We foreshadowed this appeal hearing here, and now we have the Court of Appeal judgment. And it is important.
Cardiff City Council v Lee  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”.
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  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.
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.