Warrants for possession

The Court of Appeal has issued a key ruling on warrants of possession and suspended possession orders. Carys Williams analyses the judgment and sets out the key points for local authorities and social housing landlords.

On 19 October the Court of Appeal delivered Judgment in the case of Cardiff County Council v Lee (Flowers) [2016] EWCA Civ 1034. The Appeal concerned a narrow point as to the application of CPR 83.2 and the requirement for permission to obtain a warrant of possession in relation to suspended possession orders. Notwithstanding the legal argument was somewhat niche, the impact of this decision upon landlords, and in particular local authorities and social housing landlords is significant.

Brief facts

The Appellant had the benefit of a secure tenancy with Cardiff County Council, and was subject to a suspended possession order granted on 3 September 2013 in the Cardiff County Court. The order was 2 years in duration and suspended on condition that the Appellant abide by the terms of his tenancy. In particular there were issues surrounding the Appellant’s alleged anti-social behaviour at this flat and nuisance/harassment caused to an upstairs neighbour.

On 14 August 2015 the Respondent Council obtained a warrant for possession using Court form N325 ‘Request for Warrant of Possession of Land’. In response, the Appellant made an application to stay and/or suspend the warrant. At an early stage in proceedings concerns were raised by a District Judge as to the method by which the warrant had been obtained. However, the application was duly case managed to a final hearing where evidence of the allegations of anti-social behaviour were tested and found proven.

At that hearing Counsel acting for the Appellant raised the application of CPR 83.2, and the fact that no permission had been obtained to issue the warrant. However, the District Judge concluded that the warrant had been correctly issued pursuant to CPR 83.26. The relevant parts of that rule read as follows:

Warrants of possession

83.26

(1) A judgment or order for the recovery of land will be enforceable by warrant of possession.

(2) An application for a warrant of possession—

(a) may be made without notice; and

(b) must be made to—

(i) the County Court hearing centre where the judgment or order which it is sought to enforce was made; or

(ii) the County Court hearing centre to which the proceedings have since been transferred.

…

(4) Without prejudice to paragraph (7), the person applying for a warrant of possession must file a certificate that the land which is subject of the judgment or order has not been vacated.

…

(7) In a case to which paragraph (6) applies or where an order for possession has been suspended on terms as to payment of a sum of money by instalments, the creditor must in the request certify—

(a) the amount of money remaining due under the judgment or order; and

(b) that the whole or part of any instalment due remains unpaid…

On appeal to His Honour Judge Bidder QC in Cardiff County Court, it was held that the District Judge had erred in the application of CPR 83.26. It was considered that this rule was directed to the simple situation where the Court had made an order for possession and the tenant refused to leave. Rule 83.2 states (emphasis added):

83.2

(1)  This rule applies to—

…

(d) warrants of possession.

(2) A writ or warrant to which this rule applies is referred to in this rule as a 'relevant writ or warrant'.

(3) A relevant writ or warrant 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

(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;

…

(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.

Whilst the Circuit Judge found that CPR 83.2 applied, he also took the view that the Court could utilise its case management powers as contained in CPR 3.1(2)(m) which allow the Court to take ‘any other step’ and make ‘any other order’ to deal with any case in a way which furthers the overriding objective, with the caveat ‘except where these Rules provide otherwise’ and grant permission retrospectively.

The Appeal

The Appellant’s position on Appeal to the Circuit Judge and Court of Appeal was that on a true construction of CPR 83.2, obtaining permission is a necessary prerequisite to a warrant being issued as the rule utilises the word ‘must’, as opposed to ‘may’ when dealing with the matter of permission. The question before the Court of Appeal was a narrow one; namely, whether permission to issue a warrant could be given retrospectively, or the requirement to obtain permission waived.

