We foreshadowed this appeal hearing here, and now we have the Court of Appeal judgment. And it is important.
Cardiff City Council v Lee [2016] EWCA Civ 1034
The sole issue on the appeal was:
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 the terms of a suspended possession order has not complied with CPR 83.2? That non-compliance consists of failure to apply to the court for permission to issue the warrant with the result that he did not provide the court with information which is required to be given on any such application.
The specific parts of CPR 83.2 at issue were 83.2(3) and (4):
(3) 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; (…)
(4) An application for permission may be made in accordance with Part 23 and must—
(a)identify the judgment or order to which the application relates;
(b) if the judgment or order is for the payment of money, state the amount originally due and, if different, the amount due at the date the application notice is filed;
The appellant tenant had a suspended possession order relating to ASB. The order was breached. Cardiff applied for a warrant on form N325 which requires certification by the Claimant that:
the defendant has not vacated the land as ordered (*and that the whole or part of any instalments due under the judgment or order have not been paid) (†and the balance now due is as shown)
The tenant applied for a stay of the warrant. This was dismissed by the District Judge on the basis that there had been a further breach of tenancy and that the warrant was properly issued under CPR 83.26.
The tenant appealed. The Circuit Judge apparently held
that a landlord requires the court’s permission before a warrant for possession can be requested. The judge considered that CPR 83.26 was directed, as far as landlord and tenant cases were concerned, to simple situations where the court had made an order for possession and the tenant had not complied with the order and had remained in possession after the date for possession and has refused to leave. CPR 83.2 applied to particular types of warrants of possession (see 83.2(1) and (2)). The particular types of warrant of possession to which it applies are described in CPR 83.2(3) and they include in paragraph (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”.
And
So the respondent had to show that it had informed the court (among other matters) that the appellant had breached the terms of suspension. (…) there ought to have been a two-stage procedure (application for permission followed by application for a warrant)
However, the appeal was dismissed, as the Council had provided the relevant information at the stay hearing before the District Judge.
Moreover, on the authority of this court in Southwark v Brice, the substantive determination of the appellant’s rights took place at the hearing where the suspended possession order was originally made. So, in the judge’s judgment, to hold that the court could not grant the application for a warrant would fetter the landlord’s accrued right to possession. At most the defect in procedure made the warrant voidable, not void, and it is within the court’s case management power (CPR 3.1(2)(m)) to remedy the situation, given that CPR 83.2(3) does not provide otherwise. The result was not unjust as DJ Scannall had fully considered the appellant’s case. The only effect of the order being invalid would be that the landlord would have to go through the eviction process again by obtaining permission and issuing a fresh warrant.
The tenant brought a second appeal to the Court of Appeal.
It was apparently common ground between the parties that CPR 83.2(3) was the relevant rule for obtaining a warrant for breach of a suspended possession order! Nonetheless, the Court of Appeal in Lady Arden’s judgment expressly confirms that this is the case.
In my judgment Ms Walters is right to say that despite its opaque language CPR 83.2 contains an important protection for tenants. After all, the landlord may not be a social landlord which uses eviction as a measure of last resort but a landlord who is unscrupulous and wishes to take advantage of a claimed breach of a suspended order when that cannot be substantiated and would not pass judicial scrutiny. The scheme of CPR 83.2 is clear that all landlords should in the case of conditional orders for possession have to establish that the condition entitled them to the possession has been fulfilled before the tenant become embroiled in an eviction from his home.
The issue on appeal was whether the court’s powers under CPR 3.1(2)(m) or 3.10 allowed the court to grant permission for a warrant after the event, or to waive the CPR 83.2(3) requirement.
Th tenant argued that the language of CPR 83(2) was mandatory and thus excluded any power to made an order superseding the defect under CPR 3.1(2)(m). On CPR 3.10, which provides:
Where there has been an error of procedure such as a failure to comply with a rule or practice direction –
(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and
(b) the court may make an order to remedy the error.
the tenant argued
that the error that was made in this case was indeed “an error of procedure” but that CPR 3.10 does not apply because of the mandatory language of CPR 83.2 which provides protection for the tenant and which cannot be waived. She relies on the principle established in Vinos v Marks and Spencer PLC [2000] 3 All ER 784.
