Ever since Cardiff City Council v Lee [2016] EWCA Civ 1034 (our note), there has been a ferment and a gnashing of teeth amongst landlords, particularly social landlords, about the best way to deal with the ‘new’ requirement under CPR 83(2) to make an application with evidence for permission to request a warrant of possession on breach of a suspended possession order.
There was therefore much excitement yesterday about the appearance of new forms N325A and N445 (reissue of warrant) on the court form finder. As far as I can see, the addition to both is to add a certification that
(3) a statement of the payments due and made under the judgment or order is attached to this request.†† (for rent arrears cases only)
It has been suggested that this obviates the need to make a CPR 83(2) application for permission, at least for rent arrears SPOs ( and including mortgage cases). It appears – though I’ve not seen confirmation – that the Rules Committee consider that it does. Presumably because the provision of a statement of payments due and made would satisfy the evidential requirements of CPR 83(2)(4)(b) and CPR 83(4) provides that an application for permission may be made in accordance with CPR 23, not must be – so that the new N325A is both application for permission and request for warrant in one. The form, according to the Rules Committee, will have judicial scrutiny to check the evidence, rather than just administrative approval. One would presume, or at least hope, that there will be guidance about this issued.
People have also been puzzled about what it means for ASB cases. I think the answer is that it doesn’t change a thing for ASB SPOs, and that Cardiff v Lee still applies. So the requirement is still for a separate application for permission to be made.
It also appears that the CP Rules Committee has agreed to consult on taking SPOs out of the remit of CPR 83(2) altogether, possibly in conjunction with or alongside an MoJ consultation. The implementation of a long term solution is hoped for, but not guaranteed for, by April 2017.
Think this is procedurally interesting. Do you have the full blown factual and legal arguments re reasonableness, EA proportionality etc at the permission stage – whether at the first hearing or after directions? If so and if then permission is granted to issue the warrant do you in reality have another bite at the cherry via an application to suspend during the intervening period which may only be about 3-4 weeks before the warrant is due to be executed.
I expect in a lot of cases there won’t be a huge factual change in circumstance between the permission hearing and the enforcement, so will DJs just take the view that the tenant was unable to resist the permission application so eviction is just a formality?
The permission application is a simple question of evidencing breach of conditions of SPO. It is a without notice application.
The tenant can make a stay application as per usual.
… but if, as in a case I have now, the application for permission is on notice and is heading towards a 4 hour hearing with statements and medical evidence, then, should the permission be granted, will the tenant have had their chance in reality?
Also whether a SPO has been breached may be a simple question but the answer is often not.
I think that while the tenant may formally be able to make a subsequent stay application, unless there has been some change of circumstances, their prospects would be nil.
Yes, I agree
We received an on notice application from the claimant family mosaic and as tenant confirmed her housing benefit had been reinstated we successfully got an order that the claimants application be dismissed.
Better news for tenants I think