The Respondent had not submitted any cross appeal, and thus it was accepted between the parties that CPR 83.2 applied as per the Judgment of the Circuit Judge. In any event, the application of this rule was confirmed by the Court of Appeal in the Judgment of Lady Justice Arden who stated in paragraph 8

‘it is now common ground that that is the rule which applied…So it is not strictly an issue before us whether the judge was right on CPR 83.2 but I would take the view that he was clearly right to apply that rule for the reason that he gave. In other words, when the respondent obtained possession it became entitled to the remedy of possession subject to the fulfilment of the condition that the tenant did not comply with the terms of suspension. In my judgment that is how that rule should be read.’

It was commented that CPR 83.2 contains an important protection for tenants. Further, that pursuant to CPR 83.2 all landlords should in the case of conditional orders for possession have to establish that the condition entitling them to the possession has been fulfilled before the tenant is at risk of eviction from his/her home (paragraph 23 of the judgment).

In practical terms landlords ought to adopt a two-stage procedure (application for permission followed by application for a warrant), whereby the relevant information is provided to support the contention that a tenant has breached the terms of their suspended possession order.

As to the question of retrospectively granting or waiving the requirement for permission when the two stage procedure is not undertaken; the Court of Appeal found that this was an error of procedure to which CPR 3.10 applied. Accordingly, the error of procedure did not invalidate any step in the proceedings unless the court so ordered. Accordingly the warrant of possession was voidable and not void and the Court could by virtue of CPR 3.10 remedy the error. In the instant case the Court of Appeal found that the error had been remedied by hearing the appellant’s application to stay/suspend the warrant.

No specific test was laid down in relation to an application made pursuant to CPR 3.10 in this context and each application will need to be considered on its own merits. However, insight can be obtained from paragraph 31 of the Judgment in which Lady Justice Arden accepts that the Respondent in this case had made a genuine mistake. However, there may be circumstances where a tenant might not make an application to stay/suspend the warrant and conceivably possession might be obtained without the tenant having the benefit of the protection afforded by CPR 83.2. If on such an application 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, then it is almost certain that an application pursuant to CPR 3.10 would fail.

The Court of Appeal reiterated that CPR 83.2 constitutes an important protection for tenants which is not to be taken lightly. It was stated in paragraph 31 of the judgment that social landlords must ensure that their systems are such that this mistake will not be made in future. It was also commented that the Civil Procedures Rules committee might consider whether form N325 could be amended to make it clear that in certain cases permission must be sought.

Implications

It is clear that where a landlord has obtained a suspended possession order whether that be in respect of anti-social behaviour or indeed rent arrears, that is a remedy subject to the fulfilment of a condition, namely breach of the terms of suspension. Accordingly, CPR 83.2(3)(e) applies and landlords must adopt a two stage procedure, whereby permission to issue the warrant is obtained and thereafter an application made to issue the warrant.

Landlords will need to change their systems of practice so that applications for enforcement of suspended possession orders in the event of breach are issued pursuant to CPR 83.2. There will inevitably be cases currently progressing through the Courts to which this decision directly applies. In such cases landlords should make an application to the Court pursuant to CPR 3.10 to remedy the defect in procedure, or simply seek permission and re-issue the warrant.

In terms of how landlords should deal with these cases on a practical level in the future; in my view best practice would be by way of issuing a Part 23 application using form N244 with relevant evidence in support attached and a request that the matter be dealt with on the papers making reference to CPR 83.2. However, both the Rule itself and the Judgment of the Court of Appeal suggests that such formality is not strictly necessary. It may suffice to file the relevant evidence with form N325 along with a covering letter highlighting the need for permission. Clearly landlords will wish to avoid having to pay an application notice fee in addition to the fees required to issue a warrant. If at a later stage issue is taken with the way in which the procedure was undertaken, a landlord who has acted in good faith and attempted to follow the necessary procedure is likely to obtain relief pursuant to CPR 3.10 as long as there is no real prejudice to the tenant in question.

Carys Williams is a barrister at 9 Park Place Chambers. She was Counsel for the Respondent Local Housing Authority in Cardiff County Council v Lee (Flowers).