Wed, 29 Mar 2023
You may recall my article highlighting the difficulties with the Rights of Entry (Gas and Electricity Boards) Act 1954 which can be accessed here.
In this article I highlighted that the Act is limited in scope and did not offer much guidance on how the Act is to be interpreted and applied. There has also (until my case below) been no judicial guidance on the correct application. The Magistrates Court Guide provided little assistance either.
Under the legislation there is no automatic right for an affected party to apply to the magistrates to apply to stay or adjourn the execution of the warrant.
Accordingly, where a warrant has been granted and the energy supplier wishes to enforce promptly and enter the premises, the only option may be to obtain urgent injunctive relief preventing the warrant from being executed.
You will recall from my previous article that in Albany Lions Hotel Limited, Lions Pier Limited -v- Opal Gas Limited such an injunction was granted (HHJ Pelling QC) and continued until the underlying energy dispute between the parties was determined.
However, in Albany not only was injunctive relief obtained but an appeal by case stated was made against the decision of the magistrates. In Albany a Solicitor attended the magistrates court hearing and made representations that there was a genuine dispute and the warrant should not be granted. Despite these representations (and a solicitor attending) the warrant was granted anyway.
As part of the appeal by case stated the Court was asked to provide guidance on how a magistrate must be satisfied before granting such a warrant.
We were successful on the appeal and Mrs Justice Foster DBE in Albany Lions Hotel Ltd v Opal Business Gas [2020] EWHC 3872 provided some very helpful guidance:
“The power of entry is itself not exercisable, however, without the support of a warrant issued by a magistrate. For that warrant to issue, the magistrates must be satisfied of a number of matters: (a) That sworn information is before them to the effect that admission to premises specified in the information is reasonably required by a gas operator under the Act and contains certain details; and (b) that the gas operator is entitled under the Act to exercise a right of entry to the premises in question, (i.e. that there had been proper notice to the occupier of the premises in question, demand, and failure to pay in the absence of a genuine dispute). These are jurisdictional facts of which the magistrates must be satisfied before granting what is the draconian remedy of non-consensual entry to premises and disconnection of a gas supply.” (Para 15)
And on the issue of whether or not there is a ‘genuine dispute’:
“The case shows that there was a dispute as to the amounts owed. The fact is that evidence was advanced and yet the case does not indicate how or why that dispute was determined not to be genuine, nor what the magistrates understood by the phrase in its statutory context of "genuine dispute". In my judgement, that phrase must mean a dispute that is not shown to be a sham. In other words, the magistrates must be satisfied that any dispute to which a respondent makes reference has not been concocted or is a mere evasion tactic. If the respondent raises the existence of a genuine dispute, the magistrates must grapple with the question and decide it. Only if their view that it is not genuine is not a view reasonably open to a properly directed bench of magistrates would it be successfully appealable by way of case stated. Here they asked themselves the wrong question. It is not relevant also to ask, as they did, is it also "substantial". (Para 35)
As a general observation, in my judgement, in order properly to consider a contested application, it will generally be necessary to take evidence in opposition on oath and to consider any documentation presented in some detail. Where the jurisdictional facts are in issue, the justices must show, in their case stated, what evidence they have taken into account and what evidence they have rejected in order to expose the reasoning process that produced the answers which they give.
(Para 43)
These observations are made recognising the enormous burden of work that falls upon magistrates. I am conscious that time pressures are considerable. It is not every case that will produce complexities. I should say, furthermore, the relevant part of the Magistrates’ Court Guide is not of great assistance to the Bench or their hard-pressed clerks. The wording relating to guidance on warrants that I have been shown does not reflect accurately the obligation to consider each of the requirements under statute of which they must be satisfied, before a Warrant may be issued.”
(Para 44)
There have been a lot of observations in the Press in the last 24 hours that energy suppliers have been misrepresenting the facts to the magistrates to obtain the warrant.
This may be the case, but It also needs to be ensured that the magistrates themselves are testing the matter properly and not simply treating the grant of a warrant as simply a ‘rubber stamping exercise.’
Maria Mulla appeared for Albany Lions Hotel in the injunction, in the appeal by way of case stated, and in the proceedings in the underlying dispute itself. Maria was instructed by Leonard Scudder of Berkely Rowe. They both may be contacted for guidance on any similar issues.
