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21 October 2016 | Comment | Article by Bethan Gladwyn

Surprise Court of Appeal decision causes concern for suspended possession orders

The Court of Appeal has handed down a decision in the case of Cardiff Council v Lee which significantly affects any cases where a suspended possession order has been made and may delay the ability to seek an eviction for breach of the conditions of suspension.

The facts of the case contain nothing out of the ordinary – a local authority landlord seeking possession for anti social behaviour secured a suspended possession order and when the conditions on suspension were breached, it completed form N325 and filed it at court. A warrant was issued.

However, the tenant then argued that the landlord should have sought permission from the court before issuing the warrant. The decision of the Court of Appeal indicates that the tenant is correct – albeit that the court were prepared in this case to grant permission retrospectively.

The need to seek permission will come as a surprise to those in the social housing sector used to the common understanding – which is that as soon as a suspended order is breached, the warrant may be issued. The case will affect rent arrears claims as well as orders made for other breaches.

The argument arises from a new draft of the rules which relate to the issue of a warrant, which came into effect in April 2014. CPR 83.2 provides a list of circumstances where permission to issue a warrant is required. One of these circumstances is where:

“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” (para e)

It was accepted by both parties in the case that permission should have been obtained and so the Court of Appeal did not have to look at whether or not the amendment to the rules was intended to have this effect. Hence arguments about whether the possession order was a “remedy” and whether non-compliance with conditions attached to the order amounted to the same as “fulfilment of any condition” were not considered.

The implications for the sector are immense, and include:

  • Additional costs – the application will incur a fee of up to £255. If the court accepts the application on the papers, the fee is £100. In April to June this year, 18,186 warrants were issued in the courts in England and Wales. If each of those had required an application the court fees alone would have been somewhere between £1.8 million and £4.6 million. Whilst this figure will include warrants issued on absolute orders, the majority of possession orders which are made are suspended or postponed so it is reasonable to assume that a significant number will require a further application fee after the Order is made.
  • Then there are the costs of dealing with a contested application if the judge feels a hearing is necessary. That could result in a second trial of the action if the breach is denied. Hence the additional cost could be very significant indeed.
  • Delay – at the moment following a breach the only delay is caused by the bailiff’s diary. If permission is needed then on a best case scenario no warrant can be issued until the judge has been able to look at the papers. If a full hearing is listed the delay will be significant.
  • Concern for witnesses – who, having suffered the trauma of giving evidence at trial once may be required to give evidence again at a further hearing on any later breach.
  • New issues – can tenants who have been evicted without permission seek to re-open their cases? Will permission be needed to re-issue a warrant which has previously been suspended (more than a year before) – presumably so – resulting in third and fourth trials of the same defendant?

The court emphasised that the rule applies to protect tenants. There is of course already the protection which is afforded by the ability of the tenant to apply to suspend the warrant once issued, which of course will still apply.

It is likely to only be a matter of time before the question of whether or not permission is indeed required is argued again before the courts as the implications are so significant for the sector.

In the meantime, landlords will need to consider their options which might include:

  • Seeking postponed orders (whereby a second application must be made following breach to fix a date – courts are now familiar with the process of dealing with this application on the papers)
  • Ensuring provision is made within the SPO for any application to be dealt with on the papers
  • Considering other options – such as demotions.
  • Making the application for permission before issuing a warrant

If you require advice on this issue having read this blog please call Bethan Gladwyn or Rebecca Rees.

Author bio

Bethan Gladwyn is head of the housing management team as a result of her capability and specialist knowledge in her field of law. A specialist in social housing law and practice, anti-social behaviour and landlord and tenant (residential), Bethan assisted in setting up Wales’s first anti-social behaviour unit at Hugh James.

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