Episode 1: Understanding Access Injunctions

[Music]

Michael

Hello and welcome to this episode of the Sharp Five Podcast. Today we're talking about access injunctions. And joining us is Freya McLoughlin, a barrister from Five Paper, working in commercial and property law, and Angelica Botta, an associate in our litigation team at Sharp Pritchard.

Angelica, please can you start us off? What is an injunction?

Angelica

Well, it's not an easy question, but in summary, it's an order that the court can order for a party to either do something, and that will be a mandatory injunction, or stop a party from doing something.

There are quite a few things that parties need to do before asking for an injunction. So, Freyja and I today will go through a few points so people will know what to do next time they need to request an injunction.

Michael

And why is it that people might use an access injunction?

Angelica

So, the main reason we see, especially in disrepair cases, is when tenants do not provide access, they commence disrepair cases and then they refuse access for other investigations or for works to be carried out, as well as leaseholders. Especially in London, one of the main issues is leaks coming from flats above, and many are leaseholders. So, the landlords will need access to the property in order to investigate the leak, stop the leak, and then do the works in the tenanted property.

Freyja is going to cover another couple of points as well.

Freyja

Yes, thank you, Angelica.

It's also interesting that despite the fact in the pre-action protocol for disrepair cases, tenants do need to continue to allow access. Quite often it appears that they think denying access will allow damages to run up higher, but perhaps that's us having a cynical view of the situation.

Other situations where particularly social landlords require injunctions is in order to comply with their legal obligations to carry out gas checks and electrical checks. Gas checks need to be carried out every year, and electrical checks need to be carried out every five years. And often you find that tenants aren't allowing access for these checks to take place. So, bread and butter of junior barristers is typically going to court to obtain these gas and electrical injunctions.

Michael

And how does that bread and butter of injunctions work exactly?

Freyja

So typically, the client, which is normally the landlord, will make an application to the court on an application form for an injunction and that form is an N16A. It's a part 8 claim form, and you need to always include the draft injunction order which specifies what the order you're asking the court to make is. The court will typically serve the papers, and they should send you a notice of issue, which records the date that they served the papers and the date it will be deemed served on the tenant. The defendant needs at least three days’ notice, although there is provision in the CPR to shorten this time period. Quite often judges are reluctant to do the same because three days isn't a particularly long period of time. And what's important to remember, which Angelica and I have found in practice, people quite often don't realise, is the papers don't need to be personally served. There's no requirement for a certificate of service demonstrating personal service.

And what is different is that the order itself does need to be personally served, because typically it will include a penal notice at the top. So, the penal notice means that if it's breached, committal proceedings can be started, which Angelica and I will touch on later. But it is important to make sure that any order, once given, is personally served. But if you think the tenant isn't going to engage, which is often why these injunctions are required in the first place, you can ask the court to dispense with personal service and ask for service to be deemed proper service via the letterbox.

Angelica, what do you think about witness statements in an application?

Angelica

Under with CPR, a witness statement is not required, but I would strongly advise to include one, setting out all the attempts you made to gain access, if a landlord has considered the tenant's circumstances such as mental health issues, if there are any language barriers and issues the tenant may have, and in case an assessment of a situation. As we will discuss later, evidence is key to an injunction, so I strongly advise to include a witness statement setting out the attempts made.

And I think this will determine the outcome of the first hearing, and Freyja obviously has more court experience, so may jump in, but you may get an injunction of a first hearing – the first hearing is usually just a 10-minute hearing. It may be refused, but also it may prompt the tenant to provide access, which is what the landlord wants at the end of the day. So, what we see is very often the force hearings are adjourned because the tenant seems to be engaging.

Freyja

I would agree with that, although I have had all day trials which come from an access injunction where the tenant continually refuses access, although on their case they won't be refusing access, access will be unreasonable and you end up in court all day on the same. And sometimes in those circumstances it's helpful to consider an undertaking which can be given by the tenant just to avoid legal costs, because obviously an all day trial is expensive and if the tenant agrees to provide access or if you can have an arrangement that works with both parties, an undertaking might be the way forward.

