By Paul Moulder
Cardiff County Council v Lee [2016] EWCA Civ 1034
If a Landlord has the benefit of a ‘suspended’ possession order, and it is breached, can it go straight for a Warrant of Possession, simply on application?
The Court of Appeal has confirmed that a further permission step will now be required to enforce a suspended possession order. The former practice of simply applying for a Warrant of Possession, upon breach of a suspended possession order, by form N325, cannot continue. It will now have to follow, if permission be granted, an application pursuant to CPR 23 and a request for permission, pursuant to CPR 83.2.
Facts
The tenant was granted a ‘secure’ tenancy on 19 January 2009. On 19 March 2013, the respondent made a claim for possession, on grounds of breach of tenancy, and nuisance and annoyance. On 3 September 2013, a possession order was made, suspended for 2 years, on terms of compliance with the tenancy terms. In 2015 there occurred a 3-month period, during which Cardiff alleged there were further breaches.
Thinking that the case fell within CPR 83.26, Cardiff made a Request for a Warrant of Possession (form N325). The form does not require permission from the court. The warrant was issued, notice of an appointment given and an application for stay made by the tenant.
The District Judge dismissed the application. She found that the tenant had breached the tenancy terms and that the issue of the warrant was within CPR 83.26. The tenant appealed to the circuit judge, but that appeal was dismissed.
By the time of the CA appeal, the parties were agreed that CPR 83.2 applied and that there should be a ‘permission’ stage. Cardiff had amended its procedures.
Court of Appeal
Lady Justice Arden said that the case turned 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 a suspended order has not complied with CPR 83.2?
The judgment of the Court in Southwark LBC v Brice, that the issue of a warrant was an administrative and not a judicial process had put the onus on the tenant to apply for a stay if he disputed the breach.
CPR 83.2 provided an important protection for tenants. The scheme was clear that all landlords in the case of conditional orders for possession should have to establish that the condition which entitles them to possession has been established.
In the circumstances of this case, the tenant had had the procedural protection of a hearing, on the hearing of his application for a stay. CPR 3.10, which allows a court to make an order to remedy an error of procedure, and provides that an error of procedure such as a failure to comply with a rule or practice direction does not invalidate any step, applied.
Interestingly, Lee argued that CPR 3.10 did not apply here. The submission was that the specific requirement in CPR 83.2 could not be gainsaid by a general discretion given to the court. It was argued that here no application had been made pursuant to CPR 83.2. The Court disagreed, and preferred a broader ambit to the concept of ‘error of procedure’. Clearly, the warrant of possession and the N325 application were connected in terms of procedure.
Comment
The decision is of considerable importance to landlords, both social and private, who will now have a further ‘hurdle’ to cross before obtaining possession, after breach of a suspended possession order.
Although on these facts, the court was prepared to utilize CPR 3.10, it is likely that landlords in the future will be taken to be aware of the need to now apply for permission, and of the “important protection for tenants” contained in CPR 83.2, and therefore an application for permission to apply for a warrant will be required.
