Cardiff v Lee: Permission needed to enforce a suspended possession order

Last week, the Court of Appeal handed down judgment in the case of Cardiff County Council v Lee (Flowers) [2016] EWCA Civ 1034, confirming that all landlords, whether social or private, are required to seek the permission of the County Court under CPR r83.2 in order to obtain a warrant of possession for breach of a suspended possession order.

The decision will have considerable ramifications for all landlords who will now be faced with the additional expense and delay of having to apply to the County Court for permission in those circumstances.

Background Facts

The facts are not unusual. A local authority obtained a possession order following breaches of a tenancy agreement and nuisance by one of its tenants. The order was suspended for two years on terms that the tenant did not breach his tenancy and did not cause any nuisance. However, following further disputes with a neighbour, the local authority filed an N325 and a warrant was subsequently issued by the County Court.

The tenant applied to stay the warrant which was dismissed by DJ Scannell who held that the warrant had been appropriately issued under CPR r83.26.

The tenant appealed, arguing that CPR r83.2(3) applies to suspended possession orders as it states that a warrant for possession must not be issued without permission 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.”

Upon appeal, HHJ Bidder QC accepted that CPR r83.2(3)(e) applied to suspended possession orders but held that the court retained a power under CPR r3.10 to remedy the landlord’s procedural defect in failing to apply for permission.

The Court of Appeal’s decision

By the time the case reached the Court of Appeal, it was common ground between the parties that CPR 83.2(3)(e) applied to suspended possession orders and that permission for a warrant should have been sought by the local authority. Therefore, the only issue remaining before the Court of Appeal was whether a court’s discretion under CPR r3.10 extended to remedying a failure to apply for permission to issue a warrant under CPR r83.2.

Although not strictly an issue before her, Arden LJ approved the decision of HHJ Bidder QC below and noted that CPR 83.2 provides an ‘important protection for tenants’ and that a landlord must first show that the terms of the suspended order have been breached before a tenant can be evicted from their home. Moreover, it was wrong for the local authority to apply for a warrant by Form N325 and the correct procedure would be to apply for permission under CPR 83.2.

As to CPR r3.10, Arden LJ held that CPR r83.2 does not exclude the exercise of the discretion and that a court is able to remedy a landlord’s failure to apply for permission to issue a warrant. However, Arden LJ went on to caution that the discretion was only likely to be exercised in cases of a genuine mistake in an error of procedure and not in cases where a landlord ought to have known that they should seek permission to issue a warrant.

The Effect of the Decision

For many years, Landlords have simply applied to the County Court using Form N235 to issue a warrant of possession when a tenant breached the terms of a suspended order. However, Arden LJ has made it clear that this is the incorrect procedure and permission must be sought before a warrant can be issued.

As a result, Landlords are now required to bear the additional costs and delay of seeking permission to issue a warrant in addition to the time and costs expended obtaining the initial possession order.

The decision by the Court of Appeal leaves many questions unanswered and I doubt that it will be long before this question is reconsidered by an appellate court.

Until the matter is reconsidered, permission to issue a warrant should be sought under CPR r23 and not Form N325, which is only to be used for outright orders. Failures to apply under the correct procedure in the future are unlikely to garner much sympathy from a court following the clear guidance given by Arden LJ in this decision.

Under CPR r83.2(5) permission can be sought without notice and will likely be dealt with on the papers.

However, there remains the risk that a judge may not be satisfied on the papers that a breach is made out and a further hearing could be required before permission is granted. This will leave landlords in the unsatisfactory position of effectively having a second trial if a tenant does not accept that they are in breach of the terms of the suspended order. It is therefore more important than ever to ensure that any application for permission fully particularises breaches of the suspended order, with detailed supporting evidence, in order to satisfy a judge on the papers that permission should be granted and avoid the further expense and delay of a second hearing.