Guest post – permission for warrants of possession?

This is a guest post by Michelle Caney and Nicholas Towers of St Ives Chambers.

Anyone wanting to enforce possession orders should keep an eye on Cardiff County Council v Lee (Flowers), scheduled to be heard by the Court of Appeal on 18 or 19 October 2016, because the case could have significant implications for the practice of applying for warrants of possession in the County Court.

The gist of the appeal is that under CPR 83.2(1)(d), which came into being in 2014, warrants of possession fall within the class of warrants that may require permission to be issued. The tenant’s argument appears to be that where an order for possession is suspended on terms and the landlord alleges that the tenant has breached those terms and the suspension terminates automatically, CPR 83.2(3)(e) bites:

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”

The argument is that the warrant of possession is the remedy, and the condition to be fulfilled before the remedy becomes available is the breach of the terms of the suspension by the tenant. Thus, an application for permission must made to the Court and so any warrant issued without permission would be invalid.

This would be entirely contrary to established practice – for many years it has been accepted that the issue of a warrant of possession in the County Court can be made without notice and does not require permission. This dates back to Leicester City Council v Aldwinckle (1992) 24 H.L.R. 40 where the Court of Appeal noted the distinction between the requirement of notice and leave for a writ of possession in the High Court and its absence in the County Court:

It is true that the Rules of the Supreme Court require notice to be given, and leave of the court obtained, before a warrant of possession is applied for; but the County Court Rules do not. The court cannot write in the missing requirement, because as Lord Hailsham said in Pearlman v. Varty [1972] 1 W.L.R. 534 at p.540, it is not the function of the courts “to form first a judgment of an Act of Parliament and then to amend or supplement it with new provisions so as to make it conform to that judgment”.

Tenants have previously tried and failed to import the High Court’s requirement for notice of a warrant into the County Court under section 76 of the County Courts Act 1976, which provides that “the general principles of practice in the High Court may be adopted and applied to proceedings in a county court.”  This approach to notice (and implicitly permission) was expressly rejected by the Court of Appeal in Jephson Homes Housing Association v Moisejevs & Anor [2000] EWCA Civ 271 on the basis of the “evident continuing reluctance of the Rules Committee to amend the County Court Rules.

It does not appear that the tenant in Lee (Flowers) is arguing that the landlord must give notice of the application for permission (and thus give the tenant an opportunity to oppose its granting), but that a warrant of possession issued without permission is invalid.

This makes the question in Lee (Flowers) an interesting and subtle one: will the Court of Appeal find that by inserting CPR 83.2(3)(e) the Rules Committee has abandoned its reluctance and imposed a requirement for leave to be obtained in cases where a warrant for possession is sought after a breach of a suspended order?

If the answer is yes, this will have radical practical implications for landlords, tenants and the courts. For landlords, the consequence will be another layer of costs will be incurred in making the application in accordance with CPR 23, and the delays involved in courts granting permission.

For tenants, this would become a clear ground for challenging the validity of any warrant of possession issued without permission and it is highly likely that tenants will argue that enforcement of warrants ought to be suspended pending the Court of Appeal’s decision.

For the courts, the numbers make interesting reading. The latest Ministry of Justice Statistics Bulletin (August 2016) provides that from Q2 2016 37% of landlord possession orders made were suspended (10,406) and there were 18,186 warrants of possession issued in that period. The percentage of suspended orders which lead to warrants is not revealed, but it can be reasonably assumed to be in the many thousands. With judicial resources already stretched, the Court of Appeal’s decision could create a substantial new workload, and significant delay and expense.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Assured Shorthold tenancy, assured-tenancy, Housing law - All, Possession, secure-tenancy and tagged , .

11 Comments

  1. Pingback: Landlord Law Blog Roundup from 10 October » The Landlord Law Blog

  2. How about the courts do us on the landlord side a deal. Instead of endless last minute stay hearings and tenants being given umpteen “last chances” we have a proper process where we have to obtain permission to obtain a warrant for breach of the suspended order but the tenant has to have a proper defence with contestable evidence (some tenants seem to be grieving the loss of their 8th grandparent).

    I’m sure everyone has their own anecdote, but I’ve known tenants be granted a stay when the judge knew that the rent money had been spent on foreign holidays or cosmetic surgery. If a warrant is then granted, no stays. I think that would be just, fairer to both parties and save an awful lot of wasted time and money.

  3. Is there a full judgment anywhere yet? From the Westlaw abstract, whilst it seems as though permission is needed before the warrant is applied for, but failure to get it can be cured by the court using 3.10 (IF the tenant applies to stay the warrant), it’s not clear about the situation in which permission is not sought, no stay is applied for, and the eviction proceeds? Does the failure to seek permission assist the (ex)tenant in applying to have the warrant set aside (usually hard to achieve)?

    • I’m going on the Lawtel note – the same as Westlaw, I think. No judgment available yet. Looks like basic position is CPR 83(2) applies, so would be breach. *May* be cured by court under CPR 3.10 in some circumstances – but I’d suspect in the situation you describe, could be a set-aside of warrant (would be effectively a set aside on abuse of process principles, no?)

  4. Yup, Lawtel same as Westlaw, viz

    (1) Rule 83.2 contained an important protection for tenants. It made clear that a landlord, having obtained a conditional possession order, had to establish that the condition entitling it to possession had been fulfilled before the tenant became embroiled in an eviction from his home. The principle that r.3.10 could not be used to override unambiguous and restrictive conditions of the CPR had to be considered in the light of the facts of the instant case, Vinos and Steele considered. The local authority had requested a warrant under form N325: that was the wrong form of application. Rule 83.2 did not, however, indicate that if there was an error of procedure the court could not, in any appropriate case, remedy it; the wording of that rule was quite different from the provision considered in Vinos to have a mandatory effect, Vinos considered. Rule 3.10 expressly stated that an error of procedure did not invalidate any step in the proceedings unless the court so ordered; that meant that the warrant issued in the instant case was voidable and not void. Rule 3.10 also stated that the court might remedy a procedural error, and it had done so in the appellant’s case by hearing his application to discharge the warrant and, having rejected that application, validating the warrant despite the error. What mattered, therefore, was the substance and not the form of the application. In the circumstances of the instant case, the parties would have ended up in the same place even if the local authority had adopted the correct procedure, and extra cost and delay would arise if the court was unable to remedy the matter by using its power under r 3.10. To conclude otherwise would be contrary to the CPR’s aim of saving costs and delay.

    (2) (Per curiam) The court reiterated that r.83.2 constituted an important protection for tenants: it was not to be taken lightly. Social landlords had to ensure that their systems were such that the same mistake would not be made in future. It was to be hoped that the Civil Procedures Rules committee would consider whether any amendment could be made to form N325 to make it clear that there were cases in which permission had to be sought first.

    Doesn’t `feel’ like abuse of process (in the strict sense) to have gone straight to warrant BUT if the CA clearly now says `breach of SPO requires permission before application of warrant’ and LL doesn’t do that, and evicts, then it’s going to have to expect a risk of being hauled up for that…

    • Exactly. Hard to argue as an abuse before this judgment – error, yes. But if correct procedure has been flagged up by the court, then not following it subsequently heads into abuse territory.

  5. Agreed. Look forward to your fulsome post to come. I’ve asked 9 Park Place if they have a full judgment they can share so will send you it (if you’ve not sourced/seen one elsewhere) if I get it.

  6. Does this mean last minute applications by the tenant for a stay will be given short shrift by the courts?

    • No. Doesn’t change applying for a stay at all. But it will mean that there should be evidence of breach available at the stay hearing.

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