is the case here. Furthermore, the scale of exaggeration involved in the respondent’s claim (at section 2) establishes a cause of action for abuse of process, frivolous conduct, and conduct lacking good faith. It certainly would not have justified an award for costs in favour of the respondent had Judge Peart read the Appellant’s defence, especially taking into account that the respondent did not ask the Court to order that the appellant pay the costs of her claim. 11. On 24 October 2012, Her Majesty’s Courts and Tribunals Service (HMCTS), Clerkenwell and Shoreditch County Court refused the appellant permission to submit an application to have Judge Peart’s order varied via the public counter because it was not deemed to be urgent. (A copy of a letter from HMCTS dated 30 October 2012 confirming this fact is filed in the appellant’s bundle, pp. 65-66.) The appellant was further advised to file his application using the court’s letter box, and that the fee to vary a possession order is £40. He was not told that if in answer to section 5 of his application (“How do you want to have this application dealt with?”) he had ticked “at a hearing”, the correct fee is £80 not £40. 12. Having been denied a counter service on 24 October 2012, the appellant received on 31 October a letter from HMCTS dated 26 October (franked 29 October), returning his application and postal order for £40 because he had not paid the correct fee of £80 (see paragraph 11 above). The appellant received this letter on the afternoon of 31 October, leaving him insufficient time to submit an application to have a possession order that was due to take effect the following day varied. Even if the appellant had been granted a counter service on 1 November, he could not have availed of it because, inter alia, he had to sign on for Jobseeker’s Allowance that day. A copy of this letter from HMCTS (with the frank attached) is filed in the appellant’s bundle, p. 67. 13. The appellant would like to emphasize that he was not asking for Judge Peart’s order to be set aside, merely that it be varied to give the respondent possession of the flat on or before 1 February 2012 so that he and his wife could avoid becoming homeless. The appellant is the founder and director of Network for Church Monitoring (N4CM), established in 2011 as a non-profit company limited by guarantee. Due primarily to their difficulties with home internet access, the appellant and his wife have been successful in moving their fundraising campaign Page 3 of 4
to America, with the very real prospect of a grant being awarded to them in the New Year. They have also been nominated for an international media award for “the most important cutting edge population website ever created”. For more information about the appellant and his wife’s circumstances and prospects, please see an email the appellant wrote to the chairman of Reed on 19 October 2012 in the appellant’s bundle, pp. 30-34. 14. The Court is respectfully urged to grant permission to appeal to the Circuit Court because there is substantial evidence of a serious procedural irregularity in the lower court proceedings (namely, that the lower court judge never read the appellant’s defence) which has resulted in an unjust order that must now be set aside. The appellant further requests that if this permission be refused on the papers, without oral argument, his right to renew his application orally to a Circuit Court judge not be denied to him.
DECLAN HEAVEY 83 PRIORY GARDENS LONDON N6 5QU 5 NOVEMBER 2012
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