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Sarah Schooling

Posted 25 October 2016
by Sarah Schooling

Important case concerning warrants of possession



Cardiff County Council v Lee (Flowers) [2016]

http://www.bailii.org/ew/cases/EWCA/Civ/2016/1034.html

Usually, we try to give these news flashes witty headings.  We didn’t with this one because this is the sort of case that is of such importance to social landlords that we felt a jokey heading would detract from the seriousness of the consequences of this case.  Of all the cases we have reported on in the past few years, this Court of Appeal case will have the greatest impact. 

In brief, this case concerned whether a landlord (the local authority in this case but this applies to all landlords) could request a warrant of possession where there is a Suspended Possession Order without the court having determined whether the tenant was in breach first.  The answer was no.

What this means is that landlords can no longer use the N325 Request for a Warrant of Possession where they are relying on a breach of a Suspended Possession Order.  They must, instead, apply for permission for a warrant to be executed and provide evidence of the breach they are relying on.  What’s more, if, from the date of the judgement (19 October 2016) social landlords use the N325 where they ought to have applied to have the breach determined by the court, there may be a costs sanction applied to the landlord.

The detail

To quote directly from this case:-

“This appeal turns on one issue: can the court proceed to validate a warrant of possession where a landlord who seeks to enforce his right to possession because of an alleged breach of the terms of a suspended possession order has not complied with CPR 83.2? . . . The appellant, the tenant, says that CPR 83.2 is mandatory in this situation and cannot be waived.”

The case then went on to quote CPR 83.2.  This rule has been around since 2014 but has been largely ignored.  The rule applies to warrant of possessions as says, at (3):

CPR 83.2 provides: –

A (warrant of possession) must not be issued without the permission of the court where—

(e)

under the 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; or

This rule clearly applies to Suspended Possession Orders where a landlord is entitled to possession once the tenant has breached a condition of the Order.  Commonly, Suspended Possession Orders are obtained for rent arrears and anti-social behaviour and have traditionally been seen as important tenancy enforcement tool.

In this case, the tenant had, on receiving the Notice of Eviction, applied to suspend the warrant.  Evidence was produced then by the landlord about the tenant’s breaches.  The tenant’s application was unsuccessful so she appealed on the basis that the landlord had not applied for permission first.

The Court of Appeal decided that in this particular case, because of her application to suspend the warrant, had the substance of the grounds for applying for the warrant tested before a court, she had suffered no prejudice.  The judge said, of those cases where the tenant had not applied for a stay or a suspension:-

“I am however mindful that had the circumstances been otherwise the appellant might not have applied for a stay at all. Possession might have been obtained without the tenant having the benefit of the important judicial pre-scrutiny for which CPR 83.2 provides. In this case, a genuine mistake was made but if the landlord could not show that it had made a genuine mistake in its error of procedure or that it knew that it was not entitled to proceed in this way and of course if it knew that it was not entitled to possession, then the outcome of the case would have been very different. Subject of course to considering any application on its merits (and as Ms Williams submits, each case must be dealt with on its merits), there seems to me that there would be no question of the court validating the warrant. Indeed the court might well have imposed a costs sanction on the landlord whether or not it was prepared to dispense with the application for permission. I reiterate that CPR 83.2 constitutes an important protection for tenants. It is not to be taken lightly. Social landlords must ensure that from now on their systems are such that the same mistake will not be made in future. I also hope that the Civil Procedure Rule committee will consider whether any amendment can be made to form N325 to make it clear that there are cases in which permission must be sought first. Hopefully also county court offices will be able to identify cases which are not within CPR 83.26 and this will assist the bailiffs who have to carry out warrants.”

So, where does this leave us:-

From now on, if you wish to apply for a warrant based on a breached SPO you must follow CPR 83.2 which states that:-

(4)

An application for permission may be made in accordance with Part 23 and must—

(a)

identify the judgment or order to which the application relates;

(b)

if the judgment or order is for the payment of money, state the amount originally due and, if different, the amount due at the date the application notice is filed;

(c)

where the case falls within paragraph (3)(a), state the reasons for the delay in enforcing the judgment or order;

(d)

where the case falls within paragraph (3)(b), state the change which has taken place in the parties entitled or liable to execution since the date of the judgment or order;

(e)

where the case falls within paragraph (3)(c) or (d), state that a demand to satisfy the judgment or order was made on the person liable to satisfy it and that that person has refused or failed to do so;

 

(f)

give such other information as is necessary to satisfy the court that the applicant is entitled to proceed to execution on the judgment or order, and that the person against whom it is sought to issue execution is liable to execution on it.

(5)

An application for permission may be made without notice being served on any other party unless the court directs otherwise.

(6)

If because of one event, an applicant seeks permission under paragraph (3)(b) to enforce more than one judgment or order, the applicant need only make one application for permission.

(7)

Where paragraph (6) applies—

(a)

a schedule must be attached to the application for permission, specifying all the judgments or orders in respect of which the application for permission is made; and

(b)

if the application notice is directed to be served on any person, it need set out only such part of the application as affects that person.

The form to use is Form N244 and the fee is £255.  This is just the application for permission.  If permission is granted, there is a further fee to pay for the warrant.  The landlord will need to file their evidence in the form of a witness statement plus any other evidence at the time of making the application.

There will probably be a hearing although the court may decide the case without a hearing if it considers it appropriate.   This may be the case with rent arrears cases although, we suspect, initially, all these sort of cases will be listed for a hearing.  If the events relied upon by the landlord for the breach are disputed by the tenant, the court may well adjourn the case for a full trial at a later date.

For possession orders made on mandatory grounds, landlords must still use N325 as there is no ability for a tenant to apply to suspend warrants following mandatory possession.

If you have already requested a warrant using N325 for a Suspended Possession Order but it has not yet been executed, any application by the tenant to stay or suspend will enable the reason behind the warrant request to be aired so be ready to submit evidence to justify the warrant.

Where the tenant does not apply, it is open to the court to set aside any eviction.  In other words, there is a risk that post eviction; the tenant will apply to set aside the eviction based on CPR 83.2 not being followed.  If the failure to follow the procedure is because of a genuine error on the part of the landlord (e.g. they were not aware of the rule), they might be lucky.  On the other hand, the court may view it as an “abuse of process”.

Our advice is that if landlords want to enforce a Suspended Possession Order, they should make that application under CPR 83.2 now even if their warrant request is already in.  For those who do their own advocacy, print out and understand the decision.  The link to the decision is at the top of the first page.

 

Further advice
Please contact our specialists Simon Sanger-Anderson, Sarah Schooling, Jenny Lloyd or Adele Atkinson at Broadwalk House, Southernhay West, Exeter EX1 1UA
call: 01392 207020 or email: has@tozers.co.uk

Tozers LLP’s bulletins are no more than an immediate response to a recent decision (or other legal development), on a selected basis, intended to help recipients keep up-to-date with information which may interest them without needing to await publication of more considered material.  Recipients should, therefore, seek advice on any specific matter if proposing to take action in consequence of any such bulletin.

 

 

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About the author

Sarah Schooling

Sarah Schooling

Associate

Associate within the housing management team with over 10 years experience