Evidence is emerging that County Court Bailiff’s and now High Court Sheriffs (or High Court Enforcement Officers or HCEOs to give them their correct name) are declining to enforce warrants and writs of possession.

This is all based on guidance apparently emanating from the Lord Chancellor which Bailiffs claim to have but refuse to provide copies of. I had already been told by Bailiff’s in Liverpool that they would not enforce warrants of possession based on guidance from the Courts and Tribunals Development Directorate and referring to a speech from the Secretary for State for Housing and Local Government in which he stated that evictions would not take place in areas of local lockdown and also talked about a “Christmas Truce” from 11 December to 11 January. The Minister for Housing said something similar on 22 October in a written statement in which he said that “Bailiffs should not carry out evictions in tier 2 (high) and tier 3 (very high) local COVID alert areas”.

It appears that a similar position is being taken by HCEOs as the High Court Enforcement Officers Association has publicised a letter received from Robert Buckland, the Lord Chancellor, asking them not to enforce writs of possession in areas with Tier 2 and Tier 3 lockdowns.

The problem with all of this is that it is almost certainly unlawful. It is not open to Bailiffs or HCEOs to simply decline to enforce warrants and writs, even if the Lord Chancellor asks them to do so. They have a duty to do this. Indeed, there is a power to complain to the County Court, in the County Courts Act, about losses resulting from Bailiffs not enforcing warrants.

The other attempted justification being advanced by some Bailiffs is that the lockdown regulations prevent them evicting as it would require two households to be in the same property. However, the lockdown regulations contain exemptions for persons doing their jobs and for those fulfilling a legal obligation. There is also an exemption permitting people to move home so tenants can move voluntarily without violating the regulations.

Finally, this approach also flies in the face of the new structures created around the re-opening of the courts for possession. There was a compromise made between all stakeholders around proceeding with evictions in a controlled manner, targeting those in which tenants were responsible severe and unjustified rent arrears and anti-social behaviour. This is all a little bit pointless if the government is going to bypass this arrangement by barring evictions in some areas.

Naturally, evictions creates hardship for those being evicted, probably more so right now. However, leaving tenants in huge arrears in place also creates hardship, for those tenants too as the debt will follow them, while leaving tenants who create anti-social behaviour in place creates hardship for those around them. Of course the government can prevent evictions if it wishes to. But it should do so lawfully by making regulations under the appropriate legislation and allowing Parliament to review them, not through backdoor letters to enforcement bodies.

I have already offered to seek judicial review on this on a “no win, no fee” basis for affected landlords but so far there are no takers.