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Court of Appeal decision has immediate impact on the enforcement of suspended possession orders

November 2016

Court of Appeal decision has immediate impact on the enforcement of suspended possession orders

A recent decision made by the Court of Appeal in the case of Cardiff County Council v Lee (Flowers) has immediate consequences on the process claimants need to follow before issuing a warrant of possession where the possession order was made on suspended terms. 

Despite the widespread and long-standing practice to issue a warrant of possession to enforce suspended possession orders, without first requesting permission from the court, the Court of Appeal has stated that Civil Procedure Rule (CPR) 83.2(3)(e) applies to such cases. 

CPR 83.2(3)(e) states:  

(3) A ... 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.

BACKGROUND TO THIS DECISION

The Court of Appeal case concerned a claim for possession of a property let on an assured tenancy brought by the local authority. However, it appears that the decision will have more general application, with it also impacting secured lenders and mortgage companies.  

The main impacts of this decision will be the change to the legal process when enforcing a suspended possession order and the effect for the court service itself, which will now need to deal with what is expected to be a significant amount of new applications seeking permission to issue warrants that will need to be considered by a Judge.

In Cardiff County Council v Lee (Flowers), the claimant applied for a possession order, which was granted although suspended on terms. Upon the claimant considering that the terms of the suspension had been breached, the claimant subsequently (as was customary practice) requested the issue of a warrant of possession by filing form N325.  The defendant tenant argued that the claimant had followed the wrong procedure, because Civil Procedure Rule 83.2(3)(e) applied and the claimant had failed to seek the court’s permission to issue the warrant. 

The local authority did not argue that CPR 83.2(3)(e) did not apply in the case but accepted that it did. However, despite the applicability of CPR 83.2(3)(e) not being a point of argument between the parties on the appeal, Lord Justice Arden stated that CPR 83.2(3)(e) is an “important protection” for occupiers, saying that “when the [claimant] 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 [CPR 83.2(3)(e)] should be read.”

THE IMPACT OF THE DECISION 

Optima understands that the Civil Procedure Rules Committee is considering making an amendment to the N325 Court form (request for warrant for possession of land) to include a section in which permission of the court can be sought (if required) at the same time as requesting the issue of the warrant. Until such an amendment is made to the N325 Court form, or some other change is made, then claimants who believe that the suspended terms of a warrant have been breached, will now need to obtain the court’s permission to issue a warrant. There may be a variety of ways in which the claimant may seek the court’s permission. However, for mortgage possession claims, where a suspended possession order has been made, it appears that a two stage process will be required in the absence of any changes being made to the existing framework:

a.The claimant will need to make a court application (using Court Form N244 with appropriate supporting evidence), accompanied with payment of the relevant application fee to the court; and (provided the court makes an order granting permission); 

b.The claimant may then seek the issue of a warrant in the ‘usual’ way.

For the avoidance of doubt, this change will not affect outright possession orders which are not subject to the fulfilment of conditions.

THE COURT’S POWER TO REMEDY PROCEDURAL DEFECTS

For any warrants that were sought or issued prior to the publication of the Court of Appeal’s decision, it is likely that the courts will follow the Court of Appeal’s approach and exercise their powers under CPR 3.10 to make an order remedying the procedural defect (that is, the defect of not having sought prior permission of the court before issuing the warrant). However, it is likely that the courts are not going to be sympathetic to claimants relying on CPR 3.10 in the future, now that the Court of Appeal decision is public. 

SUMMARY

This decision represents a big change from the long-standing position that claimants could seek to enforce a suspended possession order simply by filing Form N325 to seek the issue of a warrant. 

Without amendments being made by the Civil Procedure Rules Committee to the rules or to the Form N325 and in the absence of any further binding legal authority, as well extra legal costs having to be incurred to progress affected cases it appears unquestionable that there will be a substantial lengthening of the time period between breach of suspended terms taking place and a claimant having the benefit of an issued warrant. If amendments are made to Court Form N325, stakeholders will be keen to see if those changes are rolled out into the Possession Claims Online (PCOL) equivalent of the form as well.

In the short-term, it is likely that the Court of Appeal’s Judgment will give rise to a flurry of occupiers who are facing live warrants, seeking to oppose them on the grounds of procedural irregularity. Whilst claimants can currently seek to rely on CPR 3.10 for any pre-existing instances that have yet to be decided this will not be the case for any new instances in the future.  Claimants are therefore encouraged to seek immediate advice and guidance from their legal representative.

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