On the 18 or 19 October 2016 the Court of Appeal will consider in Cardiff County Council v Lee (Flowers) whether, as a result of changes to the Civil Procedure Rules in 2014, a landlord requires permission from the county court before a warrant of possession can be issued where it is alleged that suspended terms have been breached. Andrew Lane considers the argument, and its implications for landlords.
Where a landlord is of the view that there has been a breach of any terms of a suspended possession order – such as a failure to pay the required weekly sum towards arrears of rent or a breach of specified terms of the tenancy agreement in relation to anti-social behaviour – then should they wish to move towards eviction they simply file a form N325 with the court, along with the appropriate fee, and a warrant of possession is issued as an administrative process and served on all parties.
The defendant can of course make an application in response, by using form N244, and seek a stay of execution of the said warrant (and in some instances may in addition go 'further' and seek a set aside of the possession order or variation of the suspended terms).
The tenant argument
In Cardiff County Council v Lee (Flowers) it is being argued on behalf of the tenant that CPR 83.2, which expressly applies to warrants of possession , requires the court to give permission before any warrant of possession is issued.
That is because of their reading of 83(3)(e) (with my emphasis added in bold):
"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..."
In short, it is said that the warrant of possessions the 'remedy' and the 'fulfilment of condition' required to be demonstrated first is the breach of any terms of suspension.
If this argument is right, the landlord would need to apply for permission to issue a warrant of possession by using the usual Part 23 procedure , though the application could be made without notice being served on the other parties, unless the court directs otherwise .
This would add a layer of:
- cost (not only of the application but of the witness statement that would need to accompany it to "satisfy the court that the applicant is entitled to proceed to execution" , and any hearing thereafter listed, if any), and
- delay (normally the application would be dealt with on the papers, which would delay the process anyway, but there would be nothing to prevent the court ordering a hearing).
to the existing process of course, though if courts adopted a practice of requiring the application to be served on the other parties it may "front-load" stay hearings for the benefit of all if a hearing is held.
In the interim, even if the Lee argument is correct, application of CPR 3.10 may well make the argument worthless in cases where the matter is before the court anyway upon a tenant's application to stay execution of the warrant:
3.10 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.
Far be it from me to pre-judge the views of the Court of Appeal, so I am going to, but it seems to me that, at the very least, the tenant's argument has some force. In particular:
1. RSC Order 46.2 provided:
"A writ of [possession] to enforce a judgment or order may not issue without permission of the court..."
in 5 specified cases, including at 46.2(1)(d):
"...where under the judgment or order any person is entitled to a remedy subject to the fulfilment of any condition which it is alleged has been fulfilled..."
2. This would suggest that permission of the court is indeed required given the similar (same) wording used now in CPR 83.2.
3. It is fair to say that the Court of Appeal in Leicester City Council v Aldwinckle (1992) 24 HLR 40 did not apply the Fleet Mortgage case (see footnote 7) but that was simply in the context that there was (then) no similar rule applying for the county court and the court could not write in the 'missing' requirement. Lord Justice Leggatt remarked at :
"In my judgment it does not follow from the Fleet Mortgage Ltd case that where rules of Court do not require notice to be given to a tenant, the court can of its own motion insist on such notice where leave of the court to issue a writ of execution is not necessary. The court undoubtedly has inherent power to prevent abuse of proceedings and avoid oppression: cf. Beale v. MacGregor (1886) 2 T.L.R. 311. But in my judgment, even though Miss Aldwinckle was not expecting execution to be levied against her possessions, the use of available process does not of itself constitute abuse nor amount to oppression; and the court would be interfering unjustifiably with the existing policy of Parliament were it to introduce its own requirements as to additional conditions that have to be satisfied before execution may issue."
4. Not only did the 2014 amendments 'do away' with RSC Orders 45 and 46 but they also repealed CCR Order 26.17 which had simply required "the person desiring a warrant of possession...[to]...file a request in that behalf".
5. "Civil Procedure Volume 1" (2016) says at 83.2.1:
This rule is a combination of those provisions previously at RSC Ord 46.2 and CCR Ord 26.5."
The main counter to the above is to consider the Fleet Mortgage case as open to some criticism, not least its claim that the interests of justice went some way to supporting the interpretation it preferred without any acknowledgment of the fact that a tenant is able to apply for a stay of execution post-issue of the warrant (and all the suggested process does is extend the time for this and, possibly, introduce a hearing at the court's instigation at which such issues could be raised).
I have not had the benefit of seeing the parties' no doubt impressively well-researched skeleton arguments in Cardiff County Council v Lee (Flowers) but my preliminary view is that there is clearly some merit in the tenant's case.
But as I said on Twitter recently in respect of the hearing, the real advice is to "watch this space" and, where appropriate and necessary in the interim, consider the operation of CPR 3.10 in any event to ensure this procedural point does not detract from the substantive issue that can be dealt with at the hearing of the defendant's application.
 CPR 83.2(1)(d)
 CPR 83.2(4)(f) – i.e. by N244 form
 CPR 83.2(5)
 CPR 83.2(4)(f)
 Subject to certain exceptions not relevant here
 With RSC Order 46.4(1) providing that service on the other parties was not required unless the court provided otherwise (i.e. as with
 Fleet Mortgage and Investment Co.Ltd v Lower Maisonette, 46 Eaton Place Ltd  1 WLR 765 – interpreted RSC Order 46.2(1)(d) as including a tenant against whom forfeiture had been ordered subject to conditions that forfeiture should not operate if he performed certain obligations
 Permission to issue certain warrants