The Council argued that
the appellant has suffered no prejudice and it was therefore appropriate for the court to allow the warrant to be issued. She submits that if the judge had decided that he had no power to grant permission for the issue of the warrant or to waive the issue of the warrant at the later stage when the appellant’s rights had been determined, the respondent would simply have had to issue a new application and “we would have always ended up where we ended up.” CPR 3.10 was specifically designed to deal with errors of procedure and what happened here was simply that. She accepts that every case under CPR 3.10 would have to be considered on its merits.
The Court of Appeal held on CPR 3.10
I have already set out the wording of CPR 3.10. The Rule expressly states that an error of procedure does not invalidate any step in the proceedings unless the court so orders. That means that the issue of the warrant was not invalid unless the court so ordered. The issue of the warrant was therefore voidable and not void, as the judge correctly held. CPR 3.10 also states that the court may remedy the error. Here it has remedied the error by hearing the appellant’s application to discharge the warrant, and, having rejected that application, validating the warrant despite the error in procedure. I appreciate that there was no such application as is required by CPR 83.2. That application may be made by an application under CPR 23 but CPR 23.3(2)(b) states that the court can dispense with the making of an application in that form. What matters therefore is the substance and not the form of the application.
The appeal was dismissed. The court’s power under CPR 3.10 was sufficient in this case to remedy the error in using N325 for the application for the warrant and not seeking permission.
However, it was acknowledged that the circumstances might be very different in a case where the tenant had not applied for a stay and the court had not therefore heard evidence on the breach.
I am however mindful that had the circumstances been otherwise the appellant might not have applied for a stay at all. Possession might have been obtained without the tenant having the benefit of the important judicial pre-scrutiny for which CPR 83.2 provides. In this case, a genuine mistake was made but if the landlord could not show that it had made a genuine mistake in its error of procedure or that it knew that it was not entitled to proceed in this way and of course if it knew that it was not entitled to possession, then the outcome of the case would have been very different. Subject of course to considering any application on its merits (and as Ms Williams submits, each case must be dealt with on its merits), there seems to me that there would be no question of the court validating the warrant. Indeed the court might well have imposed a costs sanction on the landlord whether or not it was prepared to dispense with the application for permission. I reiterate that CPR 83.2 constitutes an important protection for tenants. It is not to be taken lightly. Social landlords must ensure that from now on their systems are such that the same mistake will not be made in future. I also hope that the Civil Procedure Rule committee will consider whether any amendment can be made to form N325 to make it clear that there are cases in which permission must be sought first. Hopefully also county court offices will be able to identify cases which are not within CPR 83.26 and this will assist the bailiffs who have to carry out warrants.
Comment
Well, this is going to make things interesting for a while….
It is perhaps surprising that the issue of the requirement for obtaining permission for a warrant was effectively not argued on this appeal, as both parties accepted CPR 83.2 was the relevant rule. But there we are.
The position is now clear.
- Any landlord (mostly social landlords, but will also apply to private landlords) seeking a warrant on the tenant’s breach of a suspended possession order must apply for permission for a warrant, with evidence of the breach. (I think this can be on the papers and ex parte – CPR 83.2(5)).
- Use of N325 in such circumstances is wrong, as this is only applicable for outright possession orders (and is approved by the court office as an administrative act).
More complicated is the question of whether an application for a warrant made in the wrong form, without seeking permission, can be remedied. From the judgment, it would appear that the operation of CPR 3.10 on errors of procedure means that the application for a warrant (and thus any resulting warrant) is voidable, not void. It is therefore open to a tenant to seek to have the warrant set aside on the basis that the application should be voided.