Angelica

And in relation to costs, I think a good point following up on that is you may get costs from the court, but how likely are you to actually receive costs from the tenant? So, you need to consider if it's a commercially viable option to start injunction proceedings or, as Freyja mentioned, undertaking maybe the best way forward.

Freyja

Something that can be helpful with cost orders though, especially in the context of disrepair, is if you get a large or even any cost order following an injunction, you can set that off against any damages that the tenant might be owed pursuant to the disrepair. So, we'll talk later about how important it is to really demonstrate your attempts at access and disrepair cases. But having a hefty cost order that you could set against any potential damages sum can really encourage settlement.

Michael

And what about representation in these common cases, Angelica?

Angelica

We see very often, when tenants commence disrepair cases, they are represented. But then when we ask representatives whether they're going to represent the tenants for injunction proceedings, they say they do not. So, it's very important to clarify these before issuing proceedings to make sure you serve the right party.

Michael

And I suppose we've talked a lot about the process, but it would be remiss of us as three lawyers not to talk about the law. What's the law governing access injunctions?

Freyja

So, the law itself is relatively simple. The Senior Courts Act 1981, Section 37, says the High Court may by order grant an injunction in all cases in which it appears to the court to be just and convenient to do so. And it's Section 8 of the County Courts Act 1984, which applies that same test to the county courts. So, in short, you need to demonstrate to the judge that it's just and convenient for the injunction to be granted.

Most tenancy agreements will typically have a clause that requires access. So, in those cases, you're demonstrating that you're enforcing a contractual right. It's very standard for almost all tenancy agreements to include the same, and often they include a forced access provision, which we'll talk about later. But if your tenancy agreement doesn't include any access provisions, Section 11 of the Landlord and Tenant Act implies into tenancies the right for the lessor to enter the dwelling on 24 hours’ notice to the occupier for the purpose of viewing the condition and carrying out repairs. So, they're your three gateways as such that you need to show to the court when you are attempting to obtain an injunction.

Michael

Is there anything that you need to demonstrate to obtain or exercise that right?

Angelica

Yes, you need to show you tried to gain access before commencing injunction proceedings. So, it has to be in writing. Usually, tenancy agreements and lease agreements will specify how notice has to be given and how much notice has to be given. So, make sure you read the tenancy agreements and the lease agreements before sending letters. But what we recommend is always make appointments in writing, attaching, if it's possible, a scope of the works to demonstrate what you want to carry out. If possible, a timetable so the tenant knows when each item is going to be carried out, and obviously why you need access.

And what Freyja and I have been discussing is the difference between sending letters informing them of access and access not being provided or calling the tenant asking for their availability. And there is a bit of a difference, so I wanted Freya to explain how the court deal with this difference.

Freyja

Yes, so I suppose it comes back to that just and convenient point. You need to convince the judge that it's just for this injunction to be made. And in effect, an access injunction is quite a draconian remedy in that you're asking the court to, in the cases of forced entry, allow you to force entry into somebody's home. And I mean, it's a controversial topic, and some judges describe people's homes as their castles, etc. And therefore, you need to show you've tried everything before you're asking the court to just let you barge your way in.

So as Angelica said, as many appointment letters which clearly set out what works need to be done, the schedule of works, how long it's going to take, what area of the property you're going to need access to, and a time period of when you're going to arrive during the day is really important.

And what that isn't is simply ringing up the tenant and saying, oh, when can we come round to do the works? And them not answering that phone call or not giving you an answer of what date works isn't a breach of their tenancy agreement, and it's very unlikely the court will find that it's just inconvenient in those circumstances to grant an injunction. You need to show as the landlord that the burden is on you, and you are reaching out to the tenant to try and arrange these works. We'll talk about the case law a bit later on, but I found in practice that judges often say, if it was your home, you would want to know who was coming in, why they were coming in and what they were going to do. You wouldn't just be happy with them saying, we’re turning up at 9am tomorrow and we'll be there for however long it takes us. Which I think when you think about it in the practical sense, if it was you and you were receiving these letters, is there enough notice and is there enough detail for you to grant the access that's required?

