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  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  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.