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Failure to apply for permission to issue warrant of possession: error of procedure: CPR 83.2 and 3.10

Does a landlord’s failure to apply under CPR 83.2 for permission to issue a warrant of possession invalidate the warrant? No, said the Court of Appeal in Cardiff County Council v Lee (Flowers) [2016] EWCA Civ 1034.

CPR 83.2(3)(e) provides that where “under a judgment or order, any person is entitled to a remedy subject to the fulfilment of any condition, and it is alleged that the condition has been fulfilled” a warrant of possession may not be issued without the permission of the court.

CPR 83.26 provides for a party to apply for a warrant of possession. Such an application is made on form N325 and is usually dealt with as an administrative act.

CPR 3.10 states that an error in procedure does not invalidate any step taken in proceedings and the court may make an order to remedy the error.

The Claimant landlord (C) brought possession proceedings against its tenant (D) on grounds of antisocial behaviour. It obtained an order for possession, suspended on terms that D complied with his tenancy agreement. C later filed a request in form N325 for a warrant of possession on the basis that D had breached the terms of suspension.

D applied to court to stay the warrant. The court at first instance found that D had breached the terms of suspension and dismissed his application.

Before the Court of Appeal, it was common ground that CPR 83.2 applied. LJ Arden agreed, on the basis that C had obtained possession subject to the fulfilment of a condition that D did not comply with the terms of suspension. It appears, therefore, that permission under CPR 83.2(3)(e) will always be required where a landlord seeks to enforce a suspended possession order.

C’s failure to apply under CPR 83.2 for permission to issue a warrant of possession was an error of procedure. At most, it made the warrant voidable, not void. Furthermore, as C had applied for a warrant using form N325, an application which was clearly connected with, and in error for, the application for permission under CPR 83.2 that it ought to have made, the court had a discretion under CPR 3.10 to remedy the error.

On the facts, it was appropriate to exercise that discretion in C’s favour. To do otherwise would simply cause extra cost and delay while ending in the same outcome. However, CPR 83.2 provides an important protection for tenants and, if a landlord was unable to show that it had made a genuine mistake, the outcome would have been different.

Winston Jacob / 22nd Nov 2016


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