And what we always say to our clients, and Angelica and I have this as a problem quite often, is how important records are. So, keep your letters, keep the proof of service of the letters, keep photographs of your contractors attending on the day, at the right time, on the right date, being able to identify themselves, knocking on the door and not being granted access. And if you call, make sure you've got a call log which shows when you called, if they answered. And if they fail to give access, you need to make sure, as I've said, you have evidence of this. Don't just put in your repairs logs, appointment cancelled, because that doesn't help us when we're at court to demonstrate why the appointment has been cancelled.

Angelica

And I think consider as well asking the housing officer for assistance. They may have a closer relationship with tenants, they may have a trust, they can talk to them, explain why access is needed, and you may not need an access injunction. If you do, you can again have the record showing you tried different methods of engaging with a tenant, and it's going to strengthen your case.

And I actually had a question for Freyja. We tend to ask clients to make at least three attempts before considering an injunction. Do you think the court's opinion is that three attempts are enough, or would you say more are needed?

Freyja

I think three attempts at least is the right message to be passing on to clients. Three attempts at access, and typically people send sort of a pre-action letter saying, if you don't give access, we're going to commence court proceedings. I think we need to keep in mind that it does cost the housing associations time and money to be reaching out to tenants and making appointments and having the appointments fail. So, although it's easy for us to say, do everything you can, go above and beyond, we do need to keep in mind the commercial sensibility of the same. And if you've made three attempts, contractors have attended three times and have charged the landlord three failed appointment fees, they aren't going to want to keep attending on the off chance one day the tenant might open the door. So, I think three is a good rule of thumb.

Angelica

So basically, please keep all the evidence with you so that all these attempts are not useless.

Michael

So, you've both spoken about quite a lot of burdens that are on landlords and seeking injunctions, and kind of the correct reasons as to why they're in place. So, I suppose the natural question that might flow from that is why else might an injunction be helpful? I mean, is it worth all those efforts being expended?

Freyja

I agree, Michael, we probably have come with a lot of negativity towards our landlords today! But injunctions are incredibly helpful and sometimes almost a complete necessity if, at trial, you want to run a defence, at a disrepair trial, this is, if you want to run a defence based on the failure to give access, you need to demonstrate that as the landlord, you've taken as many steps as you can to obtain access.

And if you can demonstrate that and you make it out, the rewards can be plentiful. So, the case that is often referred to is English Churches Housing Group v Shine, which is the 2004 case where the tenant Mr. Shine was described by the Court of Appeal themselves as extremely difficult in that he always refused access, there was an injunction, et cetera, et cetera. But eventually when it got to trial, the court reduced the damages by 75% to take account of the fact that the works could have been done quicker and that is when they'd obtained an injunction.

So, when you think about in these disrepair cases when the damages can run easily into six figures, a 75% reduction on the same is really really helpful. And then a more recent case of Godagama & Edirisinghe v Hanson which is just a county court case but it's the judgement is accessible and is often referred to in disrepair trials, was where a defence was based on lack of access, and the landlord said we haven't done the work because we couldn't obtain access. But the judge was quite critical of this approach and said that ‘tenants are entitled to know the general nature and purpose of the works to be performed. And the claimants did not, in my view’, so the judge's view, ‘make a serious attempt to gain access or plan the works that were needed after no proposed schedule of works was provided’. And the judge also said, ‘for the claimants to excuse their failure to remedy the defects, one would have expected to see a series of requests and refusals to give access over a substantial period of time. I would have expected more than one occasional text or e-mail seeking to obtain access. And I have not seen any proper or formal assertion by the claimants of a right to access. and the consequences of any continued refusal or a description of what works were intended to be carried out’.

So, in that case, the defence of failure of access failed because the judge basically thought that the landlord's attempts weren't serious enough, which perhaps is understandable. But in reality, we all know how difficult it is to keep records and to make sure when you've got a very hefty caseload, that you're keeping these detailed logs in every case. But preparing for an injunction ensures that all those logs are in place. and obtaining an injunction will show to the judge that the tenant's conduct has been so unreasonable that another judge has had to grant an access injunction. And in those good case scenarios, you can get damages extinguished by 75%, 100%, the number is endless. And I suppose we've already talked about how the costs order in an injunction can then be set off against the damages, which can be helpful.