However, it is also clearly open to the court to retrospectively remedy the application for permission, with the key questions appearing to be i) was the application a genuine error? and ii) has the court subsequently (eg at a stay hearing) seen sufficient evidence of the breach?
The question of whether the error was genuine is going to be hard for landlords to substantiate, now that this judgment has made the position clear (and will no doubt be widely circulated by landlord and tenant advisors alike). Indeed, in the comments here, a discussion took place on whether applying for a warrant on N325 might amount to abuse of process, now that th correct procedure has been very clearly stated by the Court of Appeal.
I’d anticipate quite a lot of set aside applications till this all settles down.
I think it’s going to be hard for some landlord’s to argue (in any current cases) that applying for a warrant was in genuine error for the application for permission under 83.2. I doubt that many even thought that 83.2(3)(e) applied to SPOs. But, if this argument takes place in the context of a stay hearing presumably landlords will still argue that the court can use 3.10 to cure any problems, as the tenant is getting its `safeguard’ of another hearing (so suffers no prejudice), and the court could also accept an oral application for permission under 23.3(2)(b). If not, the landlord will argue, it will simply have to go off any make a formal application and everyone would only end up in the same place anyway in a few weeks’ time.
Given the fact that the application for permission can be made without notice, presumably the landlord will only have to show that it has `some’ evidence of breach, to convince the court that it’s request for a warrant is not completely without foundation. There cannot be a mini-trial on the permission application, and the tenant will always have the safeguard of the ability to make the stay application.
The interesting area will be, as you note, that relating to evictions that go ahead now, where permission hasn’t been sought. Are those potentially an automatic abuse of process? What if, on the facts, the tenant HAD breached. Presumably that has to be decided at the hearing…
That all sounds about right. The trickier bit would be if eviction has just taken place!
I’m not sure that whether the tenant had actually breached or not would be relevant to a set aside application in the future (agreed on likelihood of CPR 3.10 being used on current warrant applications). If the landlord had knowingly used the wrong approach (or possibly, ought to have known), it is going to be quite a hurdle to get over to get the court to effectively condone that. Of course, the breach would be relevant to any further application for permission.
and interesting point raised by colleague, viz will those keenest to look at whether permission was applied for (post-eviction) be homelessness depts, keen to push back on duty to rehouse and dump the issues/tenant back at the landlords door…so only safe option for landlords is to apply pronto (rather than take the risk of evicting without permission for warrant)
I’d think any eviction where there has been no stay application/hearing presents a clear risk.
A rather worrying decision.
This appears to reverse the effect of the CoA in London Borough Hackney v White (1995) 28 HLR 219* and the HC in AA v Southwark [2014] EWHC 500 (QB) which in 6 year cases held that it could not be corrected under the CCR equivalent of CPR3.10. One notes neither case was referred to in the Cardiff v Lee judgment.
*The leave, therefore, which the Order requires is not a mere formality. …..
For the reasons that I have earlier indicated I am firmly of the opinion that a failure to grant leave under Ord. 26, r.5 is much more than a simple irregularity. It is a very important provision for the reasons I have indicated. In my view it is not saved by any application of Ord. 37, r.5 if there is a breach of Ord. 26, r.5.
This is true and I was wondering about Hackney v White. It is, after all, the same mandatory language on permission after 6 years in 83.2(3)(a) as 83.2(3)(e). I think that in practice, it would be virtually impossible to ‘condone’ a failure to get permission on a 6 years case, because the key element here was that evidence of breach was before the court before the warrant was executed. There could be nothing comparable on a 6 year case. Nonetheless, the two (three with AA) decisions sit very awkwardly together.
Arg. Someone is going to have to argue this out properly. – No disrespect, but I note that this was dealt with by generalist junior juniors from the same chambers!
You could construct something along the lines that 83.2(e) doesn’t apply on the precise wording of it given the way SPOs are actually worded themselves.
Most SPOs read: T to give L possession on XX/XX/XX, suspended on terms L pays current rent plus £x per week, first payment XX/XX/XX, costs.
