The law governing the process by which a gas supplier obtains such a warrant from the Magistrates’ Court, and the reasons why such a warrant can be set aside, are here: the Rights of Entry (Gas and Electricity Boards) Act 1954 (“the 1954 Act”) and the Gas Act 1986.
A gas supplier is only allowed to exercise a right of entry if, as per s.1 of the 1954 Act, consent is given by the occupier of the premises or if a warrant of entry is granted. It is under s.2(1) of the 1954 Act that the Magistrates’ Court can grant such a warrant. However, in order for a warrant to be granted, a set of requirements found in Schedule 2B to the Gas Act 1986 need to be satisfied.
If the Magistrates’ Court grants a warrant, but the consumer can show that one of the requirements was not satisfied, then the consumer has grounds to bring an interim injunction to prevent the execution of the warrant, pending an appeal to the High Court by way of case stated.
Requirements for a warrant to be granted
A warrant to authorise entry is granted under s.2(1) of the 1954 Act where it can be shown to the satisfaction of Magistrates’ Court on sworn information in writing, that:
(a) admission to the premises is reasonably required by a gas operator or its employee;
(b) that the gas operator its employee would be entitled to exercise a right of entry; and
(c) the requirements of the relevant enactment, in this case the Gas Act 1986, are complied with.
Section 8B of the Gas Act 1986 provides that these requirements are those set out in Schedule 2B to the same Act.
Under para.7(1) of Schedule 2B:
(a) a demand in writing must be made by a gas supplier for any of the relevant payments sought from a consumer; and
(b) the consumer must not have made those payments within 28 days of the demand being made
Under para.7(3)(b) of Schedule 2B, once those 28 days have expired the supplier must give 7 days’ notice of its intention to cut off supply to the premises.
Furthermore, the power of entry will only arise under para. 24 of Schedule 2B where:
- the occupier or owner of the premises is given 24 hours’ notice of the intention of the gas supplier to enter; or,
- where the premises are unoccupied and the owner is unknown to the gas supplier after “diligent enquiry”, the notice is fixed to a conspicuous part of the premises no less than 48 hours before entry
Finally, an important requirement under para. 7(5) is that the warrant should not be granted in respect of any payments where “the amount of which is genuinely in dispute”.
In
Albany Lions Hotel Ltd, Lions Pier Hotel Limited v Opal Business Gas [2020] EWHC 3872 (Admin) the High Court considered an appeal by way of case stated from a decision of the Hastings Magistrates’ Court, which had granted two warrants giving rights of entry to the appellant’s two premises under s.2(1) of the 1954 Act. After considering the above statutory provisions, Mrs Justice Foster DBE summarised their effect at paras. 14 and 15 of the judgment:
It will be seen that where, after a demand for unpaid charges, a person fails to pay the demand within 28 days a power is conferred by the 1986 Act upon a supplier to disconnect the supply of a person's gas on giving at least seven days' warning of so doing. There is also a power to enter after giving 24 hours to the occupier, or if unoccupied, to the owner in order to effect the disconnection. The power to cut off the supply is expressly not exercisable in respect of payments about which there is a genuine dispute.
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.
For a consumer faced with a warrant of entry, the requirements can be summarised in the following checklist:
- A notice in writing must have been made by the gas supplier demanding the specified sum sought;
- The consumer must have failed to pay the amount demanded in 28 days from the date the demand was made;
- The supplier must have given at least 7-days’ warning of its intent to cut off the gas supply;
- The supplier must have given 24 hours’ notice before the intended date of entry (48 if the premises are unoccupied and the owner cannot be identified); and
- There must not be a genuine dispute as to the amount owed
Procedure for setting aside a warrant of entry by way of case stated
If a consumer wishes to apply to have a warrant quashed, it should seek both an interim injunction to prevent the execution of the warrant and, at the same time, apply to the Magistrates’ Court which granted the warrant for the magistrates to state the case.
It is important that these steps are taken as soon as possible, both as the execution of the warrant will be time sensitive, but also because s.111(2) of the Magistrates’ Court Act 1980 places a strict time limit of 21 days from the date the warrant was granted for any application for a statement of case to be made.
The test for granting an interim injunction under CPR Part 25, following the principles of
American Cyanamid Co (No 1) v Ethicon Ltd [1975] UKHL 1 is a two-stage test of (i) whether there a serious issue to be tried and (2) if so, would the balance of convenience lie in granting the injunction.
Sections 111 to 114 of the Magistrates’ Courts Act (“MCA”) 1980 govern appeals to the High Court by way of statements of case. As such an application involves both the criminal and civil courts, both Part 64 of the Criminal Procedure Rules (“CrimPR”) and Practice Direction 52E of the Civil Procedure Rules will apply to any appeal.
The applicant must first apply in writing, as per CrimPR 64.2(1), within 21 days of the Magistrates’ Court’s order to grant the Warrants and the application must be served on the court office and Respondent. As stated above, this time limit cannot be extended, so it is important that the application is made as soon as possible.
The application must, as per CrimPR 64.2(2):
- Specify the decision in issue;
- Specify the proposed question or questions of law on which the opinion of the High Court will be asked;
- Indicate the proposed grounds of appeal.
It will therefore be necessary for the applicant consumer to consider what requirements under Schedule 2B to the Gas Act 1986 were not satisfied and set these out in the application. At para. 17 of
Albany Lions Hotel, the document produced by Hastings Magistrates’ Court in response to the application for the case to be stated to in respect of
Albany Lions Hotel is produced at para. 17 of the judgment. In the sections titled “Questions” examples are provided of the sorts of the questions which could be contained in a potential application
Further, any party that wishes to make representations about the application, per CrimPR r.64.2(3), may serve their representations on the court officer and the other party no later than 14 days after the service of the application.
The Magistrates’ Court may determine the application without a hearing and may refuse to provide a statement of case if it deems the application frivolous, i.e. futile, misconceived, hopeless or academic, as in
R v North West Suffolk (Mildenhall) Magistrates' Court, ex p Forest Heath District Council[1997] EWCA Civ 1575. If this were to occur, the applicant may appeal, as per s.111(6) of the Magistrates’ Court Act 1980 to the High Court for an order requiring the Magistrates’ Court to state the case.
Once the case stated has been produced by the Magistrates’ Court, the appellant notice must be filed at the High Court, as per para. 2.2 of CPR Practice Direction 52E, within 10 days of the date of the case stated.
and of course none of the above is necessary with a smart meter.
