You can't get rid of me that easily


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In Kirby v Salvation Army Hostel Association (2018), the Queen's Bench Division considered whether a resident who failed to pay licence fees was entitled to an injunction preventing his eviction.

Mr Kirby occupied a room in a hostel run by the Salvation Army. He failed to make payments and accumulated £13,000 of arrears. Consequently, the Salvation Army served a notice to quit.

Mr Kirby made a successful application to the High Court, with the assistance of a McKenzie friend and without notice being given to the Salvation Army, preventing his eviction until the return date or further order. However, the Salvation Army still evicted him so Mr Kirby obtained an order for reentry into the hostel, and the Salvation Army allowed him back in.

At the final hearing, Mr Kirby was not present, however his McKenzie friend made representations on his behalf. He accepted that the accommodation was occupied under a licence which was excluded from the Protection from Eviction Act 1977 but argued that the injunction should continue as the threat of eviction amounted to harassment. The Salvation Army argued that the injunction should never have been granted.

The Court held that there had been no proper basis for granting the injunction and it was set aside. The Court found that the judge who granted the injunction may have been misled in respect of his powers. The Court also recognised that the only option in light of the non-payment of licence fees was to terminate the licence. In addition, it was not the Salvation Army's responsibility to complete a housing benefit application for Mr Kirby which had been his argument.

Importantly, it was held that the application for an injunction should not have been issued in the High Court as the value threshold for issuing there was not met. The Court pointed out that had the matter been before the County Court, then the limits of the Court's power in a case of threatened eviction would have been recognised.

Finally, the Court pointed out that a McKenzie friend was considered as an assistant and could not assist an absent litigant as a court could not be satisfied that what a McKenzie friend did on the party's behalf was authorised by the litigant. Although the Court was satisfied that Mr Kirby's interest would otherwise have been seriously prejudiced if the McKenzie friend had not made representations on his behalf, it was held that at future hearings a court could not hear submissions from a McKenzie friend in the absence of the party.

Thankfully, this case was most probably an anomaly that is not likely to be repeated. However, it is helpful to have a judgement in relation to the use of McKenzie friends as these can often prove problematic.

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