You could argue that landlords remedy is not subject to a condition being fulfilled. It is there in black and white with a set date. The suspension is conditional but the suspension is not a remedy within the meaning of the rules.
That interpretation would also preserve the position in the COA authorities Aldwinkcle & Jephson …
Not clear cut I grant you, but worth a whirl surely given the administrative armageddon this will cause otherwise.
And how is this whirl to take place? This was Court of Appeal – and given the parties’ agreeing on the 83.2 point, nobody is going to the Supreme Court on that. So someone would have to take a current case all the way to the Supreme Court.
There is an argument that the ‘remedy’ in 83.2 is the possession order, not the warrant, and the date of possession has indeed been given in the SPO. But I’m not sure how that would sit with 83.2(4)(f).
Not if Lee was decided per incuriam – which it was because the applicability of 83.2(3) was taken as applying to SPOs without argument, or if the conclusion on the point was not part of the ratio of the case (which it wasn’t). If that is right, you could just run any other SPO case up on that point, and there are plenty of those around and the COA can make a proper determination after hearing argument on the point.
83.2(4)(f) only bites if you need permission under 83.2(3) in the first place, so its not that helpful. It would sit fine with the other interpretation any way, given that it applies to all other sorts of writs/warrants.
True. Though I don’t think the absence of Aldwinckle gets you anywhere much on per incuriam, as it was simply decided on the old County Court rules (and indeed expresses a wish for their harmonisation with the High Court rules, which arguably CPR 83 achieves.) Ditto Jephson.
That 83.4(f) applies to all sorts of other writs and warrants was rather my point.
It would all have to turn on the definition of remedy – is that the possession order per se, or ‘order plus execution’
Does anyone know if there any reason that this wouldn’t apply to warrants in mortgage cases?
On a suspended possession order? Good point. Can’t see why not, so long as suspension was continuous and on terms.
To avoid any problem with the warrant of possession it seems to me that you would have to issue an application to be dealt with without a hearing for which there is a court fee of £100 (that is, unless the court decides it should be with a hearing and then its £255).
A landlord would, normally, be granted costs to be paid by the defendant (they never are) and therefore the total indebtedness due from the tenant increases every time there is a warrant of possession. Not just by the cost of the warrant £121 but also the application fee.
That’s apart from clogging the county court system with even more paper work more paperwork.
Oh! and then there is the further delay in the county court dealing with the application.
Great idea!!!!
I don’t think that the District Judges are any more keen on this ruling than the landlords/mortgage companies.
We’re going to have to make lots of applications for permission (without notice, £100 per time), but they are going to have to sift them and approve them. More box work for them, more delays for us, and another chunk of money to be paid.
Which ends up adding to the morgtagees’ debt or the tenant’s, and in reality just creates a deeper black hole in everone’s budgets.
Hopefully someone will amend the CPR in such a way that this permission step can die a quick death.
I use the PCOL system to submit applications for SPO’s and after breach apply online for a warrant. Is the PCOL system going to be amended to include this step. It would appear I now have to make an online application for a hearing. Then make a manual application for permission to enforce the warrant. Then go back to an online application for a warrant.
Is there a need for permission where the condition is simply payment of arrears by instalments – the most common situation? On a strict interpretation of cpr83.2(3e) it is but this could be seen as contradicted by CPR 83.26(7) which requires a certificate (on the N325) that there has been a breach of condition by failure to pay an instalment. Why should the certificate be required if permission is required? There doesn’t seem to be much judicial discretion to exercises where the claimant says the instalment has not been paid in such a certificate.
There is a need for permission.
First, 83.26(7) only applies where there will also be execution against the judgment debtor for sums owed, not just possession, via 83.26(6). And then 83.26(7) is not just a certification of breach, it is a statement of the sums remaining due under the money judgment portion of the SPO on which execution is sought. (And it will not be an N325)
I am not sure that you are right. There are disjunctive words in cpr83.26(7): “In a case to which paragraph (6) applies or where an order for possession has been suspended on terms as to payment of a sum of money by instalments,” So I agree that 26(7) applies where there is execution – ie paragraph (6) applies, but surely it also applies where the order is suspended, even if there is no execution.