And then finally, I suppose a more practical perspective of the same is if you have got disrepair in a property, such as a leak that Angelica referred to earlier, the longer that goes on, the more damage that your property is going to have, and potentially properties below it, to the side of it, etc. And maintaining that asset, your housing stock, is of vital importance to housing associations and landlords. So, obtaining access, although it may be expensive in the first case, if you can then get in and stop your asset from declining further, I think that's a very important step that landlords will want to take.

Michael

So, you both helpfully line out the steps that a landlord would have to take to get an injunction. Let's assume we've done all that, and we've been granted that injunction. Can I use that to force access on the property?

Angelica

That is very controversial and judges tend to change their minds a lot. Freyja is going to cover four or five cases over the past couple of years that show how judges approach forced access.

Freyja

Yes. So, in short, no. If you just have an access injunction that says X must give access to Y property between these hours, no, I would not suggest anyone then forced access using that paragraph, typically paragraph one of the order. But in draft orders, you often include as paragraph three or two, that if the tenant is in breach of paragraph one, the landlord has the right to forced access between certain hours of the day.

As I referred to earlier, normally the tenancy agreement allows for this forced access provision. But even when it's a contractual right in the tenancy agreement, there's very mixed judicial opinions as to if the court has the right to do the same. Unfortunately, at the moment, there isn't any higher authority. There was a circuit judge decision in 2024, but the decision that lots of judges refer to is the decision of District Judge Cridge, who sits in Bromley County Court last year, in Southern Housing v Emmanuel, and that's a very long judgment. But the bottom line of it is that he says, ‘in my decision, no judge can give a landlord permission to force entry into their tenants' homes for things like inspections, repairs and safety checks. I think Parliament would have to change the law before a judge can make that kind of order’. So Cridge was very clear that no judge has the authority to order forced access, and that you have to go down the committal route, which is expensive, time consuming, and often doesn't give the result that you want, because landlords don't want their tenants to be facing committal proceedings, which ultimately, although rarely, could result in imprisonment. They just want access to the property. But Cridge's judgment is very detailed, it's very long, and most judges have read it. For example, I was in Bromley last week and even after hearing my detailed and persuasive submissions, the judge said, ‘I've read something housing in a manual I'm not granting forced access’.

There are other decisions that go the other way. So, Taylor Clarke Ltd v Mohammed is a judgment of District Judge Le Bas, who sits in central London. That was this year. And he said that CPR 70.2A, which when there's a disobedient party, lets another party carry out the act, does give landlords the right to forced access. And in Plymouth Community Homes v Lee Hammond, which was just a few months ago, the judge in that case agreed with District Judge Le Bas and said that CPR 70.2A could be used. In Plymouth Community Homes, the judge did say that CPR 70.2A needs to be pleaded on the claim form, which I think is important to remember. So, you could put in the alternative to the contractual right to access, we rely on CPR 70.2A in that the tenant will be a disobedient party if they do not allow access in accordance with the access injunction. It's not a very helpful opinion for clients, and I think we both acknowledge that. But in short, you're in the judge's hands. Until there's a higher authority on the same, judges seem to have their own opinions. And you can take them through the various case law, but I often find that they've heard these submissions before, and they know their opinion on the law. And it depends on what judge you have and what court you're at.

Michael

Thank you, Freya. That was a good rundown of the issues of forced access. Well, thank you both for a very practical guide about how landlords can go about seeking to obtain injunctions. And I think you're both following up with an article setting all those steps out. Is that right?

Angelica

Yes, we are.

Michael

So, if you want to have a little bit more detail on what you've heard today, you can read that when it's up on our website at a later date. So, all that leads me to say is thank you to Freyja and Angelica for today's episode. And thank you all to those of you listening to this episode of Sharpe Five.