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Court of Appeal clarifies application rules for suspended possession orders to be granted

CPR 83.2(3)(e) was introduced by the Civil Procedure (Amendment) Rules 2014 (Si 2014/407) and marked a departure from the longstanding principle that no notice or permission was needed to issue a warrant. 

The Civil Procedure Rules Committee seemed to want to impose a level of judicial scrutiny over landlords who might apply for suspended possession orders to be granted without just cause. Under CPR 83.2(3)(e), the Court must review the application and ensure the landlord is entitled to enforce the order.

On a second appeal, in the case of Cardiff County Council and Lee (Flowers) [2016] EWCA Civ 1034, the Court of Appeal in a judgment handed down on 19th October 2016, gives some important clarification…

Background to the possession order case

Cardiff County Council had granted the tenant in question secure tenancy on his flat in January 2009, under s.79 Housing Act 1985. In March 2013 the Council made a claim for possession on the grounds of breach of tenancy, and nuisance and annoyance.

In September 2013, the court made an order for possession but suspended it for two years on terms that the tenant observed his tenancy agreement, including the covenants against causing nuisance or annoyance to neighbours.  In accordance with the decision in Brice & Anor v London Borough Of Southwark [2001] EWCA Civ 1138, “His rights and obligations as a tenant [were] determined at a public hearing at the time when the order for possession is made”.

In 2015, over a three-month period, the tenant came into dispute with a neighbour and the Council notified him that it would seek a warrant for possession. In August they applied, under CPR 83.26, for an order, by filing an N325 Request for Warrant of Possession of Land.

The following month, the tenant applied to the court to have the warrant stayed, but in November 2015 District Judge Scannell ruled that he had breached his tenancy agreement and that the warrant had been correctly issued under CPR 83.26.

The tenant appealed in January 2016, with HHJ Bidder QC holding that the landlord ought to have applied under CPR 83.2(3)(e) and that CPR 83.26 only applied where the court had made a simple, unconditional, order for possession with which the tenant had not complied by moving out.  He went on to dismiss the application, however, on the grounds that the court’s case management powers under CPR 3.1(2)(m) were wide enough to remedy the situation.

This has been addressed in the latest, October 2016 appeal judgment, and has set some guidelines which define how and when the CPR 83.2(3)(e) should be used.

How and when to follow the CPR 83.2(3)(e) process: key points

The October 2016 judgment highlights the following key points:

  • As a general principle, where a possession order is suspended on terms, permission to enforce the order is needed before you can apply to issue a warrant, as the order falls under CPR 83.2(3)(e).
  • If a warrant is issued without permission, that is an error of procedure which does not invalidate the issue of the warrant, unless the court orders otherwise pursuant to CPR 3.10 (a).
  • If the tenant makes an application to suspend the warrant, which the court dismisses, the court can validate the issue of the warrant without a formal CPR 83.2(3)(e) application, pursuant to CPR 23.3(2)(b). 

CPR 83.2 nevertheless constitutes an important protection for tenants. Social landlords should now be aware of the need to gain permission to apply for the issue of a warrant following a suspended order.

Following this latest judgment, courts will be less inclined to give the benefit of the doubt and may impose costs or other sanctions for a failure to comply with CPR 83.2(3)(e).

Additionally, remember it is important to gain specific admissions of anti-social behaviour if a suspended possession order is agreed.

By gaining these admissions you will add weight to any subsequent application for permission which is based on further similar anti-social behaviour.

If you would like to discuss these issues in more detail, please contact Alex Cunliffe at AlexCunliffe@lambchambers.co.uk

Case reference:

Cardiff County Council v Lee (Flowers) [2016] WLR(D) 536, [2016] EWCA Civ 1034

Alex Cunliffe / 25th Oct 2016


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