The more general point is what is the practical point of an application for permission where there is already a signed statement from the claimant on the certificate in the middle on the right of the N325 ” that the whole or part of any instalments due under the judgment or order have not been paid”. All that will happen is that exactly the same statement will be put on the back of the N244 if an application without notice is made. It will of course mean judicial consideration, but does it really serve any purpose in the case of social landlords subject to all sorts of other regulation if they get it wrong and where, in the case of councils, they are quite used to making quasi judicial judgements as part of their homelessness powers (s202) or in my case advising council comittees on licensing applications in a way that once upon a time would have been done by magistrates under the licensing act 1964.
The net result of all this will just be delay, increased arrears for councils and social landlords, increased costs and very little benefit for the small proportion of cases where private landlords may just be abusing the system. My experience in the past before the 2014 amendments was that judges making SPOs in ASB cases always considered whether the terms of suspension were such that permission was needed to issue a warrant on breach and made the order accordingly. They could take into account both the terms of the SPO and the nature of the claimant (social landlord or otherwise). That worked perfectly well without any injustice that I ever came across. though I will stand corrected if anyone can point to a case where that occurred.
Sorry Geoff – you are right on the disjunctive bit – I was trying to do three things at once. Yes, it does apply to a rent arrears SPO (but then, that is also effecting a money judgment).
The point on a N325 is that a) the validation is that ‘the defendant has not vacated the land as ordered’. It therefore only works for outright orders, and b) there is no judicial consideration – it is done by court office only. The certification is for sums due (and sought under the warrant). This would obviously be total arrears and costs, not evidence of a breach per se.
What is required for permission is evidence of the breach – what instalments missed from when and so on, not a mere statement that ‘instalments have been missed’.
I’m afraid that the rest doesn’t change anything. Unless or until the court of appeal or Supreme Court have a stab at this, you will need permission, whether that is a fair requirement or not. And given the accumulation of s.204 appeals here, I’m not sure that holding up s.202 review decisions as an example of good making of quasi judicial decisions by councils is necessarily the best idea ;-)
Now that some of the dust has settled it is a relief to have read the report received today via Lexology/PLA from Mr Timothy Waitt (of Anthony Gold solicitors).
Apparently the case is “being hailed as a key case for landlords and tenants. But it in fact tells us nothing that a good student of the CPR couldn’t tell you”. What a shame then that no-one could find said student for the past two years…
And it’s interesting to read that “The court of appeal confirmed the very straightforward words of CPR 83.2.”. Would these be the same words that LJ Arden was referring to when she said “In my judgment Ms Walters is right to say that despite its opaque language CPR 83.2 contains an important protection for tenants”?
So in simple lay terms, if a landlord or mortgagor claims there is a breach of a suspended possession order, an order for permission to apply for a warrant should be granted if on the face of it the claimant makes the case that the terms of the suspended possession have been breached. There would be an opportunity for the defendant to have that order (for permission) set aside if the defendant were able to show that there hadn’t been a breach or that was considerably less than claimed. (useful protection for the defendant I think, but also a chore for the claimant)
if permission is granted, the warrant applied for, but the warrant is stayed by the application of the defendant. then if a further warrant is applied for presumably permission also has to be applied for again.
I was just wondering if there was any time limit between permission being granted and the warrant being applied for?
It is a combined form for rent arrears SPOs – for application for permission and warrant N325A, or for re-issue of warrant N445.
I’m a secured tenant with the Council I had a suspended possession order 2015 [personal details edited by NL]
Donna, we can’t offer individual advice via the site, but I would strongly suggest you seek advice from a housing solicitor or law centre as soon as possible. You can find one through the links in the foot of the page.