There has been an important decision in the Court of Appeal which affects all possession claims where a suspended possession order ("SPO") has been made, whether for rent arrears or other breaches, including ASB.

The relevant case is Cardiff City Council v Lee [2016] which was decided in the Court of Appeal last Thursday, 19 October.

The background is that a tenant applied for a suspension of the possession warrant. The District Judge dismissed the application because there had been a further breach of tenancy. The tenant appealed and the Circuit Judge agreed with the District Judge. The tenant made a further appeal to the Court of Appeal.

The tenant argued that no warrant for possession could be issued without permission of the court. The Civil Procedure Rules state at Part 83(3)(e):

"A relevant writ or warrant must not be issued without 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..."

The argument was that the warrant of possession is the 'remedy' and the 'fulfilment of condition' required to be demonstrated first is the breach of any terms of suspension. This effectively means that, before a warrant can be issued, permission must be obtained from the court.

For the avoidance of doubt, it will only apply to suspended possession orders and not outright possession orders.

What this means for you

If there is a breach of an SPO and wish to enforce by issuing a warrant, this will now be a two-step process:

  1. Apply for permission to enforce – this can be done without notice (using Application Form N244) and without a hearing (unless the Judge is unhappy with any aspect of the application). There will be a further court fee £100 for the without notice application.
  2. Once you have permission, you can issue the warrant in the usual way.

There is an argument for making the application on notice because that would give the tenant an opportunity to make any representations or proposals which would avoid an application by the tenant at a later stage – this is something to consider.

Finally, the judgment leaves it open to the court to apply the ruling retrospectively, meaning that a tenant could apply for a warrant to be set aside where permission was not first sought.

You should begin complying with Part 83(3)(e) with immediate effect. Not to do so, in the wake of this decision, could amount to an abuse of process.

If you have any queries, or need any assistance, please do not hesitate to contact us.

About the author

Mary Rouse Partner

Mary specialises in lender litigation and in housing management advice for registered providers. With some 20 years’ experience in both of these sensitive areas, she is able to offer clear advice and pragmatic solutions.