Armstrong v Ashfield District Council (2018) EWCA Civ 873
Where a suspended possession order has provided for a future date of discharge, does that take effect even when the landlord has applied for a warrant on breach of terms in the interim and those proceedings are ongoing?
Mr A was the secure tenant of Ashfield DC. Following possession proceedings for breach of tenancy agreement, a suspended possession order was made in the following terms:
“1. The (appellant) do give the (respondent) possession of (the property) on or before 4.00pm on 4 July 2013.
2. The order for possession is not to be enforced and the tenancy will continue so long as [the appellant] complies with clauses 6.2, 8.2 and 8.6 of his tenancy agreement, dated 11 September 2009.
3. The (respondent) shall not be entitled to apply for a warrant for possession so long as the (appellant) complies with clauses 6.2, 8.2 and 8.6 of his tenancy, and if such application is to be made it must be in writing, served on the (appellant) and any hearing reserved to DJ Millard, if available.
4. Paragraphs 1 to 3 inclusive of this order shall be discharged on 4 June 2014.”
It appears that Mr A did not comply with the clauses of his tenancy agreement. In October 2013, Ashfield wrote to Mr A setting out further breaches of the tenancy and their intention to apply for a warrant. Ashfield then applied for a warrant, without serving a copy on Mr A.
Mr A applied for a stay and, eventually, the issue of whether Ashfield was entitled to apply for a warrant as it had came on for trial on 25 June 2014 (after the ‘discharge date’ in the SPO).
At first instance, the only issue raised was compliance with para 3 of the SPO. The Circuit Judge dismissed this, on the basis that:
“It is perfectly obvious what Judge Millard wanted was to ensure that before the order for possession was enforced there should be a judicial review of the legitimacy of ending the [appellant’s] possession by enforcing a suspended order he had made. That has been achieved, that is why we are here today …”
Having found the further breaches to be made out, the stay of warrant was lifted.
Mr A appealed to the High Court, where the issue of the discharge of the SPO under para 4 was also raised. Mr A argued that the possession order had already ben discharged by the date of the 23 June 2014 hearing, so the warrant could not stand as not founded on a possession order. The High Court held:
In relation to the first ground of appeal, she held that the provision in paragraph 4 of the June 2013 order for automatic discharge of the suspended possession order did not, on the proper interpretation of that order, apply in circumstances where the appellant had breached the terms of the tenancy agreement during the period of the suspension of the possession order and in that time the respondent had made a valid application for a warrant for possession. As regards the alternative ground of appeal, she held that HHJ Pugsley had been entitled to look at the substance of the matter as he did, and to proceed to examine the merits of the respondent’s claim to be entitled to proceed to execute the warrant for possession it had obtained with a view to enforcing the possession order contained in the June 2013 order.
Mr A appealed to the Court of Appeal.
The Court of Appeal held:
The SPO was made in exercise of the discretion under s.85 Housing Act 1985. As per Lord Neuberger in Knowsley Housing Trust v White  UKHL 70
“In my view, on a fair reading of section 85, it is open to the court to include a proleptic discharge provision in a suspended order for possession. The section should be construed, as far as permissible, to confer as much flexibility as possible on the court, and in such a way as to minimise future uncertainty and need for further applications. The section permits a proleptic discharge provision, in my view, not least because the court can always revisit the provision, effectively at the suit of the landlord, as already mentioned, if the terms of the suspension are not complied with. The wording of section 85(4), particularly if read with the practicalities in mind, does not preclude the court from effectively committing itself in advance to discharging a suspended order, provided that (a) certain conditions are complied with, and (b) neither the landlord (by applying for a warrant of possession) nor the tenant (by applying under section 85(2)) seeks, in the meantime, reconsideration of the terms of the discharge provision.”
In this light, para 4 of the SPO had to be read as predicated on the tenant complying, and/or the tenant not having applied under s.85(2) to discharge or vary the order in the meantime.
In the present case, the conditions stipulated by Lord Neuberger for a proleptic discharge provision to take effect were not satisfied: (a) the respondent claimed that the appellant had failed during the period of suspension of the possession order to comply with the conditions imposed by the court as the basis for that suspension of the order for possession in favour of the respondent; and (b) the respondent took a relevant procedural step before 4 June 2014 to assert that claim by issuing its application for a warrant for possession. In these circumstances, Lord Neuberger’s statement indicates that there would need to be a trial of the issue of alleged breach of the conditions during the period of the suspension of the possession order, not that there should be a discharge of the possession order if it transpires that a trial cannot be arranged before the end of the period of suspension. The June 2013 order should be interpreted accordingly.
Even if this was wrong, it was implicit in the court’s directions for a trial on 23 June 2014, that the date in the 4 June 2013 order had been extended. Secondly, the court had the power under CPR 3.1(2)(a) to extend time, even after the time limit had expired, including on an application by the claimant after that date.
On the second issue on appeal, compliance with para 3 of the order:
HHJ Pugsley was plainly entitled to adopt the approach he did and to treat as immaterial in the circumstances the failure by the respondent to follow the procedure prescribed in paragraph 3 of the June 2013 order. The intended effect of paragraph 3 was that there should be a judicial determination whether any allegation of breach of the conditions stipulated in the order was made out, before execution of the order for possession could proceed. The trial before HHJ Pugsley ensured that this substantive requirement was satisfied, even though the precise procedure by which this was arrived at was somewhat different from that set out in paragraph 3.